/raid1/www/Hosts/bankrupt/CAR_Public/091009.mbx
C L A S S A C T I O N R E P O R T E R
Friday, October 9, 2009, Vol. 11, No. 200
Headlines
A.H. BELO: Certification of Shareholder Suit Denied in August
A.H. BELO: Defends Calif. Suit Over Wage Payment Violations
ACADEMY OF COURT REPORTING: Paying $7.8 Million to Settle Lawsuit
ADOBE SYSTEMS: Has Yet to Answer Suits Over Omniture Proposal
ADVANCE AMERICA: Inked Settlement of "McGinnis" Suit on Sept. 23
ADVANCE AMERICA: "Magee" Suit v. Arkansas Unit Dismissed
ATCO GAS: Alberta Court Okays BridgePoint Funding Plaintiffs
C.R. BARD: St. Francis Medical's Appeal of Junked Suit Pending
CANDELA CORP: Faces Suits Over Proposed Syneron Merger in Mass.
COASTAL CONDOMINIUMS: Sued in Chinese Drywall Class Action
FINOVA GROUP: Defends TLP Noteholders Claims Pending Arbitration
FIRST DATA: Motion to Dismiss Amended ATM Antitrust Suit Pending
GENTA INC: Defends Remanded Shareholder Complaint in New Jersey
HORIZON BANK: Awaits Final Approval of Indiana Suit Settlement
INKSTOP INC: Workers Sue for Final Three Weeks' Pay
LENDER PROCESSING: Consolidated Price Fixing Suit Ongoing in NJ
LIBERTY MEDIA: Settlement of Stockholder Suits Pending in Del.
MDL 1379: High Court Hears Argument in Reed Elsevier v. Muchnick
MEDEFILE INT'L: Class Certification in TCPA Breach Suit Pending
NPC INTERNATIONAL: Defends Suit Over FLSA Violations in Kansas
OZ MINERALS: Discloses Class Action in Federal Court of Australia
PALL CORP: Consolidated Securities Fraud Suit Ongoing in EDNY
PRO-TECH INDUSTRIES: Wage and Hour Lawsuit Settled in June 2009
PROSPER MARKETPLACE: Lawsuit Over Securities Violations Pending
THOR INDUSTRIES: Suits on Formaldehyde in Housing Units Pending
VIXEN CREATIONS: Workers Complain About Lack of Overtime Pay
WALT DISNEY: Court Tosses Suit Advocating Segway Park Transport
WHOLE FOODS: "Kottaras" Antitrust Complaint in Early Stages
ZYNEX INC: Defends Suits on Restatement of Unaudited Statements
Asbestos Litigation
ASBESTOS ALERT: Black Butte Ranch to Pay $750 for Cleanup Breach
ASBESTOS ALERT: Precision Demolition to Pay $36T for CAA Breach
ASBESTOS ALERT: OSHA Charges Superior General for Safety Breach
ASBESTOS UPDATE: Dartford Court Rules on Two Pensioners' Deaths
ASBESTOS UPDATE: EPA Testing Ongoing at Zonolite Plant in Wash.
ASBESTOS UPDATE: 14 Asbestos Tanks Found in Malta Gov't. Schools
ASBESTOS UPDATE: Chattanooga Local Pleads Guilty for CAA Breach
ASBESTOS UPDATE: WSP Consultant Calls For Banning Hazard in UAE
ASBESTOS UPDATE: UCATT Criticizes Straw Over Compensation Claims
ASBESTOS UPDATE: Asbestos Found in Newtown High School in Conn.
ASBESTOS UPDATE: Fostoria Bldg. in W.Va. to be Cleared of Hazard
ASBESTOS UPDATE: Hazard Uncovered in Schroon School on Sept. 23
ASBESTOS UPDATE: H.B. Fuller Settles 1 Case During Aug. 29 Qtr.
ASBESTOS UPDATE: Peirce Clients Encouraged to See Pulmonologists
ASBESTOS UPDATE: Inquiry on Mosaic K2 Asbestos in Canada Ongoing
ASBESTOS UPDATE: Swindon Schools, Gov't. Bldgs. Contain Asbestos
ASBESTOS UPDATE: West Lancashire Criticized for Botched Cleanup
ASBESTOS UPDATE: Ad-Bar Consultants to Manage Cleanup at Galilee
ASBESTOS UPDATE: Asbestos Delays Opening of Shoreham Elementary
ASBESTOS UPDATE: Hoosiers Seeking Change in Asbestos Regulations
ASBESTOS UPDATE: Tesoro Refinery May Have Asbestos, SCAQMD Says
ASBESTOS UPDATE: St. Sophia Camp in Calif. Slated for Demolition
ASBESTOS UPDATE: Calif. Court Flips Dismissal of Campbell Action
ASBESTOS UPDATE: Appeal Court Upholds Pacific's Summary Judgment
ASBESTOS UPDATE: Tenn. Court Reverses Ruling in Hensley Lawsuit
ASBESTOS UPDATE: RPM Int'l. Has $396.77M Liabilities at Aug. 31
ASBESTOS UPDATE: 10,271 Actions Ongoing v. RPM Units at Aug. 31
ASBESTOS UPDATE: RPM Units' Bid in Coverage Action Still Pending
ASBESTOS UPDATE: Dayton Property Fined $$7.2T for Storage Breach
ASBESTOS UPDATE: 2 Cases Filed During Sept. 14-18 in Madison Co.
ASBESTOS UPDATE: Judges to be Featured in HB Conferences in N.Y.
ASBESTOS UPDATE: Seoul to Safely Manage Asbestos in Urban Bldgs.
ASBESTOS UPDATE: Calderdale's Council to Lobby v. Asbestos Rule
ASBESTOS UPDATE: Mancuso Asbestos Case Still Ongoing in Syracuse
ASBESTOS UPDATE: 400 North Wales Schools Still Awaiting Cleanup
ASBESTOS UPDATE: Charges Against San Diego Gas Dropped on Oct. 6
ASBESTOS UPDATE: Construction Crews Finds Hazard at N.Y. School
ASBESTOS UPDATE: Aussie Lawmaker to Launch Civil Liability Bill
ASBESTOS UPDATE: Ward County to Probe Hazard in Emerson Building
*********
A.H. BELO: Certification of Shareholder Suit Denied in August
-------------------------------------------------------------
The U.S. Court of Appeals for the Fifth Circuit, in August 2009,
affirmed the denial of class certification in a consolidated
shareholder suit filed against A. H. Belo Corporation, Robert W.
Decherd, and Barry T. Peckham, a former executive officer of The
Dallas Morning News.
On Aug. 23, Aug. 26, and Oct. 5, 2004, three related lawsuits,
now consolidated, were filed in the U.S. District Court for the
Northern District of Texas, by purported shareholders of Belo,
arising out of the circulation overstatement at The Dallas
Morning News. James M. Moroney III, an executive officer of The
Dallas Morning News, was added later as a defendant.
The plaintiffs seek to represent a purported class of
shareholders who purchased Belo common stock between May 12,
2003 and Aug. 6, 2004, and allege violations of Sections 10(b)
and 20(a) of the Securities Exchange Act of 1934.
On April 2, 2008, the court denied plaintiffs' motion for class
certification and on April 16, 2008, plaintiffs petitioned the
U.S. Court of Appeals for the Fifth Circuit for permission to
appeal that denial.
On June 17, 2008, permission was granted and on April 2, 2009,
the Fifth Circuit heard oral argument. No amount of damages has
been specified.
On Aug. 12, 2009, the Fifth Circuit affirmed the District Court's
denial of class certification. No amount of damages has been
specified.
Under the terms of the separation and distribution agreement
between A. H. Belo and Belo, the two companies will share equally
in any liability, net of any applicable insurance, resulting from
the lawsuit, according to the company's Aug. 14, 2009, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended June 30, 2009.
A. H. Belo Corporation -- http://www.ahbelo.com/-- owns three
primary daily newspapers: The Dallas Morning News, The
Providence Journal and The Press-Enterprise. They produce
local, state, national and international news. In addition to
these three daily newspapers, the Company publishes various
products in the same or nearby markets, where these daily
newspapers are published. Each of A. H. Belo's daily newspapers
and publications operates its own related Website. It also
operates direct mail and commercial printing businesses. The
Company is a wholly owned subsidiary of Belo. Corp. (Belo).
A.H. BELO: Defends Calif. Suit Over Wage Payment Violations
-----------------------------------------------------------
A. H. Belo Corporation continues to defend against the claims in
a purported class-action lawsuit filed in the Superior Court of
the State of California, County of Riverside.
On April 13, 2009, four former independent contractor newspaper
carriers of The Press-Enterprise, on behalf of themselves and
other similarly situated individuals, filed a purported class-
action lawsuit against A. H. Belo, Belo Corp., Press-Enterprise
Company, and as yet unidentified defendants in the Superior
Court of the State of California, County of Riverside.
The complaint alleges that the defendants violated California
laws by allegedly improperly categorizing the plaintiffs and the
purported class members as independent contractors rather than
employees, and in doing so, allegedly failed to pay minimum,
hourly and overtime wages to the purported class members and
allegedly failed to comply with other laws and regulations
applicable to an employer-employee relationship.
The plaintiffs and purported class members are seeking minimum
wages, unpaid regular and overtime wages, unpaid rest break and
meal period compensation, reimbursement of expenses and losses
incurred by them in discharging their duties, payment of minimum
wage to all employees who failed to receive minimum wage for all
hours worked in each payroll period, penalties, injunctive and
other equitable relief, and reasonable attorneys' fees and costs.
No further updates on the matter were reported in the company's
Aug. 14, 2009, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2009.
A. H. Belo Corporation -- http://www.ahbelo.com/-- owns three
primary daily newspapers: The Dallas Morning News, The
Providence Journal and The Press-Enterprise. They produce
local, state, national and international news. In addition to
these three daily newspapers, the Company publishes various
products in the same or nearby markets, where these daily
newspapers are published. Each of A. H. Belo's daily newspapers
and publications operates its own related Website. It also
operates direct mail and commercial printing businesses. The
Company is a wholly owned subsidiary of Belo. Corp. (Belo).
ACADEMY OF COURT REPORTING: Paying $7.8 Million to Settle Lawsuit
-----------------------------------------------------------------
Robin Erb at the Detroit Free Press reports that The Academy of
Court Reporting will pay out $7.8 million to settle a class
action with former students at its Clawson campus who claimed the
school promised them associate's degrees -- something it can't do
by law in Michigan.
Unlike more traditional universities or colleges, proprietary
schools -- also known as career or trade schools -- can give
diplomas or certificates, but not degrees, Ms. Erb explains.
The Ohio-based school, which has insisted there was no
wrongdoing, also agreed to millions of dollars in tuition
discounts for students wishing to return to class.
U.S. District Judge David Lawson approved the settlement Tuesday
in Bobbitt, et al. v. Academy of Court Reporting, Inc., Case No.
07-cv-10742 (E.D. Mich.).
At least 1,281 students could receive a check -- the size of
which would be based on how much they paid for their classes.
Three students had formally objected to the settlement in letters
to the court, saying it didn't go far enough to cover their costs
and trouble. But Lawson ruled the pact "fair, adequate and
reasonable," calling it a "product of compromise."
Of the $7.8-million shared fund, $2.5 million will go to the
students' attorneys and another portion to pay for a company to
distribute the checks.
The academy's license could be scrutinized by the Michigan
Department of Energy, Labor and Economic Growth, which licenses
Michigan's proprietary schools. Ms. Erb adds.
The Academy of Court Reporting, Inc., is represented by:
Norman C. Ankers, Esq.
Jennifer Z. Belveal, Esq.
Lawrence J. Murphy, Esq.
Arthur Thomas O'Reilly, Esq.
HONIGMAN MILLER SCHWARTZ AND COHN LLP
660 Woodward Avenue, Suite 2290
Detroit, MI 48226-3506
Telephone: 313-465-7000
- and -
Abdu H. Murray, Esq.
MILLER CANFIELD PADDOCK & STONE PLC
840 W. Long Lake Road, Suite 200
Troy, MI 48098-6358
Telephone: 248-267-3255
- and -
Wendolyn W. Richards, Esq.
Larry J. Saylor, Esq.
MILLER CANFIELD PADDOCK & STONE PLC
150 W. Jefferson Avenue, Suite 2500
Detroit, MI 48226-4415
Telephone: 313-963-6420
The Plaintiffs are represented by:
Dean M. Googasian, Esq.
George A. Googasian, Esq.
Thomas H. Howlett, Esq.
GOOGASIAN LAW FIRM
6895 Telegraph Road
Bloomfield Hills, MI 48301-3138
Telephone: 248-540-3333
ADOBE SYSTEMS: Has Yet to Answer Suits Over Omniture Proposal
-------------------------------------------------------------
Adobe Systems Incorporated has yet to respond to the class action
complaints relating to the proposed acquisition between Omniture,
Inc. and the company, according to its Oct. 1, 2009, Form 10-Q
Filing with the U.S. Securities and Exchange Commission for the
quarter ended Aug. 28, 2009.
On Sept. 23, 2009, Richard Miner on behalf of himself and all
similarly situated stockholders of Omniture filed a class action
lawsuit, Miner v. Omniture, Inc., et. al., Case No. 090403559,
against Omniture, the members of Omniture's board of directors
and Adobe in the U.S. Fourth Judicial District Court for Utah
County, Provo Department, State of Utah seeking to enjoin the
proposed acquisition between Omniture and Adobe.
In the event the acquisition is consummated, the plaintiff seeks
to recover an unspecified amount of damages.
The plaintiff alleges that the members of Omniture's board of
directors breached their fiduciary duties to Omniture's
stockholders by failing to seek the highest possible price for
Omniture and that Adobe induced or aided and abetted in the
alleged breach of such fiduciary duties.
Also on Sept. 23, 2009, Christopher R. Barrell filed a
substantially similar lawsuit to the Miner Lawsuit in the U.S.
Fourth Judicial District Court for Utah County, Provo Department,
State of Utah, captioned Barrell v. Omniture, Inc. et. al., Case
No. 090403560. The Barrell Lawsuit names the same defendants as
the Miner Lawsuit, and also names Snowbird Acquisition
Corporation as an additional defendant.
Subsequently, on Sept. 24, 2009, the plaintiff in the Barrell
Lawsuit filed an amended complaint, which added allegations that
the Schedule 14D-9 Solicitation/Recommendation Statement filed by
Omniture on Sept. 24, 2009, contained inadequate disclosures and
was materially misleading.
On Sept. 25, 2009, the Omniture Defendants filed a motion
requesting that the court consolidate the Barrell Lawsuit, Miner
Lawsuit and a substantially similar lawsuit captioned Lodhia v.
Omniture, Inc. et al., Case No. 090403499, in which the Omniture
Defendants, but not Adobe, were named.
In addition, on Sept. 30, 2009, the plaintiff in the Lodhia
Lawsuit filed a response to defendants' motion to consolidate,
agreeing consolidation is appropriate, and also filed a motion
seeking appointment as lead plaintiff in the consolidated action.
The plaintiff in the Lodhia Lawsuit also filed a motion for
preliminary injunction, expedited discovery and expedited
proceedings.
Adobe Systems Incorporated -- http://www.adobe.com/-- is a
diversified software companies. The company offers a line of
creative, business and mobile software and services used by
creative professionals, knowledge workers, consumers, original
equipment manufacturer (OEM) partners, developers and enterprises
for creating, managing, delivering and engaging with content and
experiences across multiple operating systems, devices and media.
It distributes its products through a network of distributors,
value-added resellers (VARs), systems integrators, independent
software vendors (ISVs) and OEMs, direct to end users and through
its own Web site at www.adobe.com. It also licenses its
technology to hardware manufacturers, software developers and
service providers, and offer integrated software solutions to
businesses of all sizes. Adobe has operations in the Americas,
Europe, Middle East and Africa (EMEA) and Asia.
ADVANCE AMERICA: Inked Settlement of "McGinnis" Suit on Sept. 23
----------------------------------------------------------------
Advance America, Cash Advance Centers, Inc. and Brenda McGinnis,
the class representatives in the class action lawsuit of Brenda
McGinnis v. Advance America Servicing of Arkansas, Inc., et al.,
entered into a Stipulation and Agreement of Settlement last Sept.
