/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/100115.mbx C L A S S A C T I O N R E P O R T E R Friday, January 15, 2010, Vol. 12, No. 10 Headlines ALCON INC: Shareholders Sue in S.D.N.Y. to Slow Novartis Deal AROTECH CORP: Inks $2.9 Mil. Settlement in Securities Litigation BILL ME LATER: N.D. Calif. Lawsuit Challenges Interest Rate Hikes BROOKHAVEN NATIONAL: N.Y. Court Certifies Homeowner Class CHICAGO TRANSIT: Lawsuit Challenges City's Transit Funding CSL LTD: Univ. of Utah Joins Blood Plasma Antitrust Litigation DEL WEBB: 3,520 Homeowner-Class Certified in Ariz. Piping Lawsuit DIRECTV: Accused of Forcing Consumers to Pay for Bogus Accounts EDUCATIONAL RETIREMENT BOARD: NYC & DC Firms Join N.M. Lawsuit FIRST COMMONWEALTH: Pa. Fraud & Unfair Trade Suit Survives FLORIDA POWER: Lawsuit Complains About Cold Snap Service Failures JAVELIN PHARMACEUTICALS: Shareholders Sue to Block Myriad Merger LOS ANGELES COUNTY: Charged with Not Educating Detained Youths LOTO-QUEBEC: Settles Gambling Addiction Class Suit for C$50 Mil. MAINE LOBSTERMEN: State A.G. Investigating Price Fixing Claims METROPOLITAN LIFE: Fee Application Objection Deadline is Feb. 5 NORTHSTAR EDUCATION: Loan Settlement Pact Gets Preliminary Okay PAN AM 73: Crowell & Moring Clients Sue to Cut Legal Fees PPP INC: Papa John's Pizza Sued in N.D. Ill. Over Telemarketing QUAIL INTERNATIONAL: Ga. Court Says Discovery Must End by Mar. 8 ROCKLER COMPANIES: Recalls 2,200 LED Light Kits ROYAL BANK: Hit By C$2.9 Million Korean Class Action Lawsuit SEATTLE BIKE: Recalls 350 2010 Redline Conquest Pro Bicycles STERLING FINANCIAL: Employees File Class-Action Lawsuit THE STATION: $176 Million Settlement in R.I. Nightclub Fire Case TYSON FOODS: Settles Consumer Class Action for $5 Million VERMONT: 33 State Employees Sue for Overtime Pay VISION AIRLINES: Flight Crew Member Class Certified in Nev. Suit Asbestos Litigation ASBESTOS ALERT: Ford Lewis, Skalak Fined $2,917 for DEQ Breaches ASBESTOS UPDATE: No New Developments in Scott Suit Against Chase ASBESTOS UPDATE: Discovery Ongoing in Jansen Case v. Chase Corp. ASBESTOS UPDATE: 28 New Cases Filed in Madison Co. on Dec. 14-18 ASBESTOS UPDATE: Corvallis Pair, Firm Penalized for DEQ Breaches ASBESTOS UPDATE: 10 Actions Filed in Madison Co. From Dec. 21-25 ASBESTOS UPDATE: Bridgford Shopfitter's Death Linked to Exposure ASBESTOS UPDATE: Residents Near Batehaven Not at Risk to Hazard ASBESTOS UPDATE: Asbestos Forces Closure of DMNA Armory in N.Y. ASBESTOS UPDATE: Halton Borough OKs Plan to Build 123 New Homes ASBESTOS UPDATE: Kings County OKs New Asbestos Disposal Dumpsite ASBESTOS UPDATE: Renovation at Millom Co-op Site Uncovers Hazard ASBESTOS UPDATE: District Court Denies Gragg's Motion to Remand ASBESTOS UPDATE: Court OKs Hendricks' Remand Bid in DDC Lawsuit ASBESTOS UPDATE: R.I. Court OKs Hopkins' Remand Bid in FW Action ASBESTOS UPDATE: Goddard Case v. 23 Firms Filed Dec. 23 in W.Va. ASBESTOS UPDATE: Chevron Probing Exposure Claims at Gorgon Site ASBESTOS UPDATE: Bendix Plant in Ohio to be Demolished Jan. 2010 ASBESTOS UPDATE: Meriden Local Sentenced for Breaching TSCA Laws ASBESTOS UPDATE: PW Mills Discharged for Asbestos Cleanup Breach ASBESTOS UPDATE: Hazard to be Taken From Pa. Children's Hospital ASBESTOS UPDATE: Hazard to be Removed From Carlson Hall in Wis. ASBESTOS UPDATE: U.K. Insurers' Bid in Compensation Case Junked ASBESTOS UPDATE: R.L. Abatement to Remove Hazard From Courthouse ASBESTOS UPDATE: Cleanup, Facelift at Tex. Capitol Dome Ongoing ASBESTOS UPDATE: Asbestos Found During Market Deeping Renovation ASBESTOS UPDATE: Council Urged to Deal With Asbestos in Scotland ASBESTOS UPDATE: Appeal Court Issues Split Ruling in Link Action ASBESTOS UPDATE: N.Y. Court OKs Board Ruling in Parrelli Action ASBESTOS UPDATE: Conn. Court Affirms Board's Decision in Voronuk ASBESTOS UPDATE: Mass. Contractors Fined $36T for Cleanup Breach ASBESTOS UPDATE: Marks & Spencer, Others Fined for Safety Breach ASBESTOS UPDATE: 3 Firms Penalized for Breaches at Newport Base ASBESTOS UPDATE: Hazard Discovered in Iowa Care Facility Bldgs. ASBESTOS UPDATE: Hazard Removed from Boffa Hospital in Valletta ASBESTOS UPDATE: Hoult's Family Gets Payout for Asbestos Injury ASBESTOS UPDATE: Court Affirms Board Ruling in Mistofsky Action ASBESTOS UPDATE: Appeals Court OKs OneBeacon's Mandate Petition ASBESTOS UPDATE: Appeal Ct. Upholds Summary Judgment in Bourque ASBESTOS UPDATE: Court OKs NSI Summary Judgment in Hogston Claim ********* ALCON INC: Shareholders Sue in S.D.N.Y. to