23, 2009.
The Settlement resolves all claims in connection with deferred
presentment transactions originated in Arkansas from June 1,
2006, through March 17, 2008.
The Settlement Agreement is subject to court approval and certain
other conditions before it becomes final and the lawsuit is
concluded.
The company will take a reserve for this settlement that will
result in a charge against earnings in the third quarter of 2009.
The company's total claims liability should be known before the
end of 2009; however, it will not make any payments under this
settlement until the second quarter of 2010, according to Advance
America's Sept. 29, 2009 Form 8-K filing with the U.S. Securities
and Exchange Commission.
South Carolina-based Advance America, Cash Advance Centers, Inc.
-- http://www.advanceamericacash.com/-- is a provider of payday
cash advance services in the U.S. Advance America Servicing of
Arkansas, Inc., is a subsidiary of Advance America, Cash
Advance.
ADVANCE AMERICA: "Magee" Suit v. Arkansas Unit Dismissed
--------------------------------------------------------
The putative class action suit, Magee and Johnson v. Advance
America Servicing of Arkansas, Inc., has been dismissed with
prejudice, according to Advance America, Cash Advance Centers,
Inc.'s Sept. 29, 2009 Form 8-K filing with the U.S. Securities
and Exchange Commission.
On Oct. 13, 2008, Gary Neil Magee and Charlotte Johnson filed a
putative class action in the Circuit Court of Clark County,
Arkansas alleging that the company's Arkansas subsidiary violated
the Arkansas usury law and the Arkansas Deceptive Trade Practices
Act.
The complaint alleges that the fees charged by the company's
subsidiary to cash checks were interest on consumer loans and
usurious under state law.
The parties seek compensatory damages in an amount equal to twice
the combined interest plus unrelated check cashing fees on the
loans from April 2008 to October 2008, and a declaration that the
transactions are void, plus attorneys' fees and costs.
The Court has granted the company's motion to compel arbitration
on an individual basis.
The agreement to settle the Magee and Johnson v. Advance America
Servicing of Arkansas, Inc. case for an immaterial amount has
been completed.
South Carolina-based Advance America, Cash Advance Centers, Inc.
-- http://www.advanceamericacash.com/-- is a provider of payday
cash advance services in the U.S. Advance America Servicing of
Arkansas, Inc., is a subsidiary of Advance America, Cash
Advance.
ATCO GAS: Alberta Court Okays BridgePoint Funding Plaintiffs
------------------------------------------------------------
Julius Melnitzer at the Financial Post reports that the Alberta
Court of Queen's Bench approved a third-party litigation
financing agreement between BridgePoint Financial Services Inc.,
and plaintiffs in Hobsbawn v. ATCO Gas and Pipelines Ltd., Action
No. 0101-04999.
"This is the first time a Canadian court has approved a private
arrangement of this nature," BridgePoint's John Rossos told Mr.
Melnitzer. "It has created a valuable precedent." Mr. Rossos
can be reached at:"
John P. Rossos
BridgePoint Financial Services Inc.
10 King Street East, Suite 401
Toronto, ON M5C 1C3
CANADA
Telephone: (416) 941-9486
Fax: (416) 941-9035
Mr. Melnitzer explains that the Alberta court's order protects
solicitor-client privilege.
Only the plaintiff's lawyer:
Clint G. Docken, Esq.
Docken & Company
900, 800-6th Ave. SW
Calgary, Alberta T2P 3G3
CANADA
Telephone: (403) 269-3612
Fax: (403) 269-8246
and BridgePoint's lawyer:
Ward K. Branch, Esq.
Branch MacMaster
1410 - 777 Hornby Street
Vancouver, B.C. V6Z 1S4
CANADA
Telephone: (604) 654-2999
Fax: (604) 684-3429
attended the hearing, which proceeded without notice to the
defendants. The court also sealed the financial agreement.
In the underlying lawsuit, Don Hobsbawn, the representative
plaintiff, alleges that ATCO Gas and Pipelines Ltd.'s late
payment penalty was illegal as it violated the Criminal Code's
interest provisions.
A similar case against Consumers' Gas in Ontario resulted in a
multi-million-dollar settlement, but only after years of
protracted litigation including several hearings on preliminary
matters in the Supreme Court.
Mr. Melnitzer's full report is available at:
http://www.financialpost.com/news-sectors/legal/story.html?id=2073594
For additional information concerning the ATCO litigation, see
http://www.docken.com/AtcoGasAndPipelines.asp
C.R. BARD: St. Francis Medical's Appeal of Junked Suit Pending
--------------------------------------------------------------
An appeal of the dismissal of the class action lawsuit, St.
Francis Medical Center, et al. v. C. R. Bard, Inc., et al., Civil
Action No. 07-cv-00031, is pending.
C. R. Bard, Inc., in its Form 8-K filing with the U.S. Securities
and Exchange Commission dated Oct. 1, 2009, announced that the
U.S. District Court, Eastern District of Missouri, has granted
Bard's summary judgment motion and dismissed with prejudice all
counts in the class action lawsuit.
St. Francis has appealed the court's decision to the Eighth
Circuit Court of Appeals.
C. R. Bard, Inc. -- http://www.crbard.com/-- headquartered in
Murray Hill, N.J., is a leading multinational developer,
manufacturer and marketer of innovative, life-enhancing medical
technologies in the fields of vascular, urology, oncology and
surgical specialty products.
CANDELA CORP: Faces Suits Over Proposed Syneron Merger in Mass.
---------------------------------------------------------------
Candela Corp. faces two putative class action lawsuits in
connection with the proposed merger between the company and
Syneron Medical Ltd.
On Sept. 9, 2009, Candela and Syneron announced that they had
entered into an Agreement and Plan of Merger.
On Sept. 15, and Sept. 24, 2009, after the announcement of the
company's proposed merger with Syneron, two putative class action
lawsuits were filed in the Superior Courts of Massachusetts
against Candela and the members of Candela's Board of Directors,
among others.
The plaintiffs in the two actions purport to sue on behalf of a
class of Candela stockholders, and allege that members of the
board breached fiduciary duties owed to Candela stockholders
through, among other things, the failure to maximize shareholder
value and the use of unfair process in connection with the
proposed merger between Candela and Syneron, and that Candela,
with others, aided and abetted the purported breaches of
fiduciary duties.
The complaints seek, among other relief: rescission of the merger
agreement entered into on Sept. 8, 2009; an injunction against
the merger; an order requiring disclosure of all material
information necessary for shareholders to make an informed vote
on the proposed merger; and an accounting for damages caused by
defendants as well as an award of all costs and disbursements of
the actions, including reasonable attorneys' and expenses.
Candela denies the allegations in the complaints, according to
the company's Oct. 1, 2009, Form 10-K Filing with the U.S.
Securities and Exchange Commission for the fiscal year ended June
27, 2009.
Candela Corp. -- http://www.candelalaser.com/-- manufactures and
distributes innovative clinical solutions that enable
physicians, surgeons, and personal care practitioners to treat
selected cosmetic and medical conditions using lasers, aesthetic
laser systems, and other advanced technologies. Founded near
Boston in 1970, Candela markets and services its products in 86
countries from offices and distributors in the United States,
Europe, Japan, China and other Asian locations. Candela
established the aesthetic laser market 20 years ago, and
currently has an installed base of over 13,500 systems
worldwide.
COASTAL CONDOMINIUMS: Sued in Chinese Drywall Class Action
----------------------------------------------------------
A new class action alleges that Renaissance Commons, a
residential condominium complex in Boynton Beach, was constructed
with defective Chinese Drywall which is emitting toxic gases into
the plaintiffs' homes.
The lawsuit, filed in the Circuit Court for the Fifteenth
Judicial District in and for Palm Beach County, State of Florida,
Civil Division, Case No. 50-2009-CA-032471-MB, claims that the
builder, Coastal Condominiums, should compensate the homeowners
for damage caused by the defective drywall, including corrosion
of pipes, wiring, HVAC coils, fire sprinklers, and the failure of
various electronic products. Also named as defendants are:
-- Precision Drywall, the company which installed the
drywall, and
-- RCR Holdings II, the seller of the condos.
The plaintiffs, owners of six condominium units, seeks to
represent all owners of the several hundred condos at Renaissance
Commons.
During the Florida building boom, hundreds of millions of pounds
of drywall was shipped to ports around the United States from
China. While 25 states have reported issues, problems were first
noted in Florida, likely because the drywall seems to react
strongly in humid conditions.
By June 2008, the state Department of Health had received its
first complaint of sulfur odors from a homeowner. Toxicology
testing that followed showed some drywall imported from China
appeared to be emitting sulfur-based gases that corrode metal,
although no cause had been determined.
Homeowners began to link the drywall with failed air conditioners
and blackened electrical wiring and jewelry.
About 600 Floridians in 30 counties have reported symptoms such
as irritated eyes, bloody noses, rashes and insomnia.
The homeowners are represented by:
Adam C. Linkhorst, Esq.
LINKHORST & HOCKIN, PA
4495 Military Trail, Suite 106
Jupiter, FL 33458
Telephone: (561) 626-8880
Mr. Linkhorst is a Florida Bar Board Certified Construction Law
specialist. Linkhorst & Hockin is part of a national consortium
of law firms with decades of experience representing owners of
defective homes. These firms include Lewis & Roberts (Raleigh,
N.C.); Lea, Rhine & Rosbrugh (Wilmington, N.C.). Luckey &
Mullins (Ocean Springs, Miss.), Pendley, Baudin & Coffin, LLP
(Plaquemine, La.), and Mason LLP (Washington, D.C.).
FINOVA GROUP: Defends TLP Noteholders Claims Pending Arbitration
----------------------------------------------------------------
FINOVA Group, Inc. and FINOVA Capital defend the Thaxton Life
Partners, Inc. note holders' claims asserted against the company
and FINOVA Capital in the pending arbitration.
On Sept. 29, 2006, a group of noteholders of TLP filed suit
against the company and FINOVA Capital. The company and FINOVA
Capital were served with the TLP Action in February 2007. The
TLP Action purports to be a class action filed on behalf of
approximately 150 TLP note holders with claims related to
approximately $20 million in TLP notes. The TLP Action alleges
that, in connection with TLP's sale of its notes, the company,
FINOVA Capital, and several other defendants participated in a
civil conspiracy, violated the South Carolina Unfair Trade
Practices Act, violated the civil RICO statute, and were unjustly
enriched. In its various counts, the TLP Action seeks actual,
treble, and/or punitive damages.
The TLP Action was filed in the South Carolina Court of Common
Pleas of Lancaster County, Sixth Judicial Circuit, and was
removed on Feb. 6, 2007, to the U.S. District Court for the
District of South Carolina.
Upon motion by the Company and FINOVA Capital to the South
Carolina District Court seeking an order compelling such
arbitration, the South Carolina District Court granted the relief
sought and entered an order dismissing the action on May 30,
2007. On June 19, 2007, the TLP plaintiffs appealed such order
to the U.S. Court of Appeals for the Fourth Circuit.
On June 29, 2007, the TLP plaintiffs filed an arbitration demand
with the American Arbitration Association. On Aug. 16, 2007, the
company and FINOVA Capital filed a response to the arbitration
demand denying any liability. On Dec. 20, 2007, the TLP
plaintiffs' appeal was denied by the Fourth Circuit. On Jan. 23,
2008, a petition for rehearing by the TLP plaintiffs was also
denied by the Fourth Circuit.
A hearing on the merits of the TLP Action was originally
scheduled to be heard in September 2008, but was rescheduled for
mid-January 2009 due to one of the members of the arbitration
panel having a scheduling conflict. The mid-January 2009 hearing
was postponed due to the death of one of the three arbitrators
scheduled to hear the matter. The parties have agreed upon a new
third arbitrator.
The American Arbitration Association Panel had proposed hearing
dates in early June 2009, which timing was acceptable to FINOVA.
The plaintiffs objected to the June hearing dates, and on May 5,
2009, the Arbitration Panel agreed to consider an alternative
schedule. Ultimately, the current schedule was agreed to by the
parties and a hearing scheduling order was issued.
On May 12, 2009, the Arbitration Panel issued a hearing
scheduling order in the TLP Action establishing a briefing
schedule, requiring that all written submissions be submitted by
Aug. 5, 2009, and providing for the hearing on the merits to be
held on Aug. 10, 2009, continuing for consecutive days through
Aug. 13, 2009, if necessary.
The evidentiary portion of the hearing concluded on Aug. 11,
2009. The Arbitration Panel requested the parties submit post-
trial briefs by Aug. 21, 2009. The Arbitration Panel has 30 days
from the submission of the post-trial briefs to render a
decision, according to the company's Aug. 14, 2009, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended June 30, 2009.
The Finova Group, Inc. -- http://www.finova.com/-- is a
financial services holding company that provided a range of
financing and capital markets products, primarily to mid-size
businesses through its principal operating subsidiary, FINOVA
Capital Corporation. The Company's business activities have
been limited to maximizing the value of its portfolio through
the orderly collection of assets. The orderly collection of
assets includes collection efforts pursuant to underlying
contractual terms, negotiation of prepayments and sales of
assets or collateral. The Company has substantially completed
the liquidation of its portfolio and its focus has shifted to
the continued wind down of its operations and future dissolution
of its entities.
FIRST DATA: Motion to Dismiss Amended ATM Antitrust Suit Pending
----------------------------------------------------------------
First Data Corp., along with its subsidiary Concord EFS, Inc.,
and various financial institutions continues to pursue the
dismissal of a second amended antitrust class action complaint,
according to the company's Aug. 14, 2009, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
June 30, 2009.
A class-action complaint was filed on July 2, 2004, by
plaintiffs claiming that the defendants violated antitrust laws
by conspiring to artificially inflate foreign ATM fees that were
ultimately charged to ATM cardholders.
Plaintiffs seek a declaratory judgment, injunctive relief,
compensatory damages, attorneys' fees, costs and such other
relief as the nature of the case may require or as may seem just
and proper to the court.
Five similar suits were filed and served in July, August and
October 2004 (referred to collectively as the "ATM Fee Antitrust
Litigation").
On Aug. 3, 2007, Concord EFS, Inc. filed a motion for summary
judgment seeking to dismiss plaintiffs' per se claims, arguing
that there are procompetitive justifications for the ATM
interchange.
On March 24, 2008, the Court entered an order granting the
defendants' motions for partial summary judgment finding that
the claims raised in this case would need to be addressed under
a "Rule of Reason" analysis.
On Feb. 2, 2009, the Plaintiffs filed a Second Amended
Complaint. On April 6, 2009, the defendants filed a Motion to
Dismiss the Second Amended Complaint.
First Data Corp. -- http://www.firstdatacorp.com/-- operates
electronic commerce, payment services and customer account
management businesses. FDC has four main business segments:
First Data Commercial Services Segment, First Data Financial
Institution Services Segment, First Data International Segment
and Integrated Payment Systems Segment, and a fifth segment,
known as All Other and Corporate.
GENTA INC: Defends Remanded Shareholder Complaint in New Jersey
---------------------------------------------------------------
Genta Incorporated defends a remanded class action complaint,
Collins v. Warrell, Docket No. L-3046-08, filed before the
Superior Court of New Jersey.
In September 2008, several shareholders of the company, on behalf
of themselves and all others similarly situated, filed a class
action complaint against the Genta, the Board of Directors, and
certain of its executive officers in Superior Court of New
Jersey.
The complaint alleged that in issuing convertible notes, the
Board of Directors, and certain officers breached their fiduciary
duties, and the company aided and abetted the breach of fiduciary
duty.
On March 20, 2009, the Superior Court of New Jersey granted the
motion of the company to dismiss the class action complaint and
dismissed the complaint with prejudice.
On April 30, 2009, the plaintiffs filed a notice of appeal with
the Appellate Division.
On May 13, 2009, the plaintiffs filed a motion for relief from
judgment based on a claim of new evidence, which was denied on
June 12, 2009.
The plaintiffs also asked the Appellate Division for a temporary
remand to permit the Superior Court judge to resolve the issues
of the new evidence plaintiffs sought to raise.
By order dated June 25, 2009, and filed on July 6, 2009, the
Appellate Division granted the motion for temporary remand, and
directed the issues on remand to be resolved in 30 days.
A hearing on the plaintiffs' motion was held on July 31, 2009, at
which time the Court permitted letter briefing on the issues
raised during that hearing.
The plaintiffs submitted a letter brief on Aug. 3, 2009, and the
company submitted a letter brief on Aug. 5, 2009. No ruling has
yet issued, according to the company's Aug. 14, 2009, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended June 30, 2009.
Genta Incorporated -- http://www.genta.com/-- is a
biopharmaceutical company engaged in pharmaceutical (drug)
research and development. The company focuses on the
identification, development and commercialization of drugs for
the treatment of cancer and related diseases. Genta's research
portfolio consists of two major programs: Deoxyribonucleic Acid
(DNA)/Ribonucleic Acid (RNA) Medicines and Small Molecules.
HORIZON BANK: Awaits Final Approval of Indiana Suit Settlement
--------------------------------------------------------------
Final approval of the settlement in a purported class-action
suit against Horizon Bank, N.A., the bank subsidiary of Horizon
Bancorp, over repossessed vehicles, is pending.
On Aug. 5, 2008, Maria Coto filed a putative class action
complaint in the Porter County Superior Court, Porter County,
Indiana, on behalf of herself and others who have had their
vehicles repossessed by the Bank during the four years prior to
the filing of the action.
The complaint alleges that the Bank's post-repossession notice
to defaulting borrowers does not comply with certain aspects of
Indiana law. The plaintiff seeks statutory damages and costs.
The parties agreed to settle this action in April 2009, and the
court preliminarily approved the settlement on April 24, 2009.
Final court approval is expected on Aug. 17, 2009.
As part of the settlement, Horizon agreed to pay $200,000 to the
lead plaintiff, agreed not to pursue deficiency judgments against
the class members and agreed to pay up to $28 million towards the
attorneys' fees and costs of the class plaintiffs.
No further updates were reported in the company's Aug. 14, 2009,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended June 30, 2009.
Horizon Bancorp -- http://www.accesshorizon.com/-- is a bank
holding company based in Michigan City, Indiana. It provides a
range of banking services in Northwestern Indiana and
Southwestern Michigan through its bank subsidiary, Horizon Bank,
N.A., and other affiliated entities. Horizon operates as a single
segment, which is commercial banking. The Bank is a full-service
commercial bank offering commercial and retail banking services,
corporate and individual trust and agency
services and other services incident to banking. On April 23,
2007, the Bank opened a full service branch in Benton Harbor,
Michigan and on Jan. 28, 2008 the Bank opened its second full
service branch in Valparaiso, Indiana. The Bank maintains 14
other full service facilities in Northwest Indiana and Southwest
Michigan. The Bank also maintains a loan production office in
Lake County Indiana.
INKSTOP INC: Workers Sue for Final Three Weeks' Pay
---------------------------------------------------
Courthouse News Service reports that InkStop, Inc., abruptly
closed up shop and failed to pay its workers for their last three
weeks on the job, the workers claim in a class action in Ohio
Federal Court.
A copy of the Complaint in Warren, et al. v. InkStop, Inc., et
al., Case No. 09-cv-02285 (N.D. Ohio), is available at:
http://www.courthousenews.com/2009/10/06/Inkstop.pdf
The Plaintiffs are represented by:
Jason R. Bristol, Esq.
Thomas A. Downie, Esq.
COHEN ROSENTHAL & KRAMER LLP
The Hoyt Block Building, Suite 400
700 West St. Clair Avenue
Cleveland, OH 44113
Telephone: 216-781-7956
Fax: 216-781-8061
- and -
Anthony J. Lazzaro, Esq.
THE LAZZARO LAW FIRM, LLC
920 Rockefeller Building
614 W. Superior Avenue
Cleveland, OH 44113
Telephone: 216-696-5000
Fax: 216-696-7005
LENDER PROCESSING: Consolidated Price Fixing Suit Ongoing in NJ
---------------------------------------------------------------
A consolidated putative class action lawsuit against one of
Lender Processing Services, Inc.'s subsidiaries, National
Title Insurance of New York, Inc., is ongoing in the U.S.
District Court for the District of New Jersey.
The subsidiary has been named in thirteen putative class action
lawsuits.
The complaints in these lawsuits are substantially similar and
allege that the title insurance underwriters named as
defendants, including National Title Insurance of New York,
Inc., engaged in illegal price fixing as well as market
allocation and division that resulted in higher title insurance
prices for consumers.
The complaints seek treble damages in an amount to be proved at
trial and an injunction against the defendants from engaging in
any anti-competitive practices under the Sherman Antitrust Act
and various state statutes.
A motion was filed before the Multidistrict Litigation Panel to
consolidate and/or coordinate these actions in the U.S. District
Court in the Southern District of New York. However, that
motion was denied.
The cases have been consolidated before one district court judge
in each of California and New Jersey and scheduled for the
filing of consolidated complaints and motion practice. Motions
to dismiss were filed in each consolidated action.
The California action was dismissed with leave to amend and a
Second Amended Complaint was filed in the California action on
July 6, 2009.
A decision on the Motions to dismiss the New Jersey action is
pending, according to the company's Aug. 14, 2009, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended June 30, 2009.
Lender Processing Services, Inc. -- http://www.lpsvcs.com/-- is
a provider of integrated technology and outsourced services to
the mortgage lending industry, with capabilities in mortgage
processing and default management services in the U.S. The
company's technology solutions include its mortgage processing
system. Its outsourced services include default management
services, which are used by mortgage lenders and servicers, and
its loan facilitation services, which support most aspects of
the closing of mortgage loan transactions to national lenders
and loan servicers. LPS conducts its operations through two
segments: technology, data and analytics, and loan transaction
services.
LIBERTY MEDIA: Settlement of Stockholder Suits Pending in Del.
--------------------------------------------------------------
An agreement settling the multiple purported class action
complaint against Liberty Media Corp., The DirectTV Group, Inc.,
and DIRECTV's board of directors is pending approval.
Following the public announcement of the execution of the merger
agreement with DIRECTV, multiple purported class action
complaints were filed against DIRECTV, Liberty and the DIRECTV
board of directors.
Four stockholder class action complaints were brought in
Delaware Chancery Court from May 12, 2009 to May 19, 2009, all
of which were subsequently consolidated on May 22, 2009.
One stockholder class action complaint was brought in California
State Court on May 29, 2009.
The Delaware and California actions are purported class actions
on behalf of the public stockholders of DIRECTV.
The consolidated Delaware complaint and the California complaint
allege, among other things, that the members of the DIRECTV
board of directors breached their fiduciary duties in approving
the merger agreement.
DIRECTV and Liberty Media have reached an agreement in principle
relating to a potential settlement with the plaintiffs in the
complaints in the Delaware Court of Chancery.
The settlement is subject to the execution of a stipulation of
settlement and the approval of the Delaware Chancery Court,
according to the company's Form 8-K filing with the U.S.
Securities and Exchange Commission dated Oct. 1, 2009.
Liberty Media Corporation -- http://www.libertymedia.com/-- is
a holding company, which, through its subsidiaries is engaged in
the video and on-line commerce, media, communications and
entertainment industries. The Company operates in North
America, South America, Europe and Asia. Its principal
businesses and assets include QVC, Inc. and Starz, LLC and
interests in The DIRECTV Group, Inc. and Expedia, Inc. It
acquired RedEnvelope and Celebrate Express. Its subsidiaries
include HSN, Inc., Interval Leisure Group, Inc., Ticketmaster
Entertainment, Inc. and Tree.com, Inc., QVC, Inc., Expedia,
Inc., Starz Entertainment, LLC, The DIRECTV Group, Inc., Starz
Media, LLC, Time Warner Inc., Backcountry.com, Inc.,
Bodybuilding.com,LLC, PicksPal, Inc., Game Show Network, LLC,
Leisure Arts, Inc., and WFRV and WJMN Television Station, Inc.
MDL 1379: High Court Hears Argument in Reed Elsevier v. Muchnick
----------------------------------------------------------------
Tony Mauro at The National Law Journal reports that Deborah Jones
Merritt, law professor at Ohio State University's Moritz College
of Law, readily confessed recently that she felt like "the Erin
Brockovich of the Supreme Court," rising to argue for the
respondent in Reed Elsevier v. Muchnick, No. 08-103 (U.S.), this
week because there were "so many lawyers on the other side."
Prof. Merritt, a former law clerk to Justice Sandra Day O'Connor
and then-circuit court Judge Ruth Bader Ginsburg, was appointed
by the High Court in April to argue in the case. "I got a call
out of the blue, and of course I said yes," said Prof. Merritt,
agreeing to argue her first appeal to the nation's highest court.
She acknowledged copyright law is not her specialty; she just
published a text on evidence. Prof. Merritt's co-counsel is her
husband, Andrew Lloyd Merritt, who once was a law professor but
now is a full-time musician,
So why did the Court appoint counsel in the case, which involves
federal court jurisdiction over copyright infringement claims?
It's the latest round in a long-running class action dispute over
copyright infringement claims by freelancers against database
publishers who profit from their stories and photos. At issue in
this round is whether federal courts even have jurisdiction over
claims by freelancers who never registered their works for
copyright in the first place. The district court said yes,
certified the class and approved a settlement that had been
worked out. But the Second Circuit reversed, finding that
jurisdiction does not extend to unregistered claims.
When the publishers appealed to the high court, the claimants
joined in asking the high court to review the case. Both sides
argue that the circuit court got it wrong, leaving nobody to
defend the position that there is a jurisdictional bar against
unregistered claims. "All the parties want to get a court-
enforced settlement at some point," said Merritt.
In such cases, rather than dismissing the case, the Court often
appoints counsel to advance the orphaned argument. It usually
happens once or twice a term, as we discussed in this story last
year. "A lot can be said" in favor of the 2nd Circuit decision,
she stated.
In preparing for her argument, Merritt said one of the toughest
adjustments she'll have to make is standing behind the podium for
a full half-hour. "That's not my style," said the professor. "I
won't get to walk around the classroom and gesticulate."
Her adversaries will be veteran Charles Sims of Proskauer Rose in
New York, representing the publishers, and Ginger Anders,
assistant to the solicitor general, representing the United
States. Like Merritt, Anders can boast she clerked for two of the
Court's female justices: Sonia Sotomayor when she was on the 2nd
Circuit, and Ginsburg on the Supreme Court.
Reed Elsevier v. Muchnick, No. 08-103 (U.S.), reviews the Second
Circuit decision published at 509 F.3d 116. The Petitioners put
two questions before the High Court:
1. Whether the usual power of lower courts to approve a
comprehensive settlement releasing claims that would be
outside the courts' subject matter jurisdiction to
adjudicate, confirmed in Matsushita Elec. Indus. Co. v.
Epstein, 516 U.S. 367 (1996), was eliminated in copyright
infringement actions by 17 U.S.C. Sec. 411(a).
2. Whether the Second Circuit erred by ignoring the
assurance in New York Times Co. v. Tasini, 533 U.S. 483,
505 (2001), that the problem of compromised electronic
news archives could be remedied by "[t]he Parties
(Authors and Publishers [entering] into an agreement
allowing continued electronic reproduction of the
Authors' works . . . and remunerating authors for their
distribution."
Eight of the nine justices (Justice Sotomayor having recused
herself) will answer whether 17 U.S.C. Sec. 411(a) restricts the
subject matter jurisdiction of the federal courts over copyright
infringement actions.
The proceeding before the United States Court of Appeals for the
Second Circuit is In re Literary Works In Electronic Databases
Copyright Litigation, Docket Nos. 05-5943 and 06-0223 (2d Cir.
2007).
The trial court proceeding is In re Literary Works In Electronic
Databases Copyright Litigation, MDL No. 1379 (S.D.N.Y.) (Daniels,
J.).
Years ago, Judge Daniels certified a class, an $18 million
settlement agreement was signed, notices were distributed to
potential plaintiffs by The Garden City Group, Inc., and GCG
established a Web site for information about the case at
http://www.copyrightclassaction.com/
Co-Lead Counsel to the Class are:
Michael J. Boni, Esq.
KOHN, SWIFT & GRAF, P.C.
One South Broad Street, Suite 2100
Philadelphia, PA 19107-3389
E-mail: mboni@kohnswift.com
- and -
Diane S. Rice, Esq.
HOSIE, FROST, LARGE & MCARTHUR
Spear Street Tower, 22nd Floor
One Market Street
San Francisco, CA 94105
E-mail: drice@hosielaw.com
- and -
A. J. De Bartolomeo, Esq.
GIRARD GIBBS & DE BARTOLOMEO LLP
601 California St., Suite 1400
San Francisco, CA 94108
E-mail: ajd@girardgibbs.com
MEDEFILE INT'L: Class Certification in TCPA Breach Suit Pending
---------------------------------------------------------------
A class has yet to be certified by the District Court of Arizona
in the Consumer Protection Corp.'s suit against Medefile
International, Inc., according to the company's Aug. 14, 2009,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended June 30, 2009.
On Sept. 8, 2008, the company was notified via a process server
of a proposed class action suit brought by CPC in Superior Court
in the State of Arizona.
CPC alleges that the company sent an unsolicited facsimile
advertisement in violation of the Telephone Consumer Protection
Act of 1991 (TCPA).
On Oct. 8, 2008, the matter was moved to the District Court of
Arizona.
On Oct. 28, 2008, the company filed a motion to dismiss the
action based on the plaintiff's failure to properly allege a
cause of action.
CPC filed a response to the company's motion to dismiss on Nov.
4, 2008.
CPC is seeking damages of $500 per member of the class. (Class
Action Reporter, May 4, 2009)
Medefile International, Inc. -- http://www.medefile.com/--
through its subsidiary, Medefile, Inc., has developed a system
for gathering, digitizing, storing and distributing information
for the healthcare field. The company has created a system for
gathering and digitizing medical records so that individuals can
have a record of all of their medical visits. Medefile's
primary product is the MedeFile system, a secure system for
gathering and maintaining medical records. The MedeFile system
is designed to gather all of its members' medical records and
create a single, comprehensive medical record that is accessible
round the clock.
NPC INTERNATIONAL: Defends Suit Over FLSA Violations in Kansas
--------------------------------------------------------------
NPC International, Inc., defends a purported class-action lawsuit
alleging violations of the Fair Labor Standards Act, according to
the company's Aug. 14, 2009, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2009.
On May 12, 2009, a lawsuit against the company, entitled Jeffrey
Wass, et al. v. NPC International, Inc., Case No. 2:09-CV-2254-
JWL-KGS, was filed in the U.S. District Court for the District of
Kansas.
An Amended Complaint, entitled Jeffrey Wass and Mark Smith, et
al. v. NPC International, Inc., was filed on July 2, 2009.
Plaintiffs have brought the action individually and on behalf of
similarly situated employees who work or previously worked as
delivery drivers for NPC.
The Amended Complaint states that the lawsuit is brought as a
collective action under the Fair Labor Standards Act to recover
unpaid wages and excessive deductions owed to plaintiffs and
similarly situated workers employed by NPC in 28 states, and as a
class action under Colorado law on behalf of one of the
plaintiffs and all other similarly situated workers employed by
NPC in Colorado to recover unpaid minimum wages and excess
payroll deductions and certain costs relating to uniforms and
special apparel.
The Amended Complaint alleges among other things that NPC
deprived plaintiffs and other NPC delivery drivers of minimum
wages by providing insufficient reimbursements for automobile and
other job-related expenses incurred for the purposes of
delivering NPC's pizza and other food items.
With respect to the claim under the FLSA, the Amended Complaint
seeks compensatory damages, liquidated damages, attorneys' fees
and costs, and pre-judgment and post-judgment interest.
With respect to the claim under Colorado law, the Amended
Complaint seeks compensatory damages, costs of litigation, and
pre-judgment and post-judgment interest.