Slow Novartis Deal ------------------------------------------------------------- The Associated Press reports that minority shareholders of eye- care products maker Alcon, Inc., have filed a class-action lawsuit to prevent Swiss pharmaceutical giant Novartis AG from completing a $39 billion takeover of the company. Lawyers for Alcon's minority shareholders, representing 23 percent of the firm, said they have filed a lawsuit in U.S. District Court in New York against Alcon's board of directors, buyer Novartis and majority shareholder Nestle for effectively setting two prices for the acquisition. Novartis made a bid last week to become a leading player in the growing global eye-care market with the announcement that it plans to take over the 77 percent stake in Alcon it did not already own. Novartis said it would buy Nestle SA's 52 percent stake for $28 billion in cash before carrying out a merger with Alcon that would give it control of the whole company. The Basel-based drug maker had already purchased 25 percent of Alcon from Nestle in April 2008 for $11 billion, with the option of buying the food and drinks company's remaining stake at a later date. Minority shareholder lawyers said in a statement released Sunday from New York that their clients were being "squeezed out at an unfair price," with their stock being sold for about $153 per share, or 18 percent less than the $180 per share Novartis agreed for Nestle's remaining stake. Alcon is incorporated in Switzerland but only trades on the New York Stock Exchange. The nature of the statement indicated that the minority shareholders may want to improve the price of the transaction without seeking to block the final deal. Novartis spokesman Eric Althoff said the company wouldn't comment on pending litigation. The drugmaker has argued that the price it is offering Alcon's minority shareholders represents a 12 percent premium on what Novartis considered the unaffected Alcon share price of $137, before rumors of an imminent offer drove up the price of Alcon stock. In Boilermakers Lodge 154 Retirement Plan v. Novartis AG, Alcon, Inc., Nestle S.A., Daniel Vasella, Cary R. Rayment, Kevin Buehler, Werner J. Bauer, Paul Bulcke, Francisco Castaner, James Singh and Hermann Wirz, Case No. 10-cv-00201 (S.D.N.Y.), the plaintiff is represented by: J. Daniel Albert, Esq. Lee D. Rudy, Esq. Marc A. Topaz, Esq. Michael Wagner, Esq. BARROWAY TOPAZ KESSLER MELTZER & CHECK, LLP 280 King of Prussia Road Radnor, PA 19087 Telephone: (610) 667-7706 - and - Mark Lebovitch, Esq. Amy Miller, Esq. Gerald Harlan Silk, Esq. BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP 1285 Avenue of the Americas New York, NY 10019 Telephone: (212) 554-1400 AROTECH CORP: Inks $2.9 Mil. Settlement in Securities Litigation ---------------------------------------------------------------- Arotech Corporation (NASDAQ: ARTX) has reached an agreement with lead plaintiffs to settle the consolidated putative securities class-action lawsuit originally filed in March 2007 in the United States District Court for the Eastern District of Michigan. Under the terms of the proposed settlement, the lawsuit will be dismissed with prejudice, and Arotech and all current and former officers and directors named in the complaint will receive a full and complete release of all claims asserted against them in the litigation, as well as any related claims that could have been asserted. The claims will be settled for $2.9 million. The monetary payment to be made on behalf of Arotech and the individual defendants will be funded entirely from insurance proceeds. As a result, there will be no additional financial contribution by Arotech. The agreement is subject to court approval. As stated in the settlement documents, Arotech denies any liability in connection with the litigation and denies the claims asserted by the lead plaintiffs in the complaint. "The agreement resolves this issue in a way that is in the best interests of our shareholders," said Robert S. Ehrlich, Chairman and CEO of Arotech. "We believe this settlement provides Arotech with certainty on this lawsuit, eliminates the uncertainties and further expense associated with this litigation, and eliminates an unnecessary drain on management time," concluded Mr. Ehrlich. Arotech Corporation is a leading provider of quality defense and security products for the military, law enforcement and homeland security markets. Arotech provides multimedia interactive simulators/trainers, lightweight armoring and advanced