For more details, contact:
George A. Hanson, Esq.
STUEVE SIEGEL HANSON LLP
460 Nichols Road Suite 200
Kansas City, MO 64112
Phone: 816-714-7100X115
Fax: 816-714-7101
- and -
Mark A. Potashnick, Esq.
WEINHAUS & POTASHNICK
11500 Olive Blvd., Suite 133
St. Louis, MO 63141
Phone: 314-997-9150
Fax: 314-997-9170
OZ MINERALS: Discloses Class Action in Federal Court of Australia
-----------------------------------------------------------------
Sarah McDonald at Bloomberg News reports that OZ Minerals Ltd.,
an Australian copper and gold producer, said a class action had
been lodged against it in the Federal Court of Australia.
The Melbourne-based mining company "will vigorously defend the
claim," it said in a statement to the Australian stock exchange,
without giving further details.
IMF Australia Ltd., a litigation funder, said in a separate
statement that the action relates to OZ Minerals' disclosure
obligations between Aug. 21 and Nov. 30 last year. Lyndal
McFarland at Dow Jones Newswires adds that IMF said in December
2008 that it was approached by OZ Minerals shareholders and
planned to raise funds for a class action over allegations the
miner failed to disclose the details of its debt.
OZ Minerals, formed in 2008 through the merger of Oxiana Ltd. and
Zinifex Ltd., was forced to sell most of its assets to China
Minmetals Group to repay debt after metals prices plummeted.
Ms. McDonald's calls to OZ Minerals spokeswoman Natalie Worley
weren't immediately returned.
OZ Minerals shares fell 70 percent between August 21, 2008, and
the end of November that year.
PALL CORP: Consolidated Securities Fraud Suit Ongoing in EDNY
-------------------------------------------------------------
The consolidated securities fraud class action filed against Pall
Corp. is ongoing in the U.S. District Court for the Eastern
District of New York.
Initially, four putative class actions were filed against the
Company and certain members of its management team alleging
violations of the federal securities laws relating to the
Company's understatement of certain of its U.S. income tax
payments and of its provision for income taxes in certain prior
periods.
These lawsuits were filed between Aug. 14, 2007, and Oct. 11,
2007, with the U.S. District Court for the Eastern District of
New York.
The plaintiffs principally alleged that the defendants violated
the federal securities laws by issuing materially false and
misleading public statements about the company's financial
results, financial statements, income tax liability, effective
tax rate and internal controls. They seek unspecified
compensatory damages, costs and expenses.
On Oct. 15, 2007, various plaintiffs and groups of plaintiffs
filed motions seeking to consolidate the cases and to be
appointed lead plaintiff.
By Order dated May 28, 2008, the Court consolidated the cases
under the caption "In re Pall Corp. Securities Litigation, Case
No. 07-CV-3359 (E.D.N.Y.) (JS) (ARL)," appointed a lead
plaintiff and ordered that the lead plaintiff file a
consolidated amended complaint.
The lead plaintiff filed its consolidated amended complaint on
Aug. 4, 2008. The lead plaintiff seeks to act as representative
for a class consisting of purchasers of the company's stock
between April 20, 2007, and Aug. 2, 2007, inclusive.
The consolidated amended complaint names the company, Eric
Krasnoff and Lisa McDermott as defendants and alleges violations
of Section 10(b) and 20(a) of the U.S. Exchange Act, as amended,
and Rule 10b-5 promulgated by the U.S. Securities and Exchange
Commission.
It alleges that the defendants violated these provisions of the
federal securities laws by issuing materially false and
misleading public statements about the company's financial
results and financial statements, including the company's income
tax liability, effective tax rate, internal controls and
accounting practices. The plaintiffs seek unspecified
compensatory damages, costs and expenses.
The company moved to dismiss the consolidated amended complaint
on Sept. 19, 2008.
The company filed its reply brief to the lead plaintiff's
opposition to its motion to dismiss on Dec. 2, 2008.
By Memorandum and Order dated September 21, 2009, the Court
denied the company's motion to dismiss the consolidated amended
complaint and granted the lead plaintiff leave to amend the
consolidated amended complaint by filing a second amended
complaint, according to the company's Sept. 29, 2009, Form 10-K
Filing with the U.S. Securities and Exchange Commission for the
fiscal year ended July 31, 2009.
The first identified complaint is Robert Baughman, et al. v.
Pall Corporation, et al. (EDNY)
Representing the plaintiffs are:
Mario Alba, Jr., Esq.
Coughlin Stoia Geller Rudman & Robbins LLP
58 South Service Road
Suite 200
Melville, NY 11747
Phone: 631-367-7100
Fax: (631) 367-1173
E-mail: malba@csgrr.com
Representing the defendants are:
Lewis J. Liman, Esq.
Cleary, Gottlieb, Steen & Hamilton LLP
One Liberty Plaza
New York, NY 10006
Phone: 212-225-2000
Fax: 212-255-3949
E-mail: maofiling@cgsh.com
PRO-TECH INDUSTRIES: Wage and Hour Lawsuit Settled in June 2009
---------------------------------------------------------------
A wage and hour class action lawsuit against Pro-Tech Industries,
Inc. was settled with all parties in June 2009.
In March 2008, the lawsuit was filed against the company by three
former employees and Sprinkler Fitters Union Local 669.
No further details on the lawsuit were disclosed in the company's
Aug. 14, 2009, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2009.
Pro-Tech Industries, Inc. -- http://www.pro-techfire.com/--
formerly Meltdown Massage and Body Works, Inc., operates through
its wholly owned subsidiary, Pro-Tech Fire Protection Systems
Corp. Pro-Tech is a full-service contractor serving the western
United States, with offices in California and Nevada. Services
include estimating, designing, fabricating and installing all
types of standard and specialty water-based fire protection
systems. In addition, Pro-Tech offers Day Work services,
including inspecting, testing, repairing and servicing of water-
based fire protection systems. The company serves the new
construction market, as well as customers retro-fitting,
upgrading or repairing their existing facilities.
PROSPER MARKETPLACE: Lawsuit Over Securities Violations Pending
---------------------------------------------------------------
A securities class action lawsuit against Prosper Marketplace,
Inc., is in its preliminary stages, according to the company's
Aug. 14, 2009, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2009.
On Nov. 26, 2008, a class action lawsuit was filed against the
company, certain of its executive officers and its directors in
the Superior Court of California, County of San Francisco,
California.
The suit was brought on behalf of all loan note purchasers in the
company's online lending platform from Jan. 1, 2006 through Oct.
14, 2008.
The lawsuit alleges that Prosper offered and sold unqualified and
unregistered securities in violation of the California and
federal securities laws.
The lawsuit seeks class certification, damages, the right of
rescission and the award of attorneys' fees and costs against
Prosper and the other named defendants.
Some of the individual defendants have filed a demurrer to the
First Amended Complaint, and on June 11, 2009 the court sustained
the demurrer with leave to amend.
Prosper's insurance carrier has denied coverage.
On July 10, 2009 the plaintiffs filed a Second Amended Complaint
alleging violations of the California and federal securities laws
arising from the operation of Prosper's business through October
2008.
The complaint seeks a declaration that the action may be
maintained as a class action, and seeks damages in an unspecified
amount and rescission against Prosper and the other named
defendants, as well as treble damages against Prosper and the
award of attorneys' fees, experts' fees and costs, and pre-
judgment and post-judgment interest. A response to the complaint
was due Aug. 10, 2009.
Prosper Marketplace, Inc. is an online marketplace for person-to-
person lending. Prosper's website provides an online marketplace
for loans where people list and bid on loans with interest rates
of return determined through Prosper's online auction platform.
THOR INDUSTRIES: Suits on Formaldehyde in Housing Units Pending
---------------------------------------------------------------
Thor Industries, Inc., remains named in several complaints,
some of which are putative class actions, filed against
manufacturers of travel trailers and manufactured homes supplied
to the Federal Emergency Management Agency to be used for
emergency living accommodations in the wake of Hurricane
Katrina.
The company has been named in approximately 300 complaints, some
of which were originally styled as putative class actions (with
respect to which class certification was ultimately denied) and
some of which were filed by individual plaintiffs, filed against
manufacturers of travel trailers and manufactured homes supplied
to the Federal Emergency Management Agency for use as emergency
living accommodations in the wake of Hurricanes Katrina and Rita.
The complaints have been transferred to the Eastern District of
Louisiana by the federal panel on multidistrict litigation for
consideration in a matter captioned in re FEMA Trailer
Formaidehyde Products Liability Litigation, Case Number MDL 07-
1873, U.S. District Court for the Eastern District of Louisiana.
The complaints generally assert claims for damages (for health
related problems, medical expenses, emotional distress and lost
earnings) and for medical monitoring costs due to the presence of
formaidehyde in the units.
Some of the lawsuits also seek punitive and/or exemplary damages,
according to the company's Sept. 29, 2009, Form 10-K Filing with
the U.S. Securities and Exchange Commission for the fiscal year
ended July 31, 2009.
Thor Industries, Inc. -- http://www.thorindustries.com/--
produces and sells a range of recreation vehicles, and small and
mid-size buses in the U.S. and Canada. The company's principal
recreation vehicle operating subsidiaries are Airstream, Inc.,
CrossRoads RV, Dutchmen Manufacturing, Inc., Four Winds
International, Inc., Keystone RV Company, Komfort Corp., Citair,
Inc., and Damon Corp. Its principal bus operating subsidiaries
are Champion Bus, Inc., General Coach America, Inc., ElDorado
National California, Inc., ElDorado National Kansas, Inc., and
Goshen Coach, Inc. The company operates through three segments:
towable recreation vehicles, motorized recreation vehicles and
buses.
VIXEN CREATIONS: Workers Complain About Lack of Overtime Pay
------------------------------------------------------------
Courthouse News Service reports that a group of workers who made
silicone sex toys for Vixen Creations weren't paid overtime, they
claim in a class action in San Francisco Superior Court.
A copy of the Complaint in Amrich, et al. v. Vixen Creations, et
al., Case No. 09-493184 (Calif. Super. Ct., San Francisco Cty.),
is available at:
http://www.courthousenews.com/2009/10/06/Sex%20Worker%20THIS%20ONE.pdf
The Plaintiffs are represented by:
Brad Yamauchi, Esq.
Lisa Charbonneau, Esq.
MINAMI TAMAKI, LLP
360 Post Street, 8th Floor
San Francisco, CA 94108
Telephone: 415-788-9000
WALT DISNEY: Court Tosses Suit Advocating Segway Park Transport
---------------------------------------------------------------
The Honorable Gregory Presnell dismissed Ault, et al. v. Walt
Disney World Co., 07-01785 (M.D. Fla.), a lawsuit asserting that
the theme park operator's prohibition on people using their
Segway Personal Transporters at its theme parks violates federal
disability law. Judge Presnell said the Plaintiffs failed to
show that their stand-up transport devices are necessary since
the parks permit wheelchairs and other scooters.
The Plaintiffs are represented by:
John A. Baker, Esq.
J. Phillip Krajewski, Esq.
BAKER, BAKER & KRAJEWSKI, LLC
415 South Seventh Street
Springfield, IL 62701
Telephone: 217-522-3445
- and -
Aaron C. Bates, Esq.
BATES MOKWA, PLLC
126 E. Jefferson St.
Orlando, FL 32801
Telephone: 407-893-3776
- and -
Bernard H. Dempsey, Jr.
DEMPSEY & ASSOCIATES, PA
1560 Orange Ave., Suite 200
Winter Park, FL 32789-5544
Telephone: 407-422-5166
- and -
David Ferleger, Esq.
10 Presidential Blvd., Suite 115
Bala Cynwyd, PA 19006
Telephone: 610-668-2221
- and -
David G. Geffen, Esq.
DAVID GEFFEN LAW FIRM
530 Wilshire Boulevard, Suite 205
Santa Monica, CA 90401
Telephone: 310-434-1111
- and -
Nancy A. Johnson, Esq.
MCGUIRE WOODS, LLP
50 N. Laura St., Suite 3300
Jacksonville, FL 32202
Telephone: 904-798-3223
- and -
Jason M. Medley, Esq.
O'DONNELL, FEREBEE, MEDLEY & KEISER, PC
450 Gears Rd., Suite 800
Houston, TX 77067
Telephone: 281-875-8200
- and -
Christopher T. White, Esq.
Advocacy Center for Persons with Disabilities, Inc.
1000 N. Ashley Dr., Suite 640
Tampa, FL 33602
Telephone: 813-233-2920
Walt Disney is represented by:
Kerry Alan Scanlon, Esq.
Jeremy M. White, Esq.
KAYE SCHOLER, LLP
901 15th St. NW, Suite 1100
Washington, DC 20005
Telephone: 202-682-3500
- and -
Manuel Kushner, Esq.
KAYE SCHOLER, LLP
777 S. Flagler Dr., Suite 900 W
West Palm Beach, FL 33401
Telephone: 561-802-3230
WHOLE FOODS: "Kottaras" Antitrust Complaint in Early Stages
-----------------------------------------------------------
Kottaras v. Whole Foods Market, Inc., Case No. 08-cv-01832
(D.C.), is in the preliminary stages, according to the company's
Aug. 14, 2009, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2009.
On Oct. 27, 2008, the complaint was served on the company.
The putative class-action lawsuit seeks treble damages,
equitable, injunctive, and declaratory relief.
The action alleges that the acquisition and merger between Whole
Foods Market and Wild Oats violates various provisions of the
federal antitrust laws.
The Plaintiff is represented by:
Michael D. Braun, Esq.
BRAUN LAW GROUP, P.C.
10680 West Pico Boulevard, Suite 280
Los Angeles, CA 90064
Telephone: (310) 836-6000
Fax: (310) 836-6010 (fax)
E-mail: service@braunlawgroup.com
- and -
Roy A. Katriel, Esq.
THE KATRIEL LAW FIRM
1101 30th Street, NW Suite 500
Washington, DC 20007
Telephone: (202) 625-4342
Fax: (202) 330-5593
E-mail: rak@katriellaw.com
Whole Foods is represented by:
Jeffrey W. Brennan, Esq.
Paul T. Denis, Esq.
DECHERT, LLP
1775 I Street, NW
Washington, DC 20006-2401
Telephone: (202) 261-3326
E-mail: jeffrey.brennan@dechert.com
- and -
Carolyn E. Budzinski, Esq.
Christine C. Levin, Esq.
DECHERT, LLP
Cira Centre
2929 Arch Street
Philadelphia, PA 19104
Telephone: (215) 994-2622
Fax: (215) 655-2622 (fax)
E-mail: carolyn.budzinski@dechert.com
Amicus Kroger Co. is represented by;
Justin Sanjeeve Antonipillai, Esq.
ARNOLD & PORTER LLP
555 12th Street, NW
Washington, DC 20004
Telephone: (202) 942-5066
Fax: (202) 942-5999
E-mail: justin_antonipillai@aporter.com
Amicus New Seasons Marker is represented by:
Amber L. Husbands, Esq.
DAVIS WRIGHT TREMAINE, LLP
1919 Pennsylvania Avenue, NW, Suite 200
Washington, DC 20006-3485
Telephone: (202) 973-4219
Fax: (202) 973-4299
E-mail: amberhusbands@dwt.com
Amicus Safeway, Inc., is represented by:
Alexander Maltas, Esq.
LATHAM & WATKINS LLP
555 Eleventh Street, NW, Suite 1000
Washington, DC 20004
Telephone: (202) 637-2295
Fax: (202) 637-2201
E-mail: alexander.maltas@lw.com
Amicus Trader Joe's Company is represented by:
Richard G. Parker, Esq.
O'MELVENY & MYERS LLP
1625 Eye Street, NW
Washington, DC 20006
Telephone: (202) 383-5380
Fax: (202) 383-5414
E-mail: rparker@omm.com
Amicus Ahold U.S.A., Inc., is represented by:
George Lovell Paul, Esq.
WHITE & CASE, L.L.P.
Antitrust Division
701 13th Street, NW
Washington, DC 20005-3807
Telephone: (202) 626-3656
Fax: (202) 639-9355
E-mail: gpaul@whitecase.com
Amicus Apollo Management Holding LP is represented by:
Jonathan M. Rich, Esq.
MORGAN, LEWIS & BOCKIUS LLP
1111 Pennsylvania Avenue, NW
Washington, DC 20004-2541
Telephone: (202) 739-5433
Fax: (202) 739-3001
E-mail: jrich@morganlewis.com
Amicus Gelson's Markets is represented by:
Michael Bertrand Roberts, Esq.
REED SMITH LLP
1301 K Street, NW, Suite 1100 - East Tower
Washington, DC 20005
Telephone: (202) 414-9200
E-mail: mroberts@reedsmith.com
Amicus Fresh Market, Inc., is represented by
Ralph A. Taylor, Esq.
ARENT FOX, LLP
1050 Connecticut Avenue, NW
Washington, DC 20036
Telephone: (202) 775-5713
Fax: (202) 857-6395
E-mail: taylor.ralph@arentfox.com
Amicii Big Y Foods, Inc., Publix Super Markets, Inc., SuperValu,
Inc., and Wegman's Food Markets, Inc., are represented by:
Christopher James MacAvoy, Esq.
HOWREY, LLP
1299 Pennsylvania Avenue, NW
Washington, DC 20004
Telephone: (202) 383-6546
Fax: 202-383-6610
E-mail: macavoyc@howrey.com
Intervenor Target Corp. is represented by:
Jessamyn S. Berniker, Esq.
WILLIAMS & CONNOLLY, LLP
725 12th Street, NW
Washington, DC 20005
Telephone: (202) 434-5474
E-mail: jberniker@wc.com
ZYNEX INC: Defends Suits on Restatement of Unaudited Statements
---------------------------------------------------------------
Zynex, Inc., is defending three purported class action suits
filed in relation to the company's restatement of unaudited
financial statements, according to its Aug. 14, 2009, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended June 30, 2009.
A lawsuit was filed against the company, its President and Chief
Executive Officer and its Chief Financial Officer on April 6,
2009, in the U.S. District Court for the District of Colorado
(Marjorie and David Mishkin v. Zynex, Inc. et al.).
On April 9, 2009, a lawsuit was filed by Robert Hanratty in the
same court against the same defendants.
On April 10, 2009, a lawsuit was filed by Denise Manandik in the
same court against the same defendants.
These lawsuits allege substantially the same matters.
The lawsuits refer to the April 1, 2009 announcement of the
company that it will restate its unaudited financial statements
for the first three quarters of 2008.
The lawsuits purport to be a class action on behalf of
purchasers of the company securities between May 21, 2008 and
March 31, 2009.
The lawsuits allege, among other things, that the defendants
violated Section 10 and Rule 10b-5 of the Securities Exchange
Act of 1934 by making intentionally or recklessly untrue
statements of material fact and/or failing to disclose material
facts regarding the financial results and operating conditions
for the first three quarters of 2008.
The plaintiffs ask for a determination of class action status,
unspecified damages and costs of the legal action.
The company has notified its directors and officers liability
insurer of the claims.
Founded in 1996, Zynex, Inc. -- http://www.zynexmed.com/--
engineers, manufactures, markets, and sells its own design of
electrotherapy medical devices in two distinct markets: standard
digital electrotherapy products for pain relief and pain
management; and the NeuroMove(TM) for stroke and spinal cord
injury rehabilitation. Zynex's product lines are fully
developed, FDA-cleared, commercially sold, and have been
developed to uphold the Company's mission of improving the
quality of life for patients suffering from impaired mobility
due to stroke, spinal cord injury, or debilitating and chronic
pain.
Asbestos Litigation
ASBESTOS ALERT: Black Butte Ranch to Pay $750 for Cleanup Breach
----------------------------------------------------------------
The Oregon Department of Environmental Quality issued a US$750
penalty to Black Butte Ranch Corporation for violations on an
asbestos abatement project, which Black Butte workers performed
on the east side of Partridgefoot Road in Black Butte Ranch,
Ore., according to a DEQ press release dated Oct. 2, 2009.
DEQ assessed the penalty because Black Butte Ranch and its
employees are not licensed by DEQ to perform asbestos abatement
projects. However, Black Butte employees removed 26 linear feet
of asbestos-containing sewer pipe.
The excavated pipe was broken into several smaller pieces, loaded
into a dump truck and then unloaded onto a tarp. Workers then
used a backhoe to break the pipe pieces into even smaller pieces.
Breaking the pipe caused the pipe to be rendered friable and
capable of being crumbled, pulverized or reduced to powder when
dry increasing the likelihood asbestos fibers could become
airborne.
The broken pipe pieces remained unpackaged and unlabeled on the
ground at the Black Butte Ranch for about four weeks.
Black Butte Ranch Corporation has until Oct. 12, 2009 to appeal
the penalty.
ASBESTOS ALERT: Precision Demolition to Pay $36T for CAA Breach
---------------------------------------------------------------
Precision Demolition and Abatement, LLC, agreed to pay a
US$36,000 penalty to settle with the U.S. Environmental
Protection Agency for alleged violations of the asbestos National
Emission Standard for Hazardous Air Pollutants (asbestos NESHAP),
under the Clean Air Act, according to an EPA press release dated
Oct. 1, 2009.
Precision is an asbestos abatement and demolition contractor
based in Boise, Idaho.
In October 2008, EPA conducted an asbestos compliance inspection
of a renovation site located at 4806 Emerald Street in Boise,
Idaho. The result of the inspections found several violations of
the asbestos NESHAP.
The violations included failure to:
-- Inform EPA of the dates when renovation work would take
place at the building site;
-- Keep asbestos adequately wet;
-- Carefully lower asbestos to the floor;
-- Prevent visible emissions to the outside air;
-- Mark the waste disposal vehicle with specific warning
signs during loading of asbestos waste; and
-- Post proof of training for an on-site supervisor.
According to Edward Kowalski, Director of the Office of
Compliance and Enforcement in Seattle, the intent of the
regulations is to protect the public and prevent the release of
asbestos fibers during renovations and demolitions.
Mr. Kowalski said, "We hope that building owners, developers and
contractors learn from this situation. When you are tearing down
or renovating a structure that has asbestos, it is important to
notify the proper authorities and follow the asbestos
regulations."
Federal regulations require a thorough inspection of a facility
for the presence of asbestos prior to any demolition or
renovation activity, as well as advance notice to EPA or the
state or local agency that administers the asbestos NESHAP
program.
If a threshold amount of asbestos is found, contractors are
required to remove and dispose of the material according to
certain requirements such as using water to wet the asbestos
during removal, carefully handling, bagging and labeling of
wastes, and properly disposing of them at permitted landfills.
ASBESTOS ALERT: OSHA Charges Superior General for Safety Breach
---------------------------------------------------------------
The U.S. Department of Labor's Occupational Safety and Health
Administration has cited Superior General Contracting of
Cheektowaga, N.Y., for 10 alleged serious violations (including
asbestos-related) of workplace health standards at an Amherst,
N.Y., jobsite, according to an OSHA press release dated Oct. 5,
2009.
Superior General faces a total of US$50,000 in fines for not
providing all required safeguards for its employees who were
exposed to asbestos-containing pipe insulation during a
residential remodeling job.
Arthur Dube, OSHA's are director in Buffalo, N.Y., said, "This
employer should have taken steps to identify and measure the
level of asbestos, provide workers with proper respirators and
protective clothing, and properly clean up and dispose of
asbestos-containing and potentially asbestos-containing debris.
"Inhalation of asbestos fibers may lead to serious lung disease
and other disorders, which makes it essential that effective
protective measures be in place and in use whenever workers are
exposed to asbestos on the job."
Specifically, OSHA found that Superior General Contracting did
not:
-- Monitor to determine asbestos exposure levels,
-- Use wet methods to clean up debris,
-- Provide HEPA vacuum cleaners to collect debris and dust,
-- Ensure the prompt cleanup and disposal of debris in leak-
tight containers,
-- Ensure appropriate respirator use,
-- Require the use of protective clothing,
-- Perform all work in a regulated area,
-- Provide employees with appropriate training, and
-- Assure that the work was overseen by a competent person with
the knowledge and authority to identify and abate hazards.
Robert Kulick, OSHA's regional administrator in New York, said,
"One means of preventing hazards such as these is to implement an
effective safety and health management system so that employers
and employees are working together to proactively assess,
identify and eliminate hazardous conditions."
Superior General Contracting has 15 business days from receipt of
its citations and proposed penalties to comply, participate in an
informal conference with the OSHA area director or contest the
findings before the independent Occupational Safety and Health
Review Commission.
OSHA issues serious citations when death or serious physical harm
is likely to result from hazards about which the employer knew or
should have known.
ASBESTOS UPDATE: Dartford Court Rules on Two Pensioners' Deaths
----------------------------------------------------------------
An inquest at the Dartford Coroner's Court heard that the deaths
of George Mungeam and Tom Martin were linked to workplace
exposure to asbestos, according to the Gravesend Reporter.
The inquest heard how Mr. Mungeam, from Gravesend, Kent, England,
was exposed to asbestos while working as an electrician at
Northfleet Power Station. A post-mortem revealed that his death
was caused in part by a malignant mesothelioma compatible with
his exposure to asbestos.
On Sept. 24, 2009, Coroner Roger Hatch read evidence from an
extract of the statement provided by Mr. Mungeam's wife, Joyce
Mungeam, saying, "He was employed in Northfleet Power Station as
an electrician and he would have come into contact with asbestos
while working here.
"He often had to wrap asbestos slabs around piping in order to
insulate it. He would saw that there was so much dust in the room
that it looked like a fog."
The 78-year-old Mr. Mungeam died on Aug. 26, 2009 after a short
stay in the Ellenor Lions Hospice.
Mr. Tom Martin, a retired carpenter from Hartley, Kent, England,
was exposed to asbestos when working on council buildings. He
died in Darenth Valley Hospital on April 15, 2009, two weeks
after being admitted with breathing difficulties. A post-mortem
revealed he died from chronic obstructive pulmonary disease which
was caused by his exposure to asbestos.
Mr. Martin also worked at Vickers munitions factory, where
asbestos exposure causing death has already been proven, during
the World War II.
Evidence from Mr. Martin's wife, Anne Martin, said, "He worked
for the council refurbishing their buildings and he would have
come into contact with asbestos then."
On recording a verdict of death on both occasions due to the
industrial disease of asbestosis, Coroner Hatch said, "He was
employed where he was in contact with asbestos."
ASBESTOS UPDATE: EPA Testing Ongoing at Zonolite Plant in Wash.
----------------------------------------------------------------
The U.S. Environmental Protection Agency, on Sept. 30, 2009, is
continuing its asbestos testing near W. R. Grace & Co.'s former
Zonolite factory in Spokane, Wash., The Spokesman-Review reports.
During soil testing in June 2009, the EPA found low levels of
asbestos in residential yards near the former Vermiculite
Northwest factory at 1318 N. Maple St.
Now, EPA officials want to know if routine activities like
shoveling dirt or raking could cause the asbestos to become
airborne.
Greg Weigel, on-scene coordinator for the EPA's environmental
cleanup program, said, "We're simulating what people could do on
their property. What we've learned from other sites, including
Libby, Mont., is that even low levels of asbestos in soil could
pose a risk if the asbestos is susceptible to becoming airborne."
For 22 years, Vermiculite Northwest produced the asbestos-
containing insulation, Zonolite. Rail cars brought vermiculite
ore from Libby to the plant, where furnaces heated the ore until
it puffed up into lightweight insulation.
Grace closed Vermiculite Northwest in 1973, after a whistleblower
tipped state inspectors to high asbestos levels inside. Spokane
County's road department bought the property, which was capped
with asphalt as part of the cleanup.
Earlier in 2009, the EPA declared a public health emergency in
Libby, where contamination from a now-closed vermiculite mine has
been cited in the deaths of more than 200 people. Thousands more
are believed to suffer from asbestos-related illnesses, including
asbestosis and mesothelioma.
EPA is testing two yards and some county-owned property in
Spokane. Initial results should be available within six weeks,
but additional risk calculations will be needed, Mr. Weigel
added.
ASBESTOS UPDATE: 14 Asbestos Tanks Found in Malta Gov't. Schools
----------------------------------------------------------------
According to information given to the Parliament of Malta, 14
water tanks made of asbestos are found in Government schools, the
Times of Malta reports.
Education Minister Dolores Cristina said in reply to a question
by Labour MP Evarist Bartolo that there is one asbestos tank,
used to water plants, at Floriana primary school.
There are also five asbestos tanks in Primary Schools A and B in
Mosta, two in Pembroke primary, four in Valletta primary and two
in Zebbug primary.
Most water tanks, however, are made of fiber while a few are made
of plastic or concrete.
ASBESTOS UPDATE: Chattanooga Local Pleads Guilty for CAA Breach
----------------------------------------------------------------
On Sept. 30, 2009, Gary Fillers, a Chaattanooga, Tenn.,
businessman, pleaded guilty before Magistrate Court Judge Bill
Carter for alleged asbestos-related violations of the federal
Clean Air Act, The Chattanoogan reports.
Mr. Fillers faces up to five years in prison and a fine of up to
US$250,000 or twice the gross gain or loss to the victims. He
also agreed to make restitution to the government, and he is to
provide a full accounting of his assets.
Prosecutors said on June 6, 2003 that Mr. Fillers and others
formed Watkins Street Project for salvaging items taken from the
demolition of the old Standard Coosa Thatcher plant in the 1700
block of Watkins Street.
The complaint says the group did not properly dispose of asbestos
that was in the building after substantially underestimating the
amount of the asbestos in a filing with the local Air Pollution
Control Bureau.
John C. Cruden, acting assistant attorney general for the Justice
Department's Environmental and Natural Resources Division, said,
"Work practice standards under the Clean Air Act are designed to
protect workers from the harmful effects of asbestos."
Maureen O'Mara, of the U.S. Environmental Protection Agency,
said, "Exposure to asbestos can cause cancer and other serious
respiratory diseases. Those who put the public health at risk
will be vigorously prosecuted."
ASBESTOS UPDATE: WSP Consultant Calls For Banning Hazard in UAE
----------------------------------------------------------------
Charles Faulkner, a principal consultant at WSP Environment and
Energy, is calling for a total ban on asbestos-containing
materials in the United Arab Emirates, gulfnews.com reports.
Despite neighboring countries like Oman and Saudi Arabia that
banned asbestos products and are relying on alternatives, the UAE
only prohibits the manufacture and import of asbestos board, so
mixing asbestos cement in a factory in the heart of Dubai is
completely legal, Mr. Faulkner said.
Mr. Faulkner, who is working on asbestos risk management, spoke
at a community lecture organized by the Emirates Environment
Group.
Mr. Faulkner said that more than 17,000 tons of asbestos were
imported into the country for the manufacture of asbestos cement
pipes, which are used to transport tap water and sewerage.
Abu Dhabi seems to have predominantly switched to alternatives
and the use of asbestos cement pipes is most frequent in Dubai,
Sharjah and the northern emirates, Mr. Faulkner said.
The UAE does not have any statistics on the number of asbestos-
related disease cases. A worker handling asbestos products may
experience symptoms and be treated in his home country on his
return.
Most asbestos-related diseases can be triggered by even small
levels of contamination either through clothing or the bad
management of asbestos removal when a building is demolished.
Mr. Faulkner said that "Most people have the perception that
surely there can't be much asbestos in the UAE, but in reality
nearly 3,200 building products contain asbestos."
Through a slideshow, Mr. Faulkner pointed out that a residential
area in Dubai containing nearly 400 villas has asbestos roofing.
He added, "If undamaged it is relatively safe."
Cabinet resolution 39 for 2006 states that it is prohibited to
import or manufacture asbestos board. Factories were given a one-
year shut down period which meant the ban actually came into
effect in November 2007.
ASBESTOS UPDATE: UCATT Criticizes Straw Over Compensation Claims
----------------------------------------------------------------
Alan Ritchie, of Union of Construction, Allied Trades and
Technicians (UCATT), has criticized Britain's Justice Secretary
Jack Straw of being "disingenuous" over the government's refusal
to reverse the Law Lords' decision on compensation for pleural
plaques victims, the Morning Star reports.