zinc-air and lithium batteries and chargers. Arotech operates through three major business divisions: Armor, Training and Simulation, and Batteries and Power Systems. Arotech is incorporated in Delaware, with corporate offices in Ann Arbor, Michigan and research, development and production subsidiaries in Alabama, Michigan and Israel. BILL ME LATER: N.D. Calif. Lawsuit Challenges Interest Rate Hikes ----------------------------------------------------------------- Scott Dance at the Baltimore Business Journal reports that Bill Me Later is facing a class-action lawsuit claiming the online sales processor skirts California consumer protection laws to hike its interest rates. Kyle Sawyer, a Bill Me Later customer in Torrance, Calif., filed the lawsuit Jan. 6 in U.S. District Court for the Northern District of California. The complaint in Sawyer v. Bill Me Later, Inc., and eBay, Inc., Case No. 10-cv-00014 (N.D. Calif.) (White, J.), accuses Timonium-based Bill Me Later, a subsidiary of online auctioneer eBay Inc., of using a middleman to avoid California law prohibiting exorbitant credit penalties and interest rates. The lawsuit seeks refunds of unjust fees and cancellation of loans for Bill Me Later customers in California. It also asks Bill Me Later and eBay to pay damages equal to three times the interest it charged Sawyer and any additional plaintiffs who join the lawsuit. Bill Me Later is an online payment processor that Internet retailers use to boost sales. When making a purchase online, consumers who choose to use Bill Me Later undergo an instant credit check by the company, which it uses to decide whether to approve or deny the sale. If approved, Bill Me Later then foots the bill for the purchase and charges the customer like a credit card company would. The lawsuit argues that Bill Me Later evades consumer protection laws because it isn't a chartered bank or other financial institution. If it were, it would be subject to consumer protection laws limiting interest rates and penalty fees. Instead, CIT Bank is the initial lender when a consumer uses Bill Me Later; CIT then immediately sells the loan to Bill Me Later. But Bill Me Later, not CIT Bank, is responsible for the algorithm that determines whether to OK a purchase, it sets the interest and fee rates, and it's on the hook if a consumer doesn't repay the loan. The lawsuit argues that the setup between CIT and Bill Me Later is a scheme to evade consumer protection law. "To us, that's clearly an empty economic transaction simply being done to avoid consumer protection laws," said Jeff Friedman of Hagens Berman Sobol Shapiro LLP in Seattle, lead attorney for the plaintiffs. "We think a jury's going to see right through what this is." The lawsuit quotes postings to an online message board alleging interest rates ranging from about 40 percent APR to higher than 100 percent APR. Bill Me Later officials declined to be interviewed because they do not comment on pending litigation. The plaintiffs filed the case in California because it likely includes a large segment of Bill Me Later's customers, Friedman said. A case there could have a significant impact on Bill Me Later's business model, and thus, on consumers in other states as well, he said. The Plaintiff is represented by: Jeff D. Friedman, Esq. Shana E. Scarlett, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 715 Hearst Avenue, Suite 202 Berkeley, CA 94710 Telephone: (510) 725-3000 BROOKHAVEN NATIONAL: N.Y. Court Certifies Homeowner Class --------------------------------------------------------- Ridgely Ochs at Newsday reports that a key legal decision has paved the way for up to 1,000 North Shirley, N.Y., homeowners, current and past, to collectively sue Brookhaven National Laboratory for damages due to the release of toxic chemicals from the lab in the mid-1990s. Acting Supreme Court Justice Joseph Farneti, in a decision dated Dec. 23, granted the residents within an area south of the lab the right to sue as a class for property damages. The Associated Press relates that the leaks were first reported in the mid-1990s and included radioactive tritium. The lab now has an ongoing cleanup program. Some homeowners in Upton first sued Brookhaven in 1996 for loss of property values and the cost of hooking up to Suffolk County's public water supply. An attorney for Brookhaven told the AP the lab might appeal. CHICAGO TRANSIT: Lawsuit Challenges City's Transit Funding ---------------------------------------------------------- Jon Hood at ConsumerAffairs.com reports that a class action lawsuit alleges that funding for Chicago-area transit is administered in a manner that blatantly discriminates against minorities. The suit, filed on January 6, claims that Chicago overfunds commuter railroads at the expense of the city's storied "L" subway system. The lawsuit concedes that most of the $1 billion annual transportation budget is spent on the Chicago Transit Authority, which oversees the L and city buses, but says the Authority's sheer number of passengers means that it remains shortchanged. The complaint says that the CTA has received around 87 cents per passenger trip since 2000; in the same amount of time, commuter railroad Metra received $4.42 per trip. According to the suit, the budget gap is the result of longstanding racism; around 70 percent of Metra riders are white, while 60 percent of CTA riders are African American or Hispanic. The suit is being handled by civil-rights firm Howard Ashley Watkins & Weltman and a clinic at the Chicago-Kent College of Law. "It's about peoples' livelihoods," lead plaintiff Manuel Munguia told the Chicago Sun-Times. "It's really about getting the access we deserve, to education, to good jobs, and ultimately, to opportunity and prosperity." The plaintiffs contend that the funding disparity is a result of the decades-old "Council Wars," which pitted black mayor Harold Washington against a group of white politicians in the Chicago City Council and, later, the Illinois General Assembly. The Council Wars, which lasted from 1983 to 1986, saw 29 aldermen vote down all mayoral proposals and appointments. Judy Pardonnet, a Metra spokeswoman, scoffed at the allegations, and said that the rail system "categorically denies any type of racial discrimination." Pardonnet added that "a lot of information stated in the lawsuit [is] not true." The suit drew quick support from several area politicians. Jesse Jackson Jr., a U.S. Congressman widely believed to be interested in City Hall, scolded the state legislature "for ignoring our communities for too long." Mayor Richard Daley took a more cautious tone, agreeing that a funding disparity exists between the two systems but refusing to explicitly call the gap racist. Daley said there has been "a lack of funding for the CTA over many, many years," and that he hoped the suit would draw wider attention to the problem. The plaintiffs will likely have an uphill climb in proving their case. The U.S. Supreme Court has held that merely proving the disparate racial effects of a policy isn't enough; a plaintiff must show that the policy actually makes racially-based distinctions. The CTA is the second-largest transit system in the country, second only to New York's Metropolitan Transit Authority (MTA), which also oversees that city's commuter railroads, bridges, and tunnels. Barring a breakthrough in union negotiations, the CTA will cut rail and bus service by nine and 18 percent, respectively, on February 7. A copy of the 59-page Complaint in Munguia, et al. v. State of Illinois, et al., Case No. 10-cv-00055 (N.D. Ill.), is available at: http://www.courthousenews.com/2010/01/06/Manuel%20Mangia.pdf The Plaintiffs are represented by: Robert C. Howard, Esq. Stewart M. Weltman, Esq. Kathleen Mangold-Spoto, Esq. Rafael A. Vargas, Esq. FUTTERMAN HOWARD ASHLEY WATKINS & WELTMAN, CHTD. 122 S. Michigan Ave., Suite 1850 Chicago, IL 60603 Telephone: (312) 427-3600 - and - Laurie E. Leader, Esq. The Law Offices of Chicago-Kent College of Law Civil Rights/Employment Law Clinic 565 W. Adams St., Suite 600 Chicago, IL 60661-3691 Telephone: (312) 276-9001 CSL LTD: Univ. of Utah Joins Blood Plasma Antitrust Litigation -------------------------------------------------------------- Eli Greenblat, writing for The Sydney Morning Herald, reports that the University of Utah has joined the multimillion-dollar class-action lawsuit against Australian blood plasma group CSL, marking a widening of anti-trust litigation. It is the first educational institution to claim damages from the alleged operation of a plasma cartel. In documents filed at the Illinois Northern District Court, the University of Utah has sought damages of US$10 million against CSL, its key plasma business, CSL Behring, and the company's chief US rival, Baxter International. The university has also named as a defendant the Plasma Protein Therapeutics Association, an advocate for the world's leading plasma collectors and producers. CSL Behring is a member of the association and a number of