Mr. Ritchie challenged Mr. Straw's statement that trade union
leaders had accepted the medical evidence supporting the Law
Lords ruling.
Despite Mr. Straw's claim, union leaders "do not accept the so-
called medical evidence" that sufferers of the disease should not
get compensation, Mr. Ritchie insisted.
In 2007, the Law Lords ruled that sufferers of pleural plaques
could no longer claim compensation from bosses who exposed them
to asbestos at work. The Law Lords claimed that plaques were
harmless, even though they can lead to the development of
mesothelioma.
The decision to take away a right, which workers had held for
over 20 years, saved insurance bosses millions.
A UCATT campaign to reverse the ruling won support from other
unions, asbestos groups and backbench MPs, but the government has
failed to act.
And Mr. Straw told a meeting of Labour Party conference delegates
on Sept. 29, 2009 that his hands were tied because union leaders
had accepted the medical evidence, a claim which Mr. Ritchie was
quick to rebut.
Workers in Scotland are allowed to claim compensation under a law
passed by the Scottish National Party in 2009, which reversed the
Law Lords ruling.
Mr. Ritchie said that sufferers living in Gordon Brown or
Alistair Darling's constituencies would now get compensation -
"but if you live in Barrow or Liverpool you will not. And once
you're diagnosed with mesothelioma, there is no going back -
you're dying."
Barnsley Labour MP Michael Clapham called for the ruling to be
reversed and a no-fault liability scheme to be brought in to
compensate mesothelioma victims without them having to prove that
bosses were to blame.
UCATT said it sought a meeting with Mr. Straw and other ministers
and would step up its campaign once the Commons returns from the
summer recess in October 2009.
ASBESTOS UPDATE: Asbestos Found in Newtown High School in Conn.
----------------------------------------------------------------
Asbestos was found in an isolated area of Newtown High School in
Newtown, Conn., The News-Times reports.
Abatement professionals are scheduled to start work on Oct. 1,
2009 while the school is in session, on a two-week plan to clean
up the site.
Although the state Department of Public Health has approved the
abatement work, the timing is unfortunate. The students, faculty
and staff of Newtown High School would have been better served if
this project was scheduled when school is not in session.
The asbestos was found in an exterior wall in caulk used to seal
windows and doors. It was also found in a vapor barrier between
the wall's interior and exterior masonry, and in material used to
waterproof part of the foundation.
According to Gino Faiella, Newtown Public Schools Director of
Facilities, "This is strictly a timing issue, nothing more."
Although air samples at Newtown High School will be taken before
the project begins and during the abatement work, Mr. Faiella was
not immediately certain if there will be air sampling done after
the project, which is scheduled to end on Oct. 14, 2009.
ASBESTOS UPDATE: Fostoria Bldg. in W.Va. to be Cleared of Hazard
----------------------------------------------------------------
Asbestos is set to be removed from the fire-damaged Fostoria
building in Moundsville, W.Va., Mesothelioma & Asbestos Awareness
Center reports.
The asbestos at the site is present in floor tiles and window
caulking in the center structures of the Fostoria building, which
used to be a former glass factory.
The demolition of the Fostoria building will continue despite the
ongoing investigation into the nature of the fire that destroyed
it. The fire is of a suspicious nature because, according to
Chief of Police James Kudlak, "There's absolutely no electric in
that building."
The Fostoria building was being prepared for demolition when a
fire broke out two Saturdays ago. This fire has caused a minor
setback for asbestos abatement crews.
City Manager Allen Hendershot explained that "The fire makes it
more difficult to do the abatement. But I don't think it will be
a major hurdle."
The fire caused a roof collapse, and fire departments from four
local areas took nearly a day to finally quench the flames. Mr.
Hendershot said abatement and demolition will move forward.
The site will eventually become home to a new shopping center,
developed by Harold Games of GAB Enterprises. The project has
received a US$180,000 Brownfield Grant for the cleanup of the
property.
ASBESTOS UPDATE: Hazard Uncovered in Schroon School on Sept. 23
----------------------------------------------------------------
Classes were suspended at a school in Schroon Lake, N.Y., when on
Sept. 23, 2009, a building and renovation project uncovered
asbestos behind a bathroom wall, Mesothelioma reports.
Officials at Schroon Lake Central School hope to bring the
students back on Oct. 1, 2009. In the meantime, The Essex County
Health Department is standing by to make sure asbestos
remediation in performed in accordance with U.S. Environmental
Protection Agency regulations and the New York State Department
of Environmental Conservation mandates.
Built in 1936, the school is certainly old enough to contain
asbestos, which was used in various construction materials like
insulation, floor and ceiling tiles, sealants and mastics during
most of the 20th century.
In 1989, when health officials began to recognize its dangers,
the EPA limited the use of asbestos in domestic products to one
percent or less by weight (or volume), thus greatly curtailing
the legacy costs of asbestos illnesses, which are estimated by
the Congressional Budget Office (CBO) to total about US$120
billion to US$150 billion between 2005 and 2055.
Schroon Lake Central School serves about 275 students from
kindergarten to 12th grade, with a surprisingly comprehensive
academic program that can provide up to 22 transferable college
credits. The school was recognized in 2008 by U.S. News and
World Report as one of America's "outstanding schools."
Workers who found the asbestos immediately sealed the area to
prevent any potential fibers from becoming airborne and
threatening the future health of students.
Moreover, school officials already scheduled air quality testing
subsequent to the asbestos removal, which allows the school to
have air quality reports back before the school is reopened as
planned. If the reports are negative, the school will remain
closed until the situation is rectified, according to
Superintendent Mike Bonnewell.
The school is currently vested in a US$14.7-million dual-purpose
renovation, to upgrade the actual school building and to convert
the former gymnasium into an auditorium. Most of the work so far
has taken place on the exterior, but the removal of an interior
wall revealed asbestos.
The work is expected to be finished by the fall of 2010. Both
phases are the result of a voter-approved bond measure in 2006
which allocated about US$14.7 million for school upgrades and
improvements.
ASBESTOS UPDATE: H.B. Fuller Settles 1 Case During Aug. 29 Qtr.
---------------------------------------------------------------
H.B. Fuller Company, during the quarter ended Aug. 29, 2009,
settled one asbestos-related lawsuit for US$50,000, in which
insurers have paid or are expected to pay US$35,000 of that
amount, according to the Company's quarterly report filed with
the Securities and Exchange Commission on Oct. 1, 2009.
H.B. Fuller Company, during the quarter ended May 30, 2009,
settled one asbestos-related lawsuit for less than US$1,000.
(Class Action Reporter, July 3, 2009)
The Company has been named as a defendant in lawsuits in various
courts in which plaintiffs have alleged injury due to products
containing asbestos manufactured more than 25 years ago.
During the fourth quarter of 2007, the Company and a group of
other defendants entered into negotiations with certain law firms
to settle a number of asbestos-related lawsuits and claims over a
period of years.
In total, the Company expects to contribute up to US$4,280,000
towards the settlement amount to be paid to the claimants in
exchange for a full release of claims. Of this amount, the
Company's insurers have committed to pay US$2,068,000 based on a
probable liability of US$4,280,000.
During the second quarter of 2009, the Company paid US$1,079,000
toward this settlement, with its insurers paying US$507 of that
amount. The Company accrued US$3,082,000 and recorded a
receivable of US$1,490,000 as of Aug. 29, 2009.
As of Aug. 29, 2009, the Company's probable asbestos liabilities
were US$3,915,000 and asbestos insurance recoveries were
US$2,188,000.
St. Paul, Minn.-based H.B. Fuller Company makes adhesives,
sealants, powder coatings for metals (office furniture,
appliances), and liquid paints (in Latin America). Customers
include companies in the packaging, graphic arts, automotive,
woodworking, and nonwoven textiles industries.
ASBESTOS UPDATE: Peirce Clients Encouraged to See Pulmonologists
----------------------------------------------------------------
Circuit Judge Arthur Recht of Wheeling, W.Va., on Sept. 14, 2009,
ruled that every client of Robert Peirce, Esq., who intends to
pursue an asbestos case against CSX Transportation Inc. in West
Virginia, must consult with a pulmonologist, not a radiologist,
The West Virginia Record reports.
Judge Recht singled out Bridgeport, W.Va., radiologist Ray
Harron, who lost his license in seven states, after a judge
caught him diagnosing two diseases in one X-ray, thousands of
times.
Judge Recht wrote that on a motion from CSX Transportation he
would dismiss, without prejudice, any claim of nonmalignant
disease that relied on Mr. Harron. The judge took other steps to
distill valid claims from a mass of Peirce suits against CSX.
By Dec. 31, 2009, each plaintiff must submit a statement that he
or she is aware of the suit and believes the claim is well
founded. Each plaintiff must state that he or she has been
advised of the potential cost of the litigation and desires to
pursue it.
Each must read Judge Recht's order and state that he or she is
aware that failure to comply might result in dismissal with
prejudice. Those who miss the deadline will transfer to an
inactive docket on Feb. 1, 2010.
Those who remain active must deliver to the defendants their
medical records and a history of other asbestos exposure claims
they have pursued. After that, CSX can depose any plaintiff or
pulmonologist.
Judge Recht set an April 1, 2010 deadline for pulmonary
examinations. If a claimant died, he wrote, a pulmonologist must
review the medical history. He added that pulmonologists who
examine plaintiffs must testify as experts at trial.
Judge Recht and Ohio Circuit Judge Ronald Wilson share
responsibility for asbestos claims by appointment of the mass
litigation panel of the Supreme Court of Appeals. Judge Recht
handles claims of railroad workers under the Federal Employers
Liability Act, and Judge Wilson handles other claims.
CSX lawyer Jim Turner, Esq., of Huddleston and Bolen in
Huntington, W.Va., wrote in an Aug. 13, 2009 brief that about
2,300 Peirce plaintiffs originally sued.
Judge Recht dismissed about a third, Mr. Turner wrote, dropping
CSX's count to about 1,580. Mr. Peirce's count has dropped to
about 1,200, Mr. Turner said, adding that he could not account
for the discrepancy.
Mr. Turner wrote that Mr. Peirce's firm has classified 69 cases
as malignant.
ASBESTOS UPDATE: Inquiry on Mosaic K2 Asbestos in Canada Ongoing
----------------------------------------------------------------
The government of Saskatchewan, Canada, reopened an investigation
into a potential asbestos situation at the Mosaic K2 facility, a
potash mill near Esterhazy, Saskatchewan, CBC News reports.
In March 2008, workers at the facility were removing old screens
when concerns were raised about the material being cut.
Welder Vince Flaman was working for a subcontractor, E. M.
Welding, when he became worried. He said he repeatedly raised
concerns with the company he worked for and with Mosaic. He
wanted the screens tested to see if they contained asbestos.
Mr. Flaman said, "We were taking it, cutting it out and
disturbing it and blowing it all over the place. We weren't given
masks, we weren't given showers, we weren't given nothing. We
were taking it home to our kids, our families."
In June 2009, a provincial mines inspector investigated and
confirmed there was asbestos present. However, in the report,
which has been obtained by CBC News, the inspector also concluded
workers were at no risk.
Since then, Saskatchewan has decided to take a second look at the
case, said Glennis Bihun, the executive director of the
Occupational Health and Safety branch.
Ms. Bihun said, "Some further concerns were raised with
occupational health and safety, and we're currently following up
on those concerns."
ASBESTOS UPDATE: Swindon Schools, Gov't. Bldgs. Contain Asbestos
----------------------------------------------------------------
New figures by the Freedom of Information (FoI) show that
asbestos is found in schools and in 90 percent of council homes
in Swindon, England, the Swindon Advertiser reports.
Another 200 properties owned by Swindon Council have asbestos.
About 11,700 Council homes contain asbestos in vinyl floor tiles,
decorative finishings, garage roofs or other areas, according to
the FoI statistics.
On Sept. 30, 2009, Swindon Council revealed a range of measures
it is using to manage asbestos, and the Health and Safety
Executive (HSE) stressed if properties containing asbestos were
well maintained there should be no cause for concern.
Swindon Council's cabinet member for housing, David Renard, said,
"As a general rule, asbestos is not dangerous if it is left
alone. It is clearly something we take very seriously, and we
manage it safely."
The Broadgreen Community Centre, Broome Manor Golf complex, the
David Murray John Tower, the Link Centre, Kingsdown Crematorium,
The Steam Museum and Wat Tyler House are a few of the buildings
named by the council containing asbestos.
The schools named include Wroughton Junior and Infants schools,
Drove Primary School and Rodbourne Cheney Primary School.
Solicitor Brigitte Chandler, of Charles Lucas and Marshall, who
has fought cases on behalf of families affected by asbestos-
related diseases in Swindon is surprised by the level of the
substance in town buildings.
Dick Mattick, branch secretary of the National Association of
Schoolmasters Union of Women Teachers (NASUWT), said, "Asbestos
in schools is something the union is anxious to keep tabs on.
When building work is taking place, you don't know what is going
to turn up."
ASBESTOS UPDATE: West Lancashire Criticized for Botched Cleanup
---------------------------------------------------------------
The West Lancashire Council in West Lancashire, England, was
criticized for failing to remove asbestos illegally disposed of
on nearby streets, the Ormskirk & Skelmersdale Advertiser
reports.
Graham Gilbert, of Grimshaw Lane, Ormskirk, said he spent 13
months trying to get the Council to move a builders' waste sack
full of broken asbestos from Pippin Street and it is still there.
In August 2009, Mr. Gilbert was very upset to see piping and
guttering containing asbestos being dumped on Blackacre Lane. He
reported the problem to the Council's Environmental Health
Department.
The asbestos-containing articles were not removed and the pipes
were then broken up by a grass cutting machine. Mr. Gilbert
believes it was the Council that did this but officers have
claimed it was the landowner.
A West Lancashire Council spokesman said, "We condemn completely
the irresponsible and illegal behavior of those who carried out
this fly-tipping, particularly since asbestos can be hazardous."
ASBESTOS UPDATE: Ad-Bar Consultants to Manage Cleanup at Galilee
----------------------------------------------------------------
The tender committee of Israel's Ministry of Environmental
Protection, on Sept. 24, 2009, selected Ad-Bar Consultants Ltd.
to manage the the asbestos cleanup project in Western Galilee,
the Israel Ministry of Environmental Protection reports.
Ad-Bar Consultants Ltd. was one of eight companies that bid for
the project. The Company's responsibilities include:
-- Preparation of tenders for asbestos contractors and
inspectors.
-- Preparation and publication of tenders for earthworks,
transport and disposal site contractors.
-- Establishment of an information center and website to
serve the public.
-- Coordination among all stakeholders in the project,
including local authorities, infrastructure owners, and
others.
Professionals of the Hazardous Dust Division at the Ministry of
Environmental Protection will oversee the project and will
approve all activities in the area.
In the first phase, some ILS20 million have been allocated for
the project. Environmental Protection Minister Gilad Erdan said
that in the first phase the project will concentrate on cleanup
of public areas, to be followed, based on progress made and
budgetary availability, by cleanup of private lands.
Minister Erdan added that the project is of major national
importance in light of the hazards to which the public in these
areas is exposed. He made it clear that he intends to follow up
on the progress of the project in order to accelerate the pace at
which asbestos pollution is reduced in the Western Galilee.
It is anticipated that work in the field will begin in about four
months, once the necessary organizational processes are
completed.
Professionals in the Ministry estimate that the asbestos cleanup
project will span some five years.
ASBESTOS UPDATE: Asbestos Delays Opening of Shoreham Elementary
---------------------------------------------------------------
Plans to open the Shoreham Elementary School in Shoreham, Addison
County, Vt., were delayed by the discovery of asbestos and mold,
the Mesothelioma Cancer News reports.
As reported by the Addison County Independent, Addison County
Supervisory Union (ACSU) officials recently announced that the
school will open almost two weeks after the date students were
expecting to begin.
Shoreham Elementary principal Heather Best is quoted in the
report as stating of the delay and new anticipated Sept. 14, 2009
start date, "All the information that we needed to make our best
estimate came in yesterday. We are fairly positive that we'll be
able to meet that date."
ASBESTOS UPDATE: Hoosiers Seeking Change in Asbestos Regulations
----------------------------------------------------------------
On Oct. 1, 2009, Hoosiers who are dying from mesothelioma are
calling on Indiana State lawmakers to pass a new law that would
allow them to sue the companies responsible for their exposure,
the Evansville Courier & Press reports.
Dorothy Kuykendall, a 76-year-old mesothelioma sufferer from
Terre Haute, was exposed to asbestos, more than three decades ago
when she handled the material regularly as a worker at Terre
Haute's Glas-Col Apparatus Co.
In April 2009, Mrs. Kuykendall learned that she is dying of
cancer. Even though she has not handled asbestos since 1975, her
doctors say that exposure is the cause.
State statute gives Hoosiers 10 years to file a lawsuit after
contact with harmful materials. Since Indiana does not make an
exception for those with latent diseases, Mrs. Kuykendall has no
recourse. She cannot get workers' compensation, and she cannot
sue.
Mrs. Kuykendall was part of a group of advocates who asked a
panel of state lawmakers on Oct. 1, 2009 to pass legislation that
would allow those who develop diseases caused by asbestos decades
after being exposed to sue the companies responsible for the
exposure.
Indiana is the only state that does not have a law on the books
allowing for exceptions for latent diseases, according to Russell
Sipes, Esq., an attorney who testified on Oct. 1, 2009 and who
represents clients who suffer from asbestos-related diseases.
The legislation Mr. Sipes called for would maintain the state's
current 10-year window, but would carve out an exception that
allows Hoosiers who are beyond that time frame to sue within two
years of being diagnosed.
It was an exception the General Assembly approved in 1989. But a
2003 state Supreme Court ruling drastically altered the meaning
of that law, rendering it essentially useless, Mr. Sipes said.
One person who called for the new law was a state lawmaker
himself. Sen. John Waterman, R-Shelburn, told his colleagues that
in the 1960s, he worked for a company that removed aging boilers
from homes and businesses. He described a white cloud formed by
asbestos surrounding him as he took a sledgehammer to the
boilers.
The committee's chairwoman, Rep. Linda Lawson, D-Hammond, said
she expects her panel to recommend that the General Assembly pass
a bill allowing for the two-year exemption for latent diseases
during the 2010 session.
Tony Payton, a 63-year-old from Louisville, Ky., told the
committee that he and his family would be bankrupt if he had the
misfortune of living just across the Ohio River in Indiana.
However, in Kentucky, he went to court and won a settlement.
Mr. Payton had surgery to remove cancer caused by asbestos, but
this summer was told that the cancer has returned. He said he was
there to testify on behalf of a friend who was a member of the
same union in the 1960s and 1970s, but like roughly one-third of
that union's members, lived in southern Indiana.
ASBESTOS UPDATE: Tesoro Refinery May Have Asbestos, SCAQMD Says
---------------------------------------------------------------
Sam Atwood, a spokesperson for South Coast Air Quality Management
District says that the coker unit at Tesoro Corporation's
refinery in Wilmington, Los Angeles, may have debris contaminated
with asbestos, my SA business reports.
The refinery caught fire last Sept. 25, 2009. Tesoro spokesman
Lynn Westfall did not comment.
A coker uses extreme heat and pressure to convert heavy oil into
lighter products like gasoline and heating oil.
ASBESTOS UPDATE: St. Sophia Camp in Calif. Slated for Demolition
----------------------------------------------------------------
The St. Sophia Camp in Old Waterman Canyon, San Bernardino,
Calif., is set to be demolished, Mesothelioma News reports.
St. Sophia was abandoned by its owner, St. Sophia Cathedral of
Los Angeles, after a flash flood destroyed it on Dec. 25, 2003
and killed over a dozen people.
A fire at the camp during the last week of August 2009 was
started by squatters that caused the roof and wall of the main
building to collapse.
The cathedral hired William Kanayan Construction of Rimforest,
Calif., to perform demolition and site clearance. However, there
are environmental issues that need to be addressed before
demolition work can begin.
First, they need to get approval to cut a driveway into the
property so that demolition crews and equipment can have access.
Asbestos and other hazardous materials must be abated as well,
requiring permits from San Bernardino County.
Asbestos is a toxic substance that was used in many building
materials before 1980.
ASBESTOS UPDATE: Calif. Court Flips Dismissal of Campbell Action
----------------------------------------------------------------
The Court of Appeal, Second District, California, reversed the
ruling of the Superior Court of Los Angeles County, which
dismissed Forbes M. Campbell's asbestos lawsuit filed against
various defendants.
The case is styled Forbes M. Campbell, Plaintiff and Appellant v.
American Standard, Inc., et al., Defendants and Respondents.
Judges Willhite, Suzukawa, and Manella entered judgment in Case
No. B209923 on Aug. 25, 2009.
Mr. Campbell has lived and worked in Canada and the United
States. In October 2006, he was diagnosed in Canada as suffering
from malignant pleural mesothelioma. In late 2006 or early 2007,
he moved to California.
On Jan. 31, 2007, Mr. Campbell initiated the underlying action
against respondents and other defendants in Los Angeles Superior
Court. His complaint named 50 defendants, and asserted claims for
negligence, strict liability, and conspiracy.
On June 28, 2007, respondent Warren Pumps, LLC, filed a forum non
conveniens motion, contending that the action should be dismissed
or stayed in favor of an action in Canada. Mr. Campbell opposed
the motion.
On July 26, 2007, the trial court granted the motion, stayed Mr.
Campbell's action, and directed him to file an action in Canada
"forthwith." On Sept. 12, 2007, Mr. Campbell filed an ex parte
application for an order lifting the stay, or in the alternative,
an order shorting time for notice and a hearing on a motion to
lift the stay.
The trial court declined to lift the stay, but granted the
request for an order shortening time and deemed Mr. Campbell's
application to be a motion.
On Oct. 3, 2007, the trial court denied Mr. Campbell's motion. On
Jan. 25, 2008, Mr. Campbell filed a second ex parte application
for an order lifting the stay. The application was supported by
a declaration from Canadian attorney Gordon McKinnon, who opined
that under Canadian law, the most appropriate forums for Mr.
Campbell's claims were Manitoba and Ontario, as it appeared that
his exposure to asbestos occurred primarily while he worked in
those provinces.
At a hearing on Jan. 25, 2008, the trial court denied the ex
parte application. Mr. Campbell made no further request for
relief from the stay.
Respondents asked the trial court to dismiss the action. The
trial court granted the oral request, and dismissed the action.
Mr. Campbell filed his notice of appeal on Aug. 6, 2008.
Because the dismissal of an action pending for less than two
years was improper, the Appeal Court reversed and the matter was
remanded for further proceedings.
Simon, Eddins & Greenstone LLP and Brian P. Barrow, Esq.,
represented Forbes M. Campbell.
ASBESTOS UPDATE: Appeal Court Upholds Pacific's Summary Judgment
----------------------------------------------------------------
The Court of Appeals of Washington, Division 1, affirmed the
ruling of the King County Superior Court, which granted summary
judgment in favor of Pacific Scientific Company, in an asbestos
suit filed by Darlyne Cashman on behalf of her late husband,
Robert Cashman.
The case is styled Darlyne Cashman, for herself and as Personal
Representative of the Estate of Robert Cashman, Deceased,
Appellant v. Pacific Scientific Company, Respondent.
Judges Lau, Dwyer, and Cox entered judgment in Case No.
61913-6-I on Aug. 24, 2009.
From around 1967 until 1975, Mr. Cashman worked at Puget Sound
Heat Treating (PSHT) in Tacoma, Wash., as a heat-treating helper
and later as a shop foreman. He also worked as a heat treater at
the Naval Underseas Warfare Center in Keyport from around 1975
until he retired in 1997.
In May 2005, Mr. Cashman was diagnosed with mesothelioma. In
August 2005, the estate sued numerous defendants, including
Pacific. The estate alleged that Pacific made and sold asbestos-
containing furnaces and generators, Pacific failed to warn Mr.
Cashman of the dangers of asbestos exposure, and he contracted
mesothelioma as a result. He died on Nov. 20, 2005.
Mr. Cashman's videotaped perpetuation deposition was taken on
Sept. 30, 2005. Before his death, defense counsel notified the
estate's attorneys that they reserved the right to have a defense
pathologist observe the autopsy and to preserve all lung and
pleural tissue samples. They later learned, however, that Mr.
Cashman had been cremated without an autopsy.
On Aug. 10, 2006, Pacific and other defendants moved to dismiss
the lawsuit. The trial court denied the motion. Defendants then
sought, but the Appeals Court denied, discretionary review. The
defendants renewed their motion to dismiss the lawsuit. The trial
court ordered a lesser sanction.
On Aug. 31, 2007, Pacific moved for summary judgment dismissal.
On Nov. 27, 2007, the trial court granted Pacific's motion for
summary judgment dismissal. The estate appealed.
William Joel Rutzick, Esq., of Schroeter Goldmark & Bender in
Seattle, Charles S. Siegel, Esq., of Waters & Kraus LLP in
Dallas, represented Darlyne Cashman.
Randy Jarl Aliment, Esq., Christopher S. Marks, Esq., David
Albert Shaw, Esq., Daniel W. Ferm, Esq., of Williams Kastner &
Gibbs in Seattle, Pacific Scientific Company.
ASBESTOS UPDATE: Tenn. Court Reverses Ruling in Hensley Lawsuit
---------------------------------------------------------------
The Court of Appeals of Tennessee reversed the judgment of the
Circuit Court for Hamilton County in an asbestos-related lawsuit
involving Thurston Hensley and CSX Transportation Inc.
The case is styled Thurston Hensley v. CSX Transportation Inc.
Judges Charles D. Susano, Jr., D. Michael Swiney, and John W.
McClarty entered judgment in Case No. E2007-00323-COA-R3-CV on
Aug. 26, 2009.
This case was back before the Appeal Court on remand from the
U.S. Supreme Court "for further proceedings not inconsistent with
its opinion" in a case filed by CSX against Mr. Hensley (Hensley
II). The case was first before the Appeal Court in Hensley v. CSX
Transportation, Inc. (Hensley I).
Hensley I was an appeal by CSX of a judgment entered on a jury
verdict in the amount of US$5 million in favor of Mr. Hensley. He
sued under the Federal Employees Liability Act (FELA), to recover
for asbestosis, a lung disease caused by his exposure to asbestos
while working for CSX some 30 plus years, and toxic
encephalophathy, a brain illness caused by exposure to a solvent
Mr. Hensley used for many years.
The Appeal Court affirmed the judgment in Hensley I. Of
particular significance was the Appeal Court's holding in Hensley
I that the trial court did not err in refusing to instruct the
jury, as requested by CSX, that Mr. Hensley's fear of cancer must
be "genuine and serious" to be compensable.
Hensley II reversed the Appeal Court's ruling. Since there was a
"reasonable probability" under federal law that the error
affected the judgment, the Appeal Court reversed the judgment of
the trial court and remanded for a new trial limited to the issue
of damages.
Gareth S. Aden, Esq., and Christopher W. Cardwell, Esq., in
Nashville, Tenn.; Randall A. Jordan, Esq., Grant Buckley, Esq,
Karen Jenkins Young, Esq., and Christopher R. Jordan, Esq., in
St. Simons Island, Ga.; H. Dean Clements, Esq., in Chattanooga,
Tenn.; and Evan M. Tager, Esq., Dan Himmelfarb, Esq., and
Theodore J. Weiman, Esq., in Washington, D.C., represented CSX
Transportation, Inc.
H. Douglas Nichol, Esq., in Knoxville, Tenn., and Joseph D.
Satterley, Esq., in Louisville, Ky., represented Thurston
Hensley.
ASBESTOS UPDATE: RPM Int'l. Has $396.77M Liabilities at Aug. 31
---------------------------------------------------------------
RPM International Inc.'s long-term asbestos-related liabilities
amounted to US$396,772,000 as of Aug. 31, 2009, compared with
US$425,328,000 as of May 31, 2009, according to the Company's
quarterly report filed with the Securities and Exchange
Commission on Oct. 5, 2009.
The Company's current asbestos-related liabilities amounted to
US$75 million as of Aug. 31, 2009, compared with US$65 million as
of May 31, 2009.
Payments made for asbestos-related claims were US$18,556,000
during the three months ended Aug. 31, 2009, compared with
US$16,036,000 during the three months ended Aug. 31, 2008.
Medina, Ohio-based RPM International Inc. owns subsidiaries that
produce specialty coatings and sealants. Industrial products
include roofing systems, sealants, corrosion control coatings,
flooring coatings and specialty chemicals. Consumer products are
used by professionals and do-it-yourselfers for home maintenance
and improvement, boat repair and maintenance, and by hobbyists.
ASBESTOS UPDATE: 10,271 Actions Ongoing v. RPM Units at Aug. 31
---------------------------------------------------------------
RPM International Inc.'s subsidiaries faced a total of 10,271
active asbestos cases as of Aug. 31, 2009, compared with a total
of 11,399 cases as of Aug. 31, 2008, according to the Company's
quarterly report filed with the Securities and Exchange
Commission on Oct. 5, 2009.
The Company's subsidiaries faced a total of 10,173 active
asbestos cases as of May 31, 2009, compared with a total of
11,202 cases as of May 31, 2008. (Class Action Reporter, Aug. 7,
2009)
Certain of the Company's wholly owned subsidiaries, principally
Bondex International, Inc., are defendants in various asbestos-
related bodily injury lawsuits filed in various state courts with
the vast majority of current claims pending in six states: Texas,
Florida, Mississippi, Maryland, Illinois and Ohio.
These cases generally seek unspecified damages for asbestos-
related diseases based on alleged exposures to asbestos-
containing products previously manufactured by the Company's
subsidiaries or others.
The subsidiaries secured dismissals and/or settlements of 424
cases for the quarter ended Aug. 31, 2009, compared with a total
of 201 cases dismissed and/or settled for the quarter ended Aug.
31, 2008.
For the quarter ended Aug. 31, 2009, the subsidiaries made total
cash payments of US$18.6 million relating to asbestos cases,
which included defense-related payments paid during the quarter
of US$7.5 million, compared to total cash payments of US$16
million relating to asbestos cases during the quarter ended Aug.
31, 2008, which included defense-related payments paid during the
quarter of US$6.7 million.
Excluding defense-related payments, the average payment made to
settle or dismiss a case was about US$26,000 for the quarter
ended Aug. 31, 2009 and US$46,000 for the quarter ended Aug. 31,
2008.
Medina, Ohio-based RPM International Inc. owns subsidiaries that
produce specialty coatings and sealants. Industrial products
include roofing systems, sealants, corrosion control coatings,
flooring coatings and specialty chemicals. Consumer products are
used by professionals and do-it-yourselfers for home maintenance
and improvement, boat repair and maintenance, and by hobbyists.
ASBESTOS UPDATE: RPM Units' Bid in Coverage Action Still Pending
----------------------------------------------------------------
An appeal filed by subsidiaries of RPM International Inc. over
asbestos-related coverage litigation is pending in the U.S. Sixth
Circuit Court of Appeals.
At present, the appellate court has not yet entered a scheduling
order in connection with the appeal.
In fiscal 2004, certain of the Company's subsidiaries' third-
party insurers claimed exhaustion of coverage. On July 3, 2003,
certain of the subsidiaries filed the case of Bondex
International, Inc. et al. v. Hartford Accident and Indemnity
Company et al., Case No. 1:03-cv-1322, in the U.S. District Court
for the Northern District of Ohio, for declaratory judgment,
breach of contract and bad faith against these third-party
insurers, challenging their assertion that their policies
covering asbestos-related claims have been exhausted.
The coverage litigation involves insurance coverage for claims
arising out of alleged exposure to asbestos containing products
manufactured by the previous owner of the Bondex tradename before
March 1, 1966.
On March 1, 1966, Republic Powdered Metals Inc. (as it was known
then), purchased the assets and assumed the liabilities of the
previous owner of the Bondex tradename. That previous owner
subsequently dissolved and was never a subsidiary of Republic
Powdered Metals, Bondex, RPM, Inc. or the Company.
Because of the earlier assumption of liabilities, however, Bondex
has historically responded, and must continue to respond, to
lawsuits alleging exposure to these asbestos-containing products.
The Company discovered that the defendant insurance companies in
the coverage litigation had wrongfully used cases alleging
exposure to these pre-1966 products to erode their aggregate
limits. This conduct, apparently known by the insurance industry
based on discovery conducted to date, was in breach of the
insurers' policy language.
Two of the defendant insurers have filed counterclaims seeking to
recoup certain monies should plaintiffs prevail on their claims.
During the second fiscal quarter ended Nov. 30, 2006, plaintiffs
and one of the defendant insurers reached a settlement of US$15
million, the terms of which are confidential by agreement of the
parties. The settling defendant was dismissed from the case.
In 2007, plaintiffs had filed motions for partial summary
judgment against the defendants and defendants had filed motions
for summary judgment against plaintiffs. In addition, plaintiffs
had filed a motion to dismiss the counterclaim filed by one of
the defendants.
On Dec. 1, 2008, the court decided the pending motions for
summary judgment and dismissal. The court denied the plaintiffs'
motions for partial summary judgment and granted the defendants'
motions for summary judgment against plaintiffs on a narrow
ground. The court also granted the plaintiffs' motion to dismiss
one defendant's amended counterclaim.
In light of its summary judgment rulings, the court entered
judgment as a matter of law on all remaining claims and
counterclaims, including the counterclaim filed by another
defendant, and dismissed the action. The court also dismissed
certain remaining motions as moot.
Medina, Ohio-based RPM International Inc. owns subsidiaries that
produce specialty coatings and sealants. Industrial products
include roofing systems, sealants, corrosion control coatings,
flooring coatings and specialty chemicals. Consumer products are
used by professionals and do-it-yourselfers for home maintenance
and improvement, boat repair and maintenance, and by hobbyists.
ASBESTOS UPDATE: Dayton Property Fined $$7.2T for Storage Breach
----------------------------------------------------------------
The Oregon Department of Environmental Quality issued a US$7,200
penalty to Bob Wayne Jonas for openly accumulating asbestos-
containing materials on his property after a building demolition
there, according to a DEQ press release dated Oct. 5, 2009.
Mr. Jonas is the owner of the property at 14425 SE Wallace Road
in Dayton, Ore.
The penalty stemmed from an open burning complaint DEQ received
about the property on March 12, 2009. Several days later, during
an inspection of the site, DEQ noted a pile of burned debris that
included remnants of asphalt roofing, Styrofoam and fiberglass. A
sample of the asphalt roofing contained 30 percent chrysotile
asbestos.
DEQ also found multiple layers of roofing materials in an
unburned debris pile nearby. Samples of that material showed 20
percent chrysotile asbestos. The inspector also found vapor
barrier paper at the site that contained two percent chrysotile
asbestos.
DEQ later learned that Mr. Jonas, who demolished a building on
the property in 2006, had stored the demolition debris at the
site on an open concrete slab.
Both the burned, asbestos-containing roofing material and the
unburned asbestos-containing roofing material and vapor barrier
paper were brittle and considered friable -- capable of breaking
up and dispersing asbestos fibers into the air.
To protect the public from asbestos exposure, DEQ requires that
asbestos abatement projects only be performed by contractors who
are specially trained and licensed in such work. Mr. Jonas was
not licensed to perform asbestos abatement projects.
DEQ noted that when informed of the violation, Mr. Jonas promptly
hired a licensed asbestos abatement contractor who cleaned up the
materials. DEQ considered that response when tabulating the
penalty amount.
Mr. Jonas has until Oct. 14, 2009 to appeal the penalty.
ASBESTOS UPDATE: 2 Cases Filed During Sept. 14-18 in Madison Co.
----------------------------------------------------------------
During the week of Sept. 14, 2009 to Sept. 18, 2009, two new
asbestos-related lawsuits were filed in Madison County Circuit
Court, Ill., The Madison St. Clair Record reports.
These cases are:
-- (Case No. 09-L-995) James Dobbins of Missouri, a painter and
carpenter 1938 until 1978, claims mesothelioma. Andrew
O'Brien, Esq., Christopher Thoron, Esq., Christina J.
Nielson, Esq., Bartholomew J. Baumstark, Esq., and Gerald J.
FitzGerald, Esq., of O'Brien Law Firm in St. Louis will
represent Mr. Dobbins.
-- (Case No. 09-L-974) Sandra K. and Robert Wiley Jr. of
Illinois claim Mrs. Wiley developed lung cancer after she was
secondarily exposed to asbestos fibers through her husband,
who worked as a steel worker at American Steel from 1963
until 2003. Elizabeth V. Heller, Esq., and Robert Rowland,
Esq., of Goldenberg, Heller, Antognoli and Rowland in
Edwardsville, Ill., represent the Wileys.
ASBESTOS UPDATE: Judges to be Featured in HB Conferences in N.Y.
----------------------------------------------------------------
The HB Conferences to be held in New York on December 2009 will
feature asbestos trusts and asbestos judges, according to an HB
Litigation Conferences press release dated Oct. 6, 2009.
Between US$30 billion and US$34 billion reside in the asbestos
bankruptcy trusts, funds set aside from companies in bankruptcy
to pay claims brought by workers who contracted asbestos-related
diseases, according to estimates presented during September
2009's "National Asbestos Litigation Conference" produced in San
Francisco by HB Litigation Conferences.
The conference also featured panels of state court judges from
around the country who shared their views on managing the massive
ongoing asbestos litigation.
It is these two subjects, the asbestos bankruptcy trusts and the
judges' handling and resolution of asbestos cases, that will be
discussed in-depth at two back-to-back conferences produced by HB
Litigation Conferences, this time in New York.
On Dec. 2, 2009, HB will present "The Asbestos Trusts Conference"
chaired by David Bernick of Kirkland & Ellis of Chicago and
Sander Esserman of Stutzman, Bromberg, Esserman & Plifka of
Dallas.
On Dec. 3, 2009, HB will present "The Northeast Judicial Forum on
Asbestos" chaired by Perry Weitz of Weitz & Luxenberg of New York
and Judy Yavitz of Reed Smith, also of New York.
Both programs will be held at the Concierge Conference Center in
New York. They will be webcast and are fully accredited for
continuing legal education (CLE) purposes.
A limited number of in-house counsel will be admitted for free.
ASBESTOS UPDATE: Seoul to Safely Manage Asbestos in Urban Bldgs.
----------------------------------------------------------------
The city of Seoul, South Korea, on Oct. 6, 2009, announced plans
to safely manage asbestos in buildings slated for demolition in
urban redevelopment projects, The Korea Herald reports.
The plans state that Seoul will organize a group of citizens who
monitor the entire process of removing asbestos-containing
materials and handling them after removal. The process will also
be publicized on the Internet to ease concerns on asbestos.
Seoul decided to organize an advisory group consisting of experts
on asbestos to have it check the demolition of each building in
the redevelopment areas and offer advice on the safe handling of
asbestos.
Seoul also plans to make and disclose an "asbestos map" of each
building to be demolished, which shows how much of the substance
the building contains and which parts contain it.
The city will also make it compulsory to hire a supervisor to
oversee the handling of asbestos in a demolition site. Regularly,
Seoul will check the amount of asbestos in the air near
demolition sites and immediately notify the Labor Ministry to
take action if the amount exceeds a safe level.
ASBESTOS UPDATE: Calderdale's Council to Lobby v. Asbestos Rule
---------------------------------------------------------------
The Council at Calderdale, West Yorkshire, England, agreed to
lobby the United Kingdom Government in attempting to overturn a
ruling that prevents people with asbestos-related diseases
claiming compensation, the Evening Courier reports.
Hundreds of people, who worked at the former Acre Mill factory,
at Old Town, Hebden Bridge, died as a result of handling asbestos
and contracting asbestosis. The factory closed in 1970 but many
former workers are believed to be still suffering from the
debilitating lung disease.
In 2007, the House of Lords backed the insurance industry's
decision to stop paying compensation to people who develop
pleural plaques, a scarring of the lungs caused by breathing in
asbestos.
Labour group leader Tim Swift (Town) told the Council that in
view of the deaths and disabilities that have been caused to
people locally, it is right to support the campaign to overturn
the House of Lords decision.
ASBESTOS UPDATE: Mancuso Asbestos Case Still Ongoing in Syracuse
----------------------------------------------------------------
The Mancuso asbestos case is still ongoing in the U.S. District
Court in Syracuse, N.Y., in which a new development has occurred,
Mesothelioma.com reports.
According to the attorney for one the Mancuso brothers, Paul
Mancuso will not be pleading guilty. Paul Mancuso, his brother
Steven Mancuso, and their father, are charged with a conspiracy
related to asbestos removal.
In a letter sent to District Court Judge Frederick Scullin Jr.,
Paul Mancuso's attorney, John Casey, Esq., stated, "I have
discussed this case with all counsel today and report that there
will not be a disposition of the charges by plea."
Paul Mancuso was convicted of violating asbestos removal laws,
leading to a lifetime ban from the industry. The alleged
concealment of his involvement in several asbestos-removal
companies was what led to the current court case.
The next court date for the Mancuso case is scheduled for Oct. 8,
2009.
At the hearing, it will be determined if Patrick Fraccola, a
former agent with the U.S. Environmental Protection Agency,
provided false information to a judge in order to obtain search
warrants against the Mancuso family.
If this is found to be the case, all evidence found using this
search warrant could be thrown out of court.
ASBESTOS UPDATE: 400 North Wales Schools Still Awaiting Cleanup
---------------------------------------------------------------
More than 400 schools in North Wales are still waiting to have
asbestos abated from their buildings, the Daily Post reports.
Using the Freedom of Information Act, the Daily Post asked every
North Wales council to tell how many schools contain asbestos and
what was being done about it. They revealed that 357 primary,
secondary and special schools still have asbestos, including 115
in Gwynedd.
There are also 60 schools in Conwy containing asbestos, 58 in
Flintshire, 56 in Denbighshire, 56 on Anglesey, and 63 in
Wrexham, where the local authority has an annual budget of
GBP150,000 to get rid of asbestos.
All of the councils said nobody had been sick or off ill because
of asbestos, though an inquest last spring found the 69-year-old
retired teacher Renee Blodwen Eden, from Anglesey, was most
likely killed by exposure to asbestos in a school building in
Flintshire. She retired in 1998.
On Anglesey, every school on the island, bar Ysgol y Graig and
Ysgol Bodedern, has asbestos, while a Denbighshire spokeswoman
confirmed the county has 48 primary schools and eight secondary
schools which have been found to contain the substance.
Among them was St Brigid's in Denbigh, where teachers only found
out a school hall was covered in asbestos last July 2009 when
asked to hand out letters informing parents and pupils about the
problem.
In Conwy, a spokeswoman said 60 schools have asbestos-containing
materials, adding, "All schools under authority control have a
copy of the County Asbestos Code of Practice and all head
teachers have received training in asbestos management and all
matters related."
ASBESTOS UPDATE: Charges Against San Diego Gas Dropped on Oct. 6
----------------------------------------------------------------
Assistant U.S. Attorney Melanie Pierson, on Oct. 6, 2009, dropped
criminal charges against San Diego Gas & Electric Co. in a case
alleging the Company violated safety standards while removing
asbestos from a Lemon Grove, Calif., site, The Union-Tribune
reports.
Debra L. Reed, president and chief executive officer of SDG&E,
said, "We have said all along - and the evidence has shown - that
the project complied with all applicable laws and that public
health was never at risk."
Juanita Gonzalez, one of 17 residents who sued SDG&E, said the
group still planned to pursue its case in San Diego Superior
Court.
In July 2009, a jury convicted SDG&E on three criminal counts of
improperly removing asbestos and one count of making a false
statement.
Kyle Rheubottom, a contractor working for SDG&E, and David
Williamson, an SDG&E environmental specialist, each were
convicted of one count of improperly disposing of asbestos. A
third worker was acquitted.
SDG&E faced a fine of up to US$2 million. The workers faced up to
five years in prison and a US$250,000 fine.
In a January 2006 indictment, prosecutors said SDG&E and the
workers improperly removed asbestos from a 16-acre property in
Lemon Grove, just east of San Diego's Encanto neighborhood, where
the utility had more than nine miles of underground gas
pipelines. SDG&E sold the property to a developer and began
removing the pipes, which had insulation containing asbestos, in
September 2000.
U.S. Federal Judge Dana Sabraw threw out the conviction and ruled
in September 2009 that 27 samples of asbestos, the heart of the
prosecution's case, could not be used as evidence.
Judge Sabraw said the government used the wrong testing method to
determine the amount of asbestos.
ASBESTOS UPDATE: Construction Crews Finds Hazard at N.Y. School
---------------------------------------------------------------
During an ongoing construction, crews uncovered asbestos
insulation at the John C. Birdlebough High School, in Phoenix,
N.Y., Mesothelioma reports.
The insulation was found around the water pipes as well as in
some of the floor and ceiling tiles.
Scott Bulriss, a contractor with the company who is working on
the building, said that asbestos is commonly found in many
structures built from the early 1900s up until 1990. The main
building for Birdlebough High was constructed during the 1950s.
Mr. Bulriss also said that some asbestos was found at nearby
Dillon Middle School, but will be removed from the buildings
before classes resume for the fall semester.
Chuck Morse, who works with Mr. Bulriss at Campus CMG, stated
that, in the event that workers do encounter such a substance,
the company also tests the indoor air quality for potential
contamination.
Mr. Morse said that the asbestos abatement process Birdlebough
High had halted the other required construction work on the
school for nearly two weeks. He stated that the abatement workers
made sure that all of the asbestos had been removed from the
building and that none of the harmful fibers had been released
into the school's air circulation and ventilation systems and
assured students, faculty and workers that the school was now
safe.
The asbestos abatement was part of a US$41 million project that
included putting in new seats at the high school's auditorium,
upgrading the school's media center and adding new school
security devices.
ASBESTOS UPDATE: Aussie Lawmaker to Launch Civil Liability Bill
---------------------------------------------------------------
Attorney-General Cameron Robert Dick, of Queensland, Australia,
will launch the Civil Liability and Other Legislation Amendment
Bill, which increases the maximum caps on damages for personal
injuries from AUD250,000 to AUD294,500, The Age reports.
The changes will also abolish the statutory limitation period for
dust-related disease claims, including asbestosis, mesothelioma
and silicosis.
The amendments also ensure a de facto partner of an injured
person can claim for loss of earnings, Mr. Dick said.
Mr. Dick added, "The removal of the statutory limitation period
for dust-relates diseases will deliver significant benefits to
sufferers, by improving their access to justice and reducing the
costs and stress associated with pursuing a claim.
"This amendment will have retrospective effect to ensure it
captures current cases of dust-related disease originating from
exposure during the 1950s, 1960s and 1970s."
The new caps on general damages will apply to injuries arising
from July 1, July 2010 and will be annually indexed to average
weekly earnings.
ASBESTOS UPDATE: Ward County to Probe Hazard in Emerson Building
----------------------------------------------------------------
The Ward County, N.D., Commissioners, on Oct. 6, 2009, allowed
County Engineer Dana Larsen to study how much asbestos is in the
County-owned Emerson Building, which is an apartment complex,
KCQD-TV News Stories reports.
The study will cost the County between US$800 and US$1,200. The
study will also let the Commissioners know how much it will cost
to remove the asbestos.
Mr. Larson said, "If you determine that, by the way, the floor
tiles have asbestos in it, the ceiling tiles have asbestos in it,
the paint has lead in it or asbestos in it, the roof has - those
are all possible things. If you had every single one of them the
price is going to be in that high end."
The commissioners hope to obtain a special grant in 2010 to help
pay for the asbestos removal.
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
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Copyright 2009. All rights reserved. ISSN 1525-2272.
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