CSL senior executives sit on its management and director boards. The University of Utah joins a dozen American hospitals that seized on comments made last year by the US Federal Trade Commission (FTC) that CSL and players in the global plasma industry operated a ''tight oligopoly'' that was engaged in market rigging and limiting the supply of life-saving therapies to push up prices. At the time, the FTC was considering CSL's $US3.1 billion takeover bid for Talecris Biotherapeutics. The deal was eventually blocked on competition concerns. The US hospitals, which include Northwest Iowa, St Luke's Methodist, Detroit Medical Centre and Trinity Regional Medical, are seeking more than US$100 million in damages and demanding a trial by jury. The anti-trust allegations have never been tested in court. The civil case is being led by a US law firm which specialises in class-action suits. CSL has consistently claimed the anti-trust accusations are baseless and that it would vigorously defend the civil action. The Class Action Reporter provided coverage about Pemiscot Memorial Hospital v. CSL Limited, et al., Case No. 09-cv-03143 (E.D. Pa.), on Nov. 4, July 30 and July 21, 2009. DEL WEBB: 3,520 Homeowner-Class Certified in Ariz. Piping Lawsuit ----------------------------------------------------------------- Chris Prickett at In&Out Magazine reports that on August 26, 2009, the Honorable Douglas L. Rayes in the Superior Court in Maricopa County, Ariz., certified a class action lawsuit. The suit names Del Webb Coventry Homes Inc. as the defendant and 3,530 Anthem homes as the class of litigants. Mr. Prickett relates that the suit alleges the potential for hot water line leaks due to something known as Thermal-Galvanic Corrosion (TGC), which allegedly occurs when the copper cold and hot water lines are buried too close together without insulation in certain types of soil. Under these conditions, an electrochemical phenomenon causes the cold water line to act as a cathode (negative charge) and the hot water line becomes the anode (positive charge). The cathode remains unchanged while the anode becomes sacrificial and corrodes. Mr. Prickett's report is available at http://is.gd/6c6cH DIRECTV: Accused of Forcing Consumers to Pay for Bogus Accounts --------------------------------------------------------------- Jon Hood at ConsumerAffairs.com reports that DIRECTV is facing its second major class action in as many months, this time alleging that the cable provider charges consumers with fraud alerts on their credit accounts for satellite TV that they never used or requested. Lead plaintiff Brianna Greene says that DIRECTV opened an account using her credit, even though several credit bureaus had told the company that Greene had a fraud alert on her credit account. The company then "used an autodialer and prerecorded voice message to call plaintiff's cell phone three days after it opened the account to ask whether or not the fraud alert was correct," according to the suit. When Greene received the phone call, she pressed "0" several times in an attempt to reach an operator - as instructed by DIRECTV's automated prompts - but was unsuccessful. Once Greene finally reached a human being, she was told that she would have to fill out a form in order to close her new account. After an account is activated, DIRECTV customers have a 15-day "grace period," during which they can cancel at no cost. The suit contends that "it is an unfair practice for DIRECTV to open accounts upon demand, particularly those where its credit check reveal [sic] a fraud alert, and then place the burden of closing the account on victims of fraud." The action is brought on behalf of all consumers who, within the past four years, received an autodial call from DIRECTV, despite having never given the company their phone numbers, and whose cell phones have either an Illinois, Wisconsin, or Indiana area code. Greene says that DIRECTV obtained her phone number from "a skip trace company or some other sort of directory." Washington case Greene's complaint comes less than a month after the Washington state attorney general sued DIRECTV for unconscionable sales practices. In that suit, Rob McKenna says that DIRECTV draws in new consumers with ads for cheap service, only to surprise them with various hidden fees and other "gotchas" in the sales contract. Such gotchas include undisclosed financing requirements, cancellation fees, restrictive rebate terms, and attempts by DIRECTV to extend two-year contracts. "Even if consumers used a magnifying glass, they still wouldn't discover that the 'good deal' they were promised came with potential expensive pitfalls," McKenna said. He added that his office has received more complaints about DIRECTV - 375 in 2009 alone - than about any other company. In fact, legal trouble seems to follow DIRECTV. The company has been named in at least 300 lawsuits over the past five years, a number of which were class actions. And the company isn't especially popular with its customers, either; ConsumerAffairs.com has over 1,400 complaints about the company in its database. Greene's suit, which is being handled by Burke Law Offices LLC, of Chicago, alleges violations of the Telephone Consumer Protection Act, which restricts the use of "robocalls"; of the Truth in Lending Act; and of the Illinois Consumer Fraud Act. The class seeks compensatory and punitive damages, along with attorneys' fees and costs. EDUCATIONAL RETIREMENT BOARD: NYC & DC Firms Join N.M. Lawsuit -------------------------------------------------------------- Trip Jennings at The New Mexico Independent report that law firms in Albuquerque, New York City and Washington, D.C., have joined to file a class-action lawsuit against former New Mexico Investment Officer Gary Bland and members of the Educational Retirement Board, according to the Santa Fe Reporter. Donna J. Hill, a records clerk at New Mexico State University, is the lead plaintiff. Hill is an ERB beneficiary and among approximately 95,000 former educators who lost out when ERB trustees approved bad investments for political reasons, according to the lawsuit, the Reporter explains. The lawsuit appears based partly on Aldus Meyer founder Saul Meyer's admission that he recommended investments to the State Investment Council and ERB that were pushed on him by politically connected individuals here in New Mexico. The class-action lawsuit also mirrors allegations in a lawsuit filed by Frank Foy, a former ERB investment officer, that some ERB members decided to invest public money out of political interests. Jonathan W. Cuneo, a Washington D.C.-based litigator, told the Reporter 's Corey Pein in an interview: "My law firm has spent quite a bit of time looking at the public pension fund situation nationally, and we spent quite a bit of time studying the situation in New Mexico." When it comes to corrupt practices in public investments, "I certainly think New Mexico's not alone," Cuneo says. In addition to Bland, the ERB, its board members and Meyer and Aldus Equity, the suit also has targeted Vanderbilt Financial Trust. The firm won $90 million in public money in an investment deal that later went sour, costing the ERB $40 million and SIC $50 million. FIRST COMMONWEALTH: Pa. Fraud & Unfair Trade Suit Survives ---------------------------------------------------------- A Common Pleas Court Judge ruled that there is enough evidence that First Commonwealth Bank committed fraud and unfair trade practices to allow a Class Action case to move forward (No. G.D. 09-000797 in the Court of Common Pleas of Allegheny County, Pennsylvania). The customer-plaintiff class will be represented by: Frank G. Salpietro, Esq. ROTHMAN GORDON P.C. Third Floor, Grant Building 310 Grant Street Pittsburgh, PA 15219 Telephone: 412-338-1100 Judge R. Stanton Wettick, Jr. rejected attempts by First Commonwealth to dismiss the lawsuit, which were filed earlier this year on behalf of more than 300 First Commonwealth Bank customers. According to allegations in the complaint, these 300 customers were defrauded into believing that, if they opened a particular IRA account back in the 1980s, the accounts would carry a minimum 8% interest rate until retirement. Instead, the Bank now takes the position that the promise was only good for 90 days. It thus attempted to close down those accounts in late 2008, which prompted the lawsuit. "We have received sworn affidavits from dozens of First Commonwealth customers that the Bank, from top executives on down, misled those customers into investing their hard-earned money over the course of more than 20 years under the promise that their retirement nest-egg would grow at a steady rate without worrying about market fluctuations," Mr. Salpietro explains. "Instead, in 2008 the Bank suddenly announced that what the customers were told earlier was untrue, and that the Bank's IRA contracts allowed it to close down the accounts at any time. That's unfair, deceptive, and fraudulent." According to the papers filed, in 1998 First Commonwealth Bank, which was then named National Bank of the Commonwealth, sent each of its IRA customers a letter stating that the 8% guaranteed rate "will continue going forward on deposits presently in the account and on annual additions." The Bank argued to the court that this letter was meaningless, but the Judge disagreed, stating that it would be up to a jury to decide what the letter means. According to Mr. Salpietro, the next step is for the Bank's executives and employees to be questioned under oath about the case. FLORIDA POWER: Lawsuit Complains About Cold Snap Service Failures ----------------------------------------------------------------- On the same day the Florida Public Service Commission is taking up Florida Power & Light Co.'s rate hike request, the South Florida Business Journal reports, a lawsuit has been filed against the state's largest utility, claiming its equipment failed to handle the electrical load during the most recent cold spell. The suit, which seeks class action status, alleges that tens of thousand of homeowners in Broward and Palm Beach counties lost power due to the "systemic failure of FP&L's equipment, including the wholesale failure of transformers, power lines and other equipment across FP&L's power grid in Palm Beach and Broward counties." In a statement, FP&L called the lawsuit "frivolous" and "utterly without merit." FP&L said that, on Monday morning, customer demand reached an all-time high of 24,354 megawatt-hours. This was the third demand record in as many days and far surpassed the all-time summer peak of 22,361 megawatt-hours, set on Aug. 17, 2005, according to the utility. "Through it all, FP&L maintained power to an average of more than 99 percent of our customers while operating at near-maximum capacity," the company said. The suit, which was filed in Palm Beach Circuit Court on behalf of Anthony Stampone, alleges that as many as 25,000 homeowners were left without power in near-freezing conditions for hours or, in some cases, even days. "This is precisely the type of case that lends itself to class action treatment since all affected homeowners are in the same boat," said: Joel A. Kaplan, Esq. KAPLAN & FREEDMAN PA 9410 S.W. 77th Ave. Miami, FL 33156-7903 Telephone: (305) 274-7533 who filed the suit along with: Scott N. Gelfand, Esq. SCOTT N. GELFAND, P.A. 5501 University Drive, Suite 101 Coral Springs, FL 33067 Telephone: 954-255-7900 The suit alleges that FP&L's attempts to deal with the outages were insufficient "Band-Aid approaches." It asks that a judge issue an order requiring that FP&L be required to make sure that such power outages never happen again, to ensure that power is fully restored and that it pay damages for, among other things, "personal property, loss of use of homes, loss of enjoyment of life and inconvenience." FP&L said that, while no system is perfect, it worked around-the- clock to restore service, deploying 1,300 workers to restore power. Out of the 800,000 transformers, the company said it had to replace about 1,300, or 0.2 percent. "Our transformers are designed to meet normal weather conditions in Florida, but even under the record-setting cold weather we experienced, they held up well," the company said. JAVELIN PHARMACEUTICALS: Shareholders Sue to Block Myriad Merger ---------------------------------------------------------------- Craig M. Douglas at the Boston Business Journal reports that Javelin Pharmaceuticals Inc. has been hit by a flurry of class- action lawsuits and pending legal filings linked to its planned $95 million merger with Myriad Pharmaceuticals Inc. Javelin (Nasdaq: JAV), based in Cambridge, Mass., declined to predict whether the suits will result in any financial or operational "outcome," but it did say the allegations "are without merit and (the company) intends to vigorously defend against these actions," according to a Jan. 8 regulatory filing. In December, Javelin said it planned to merge with Utah-based Myriad. The deal is expected to close by March 31. On January 5, 2010, Javelin Pharmaceuticals, Inc., was served with a complaint naming it, certain of its directors, Myriad Pharmaceuticals, Inc. and MPI Merger Sub, Inc. as defendants in a purported class action lawsuit, Schnipper v. Watson, No. 09-5439 (Mass. Super. Ct. filed Dec. 23, 2009). The Complaint alleges various breaches of fiduciary duty in connection with the proposed merger contemplated by the Agreement and Plan of Merger, dated December 18, 2009, among the Company, Myriad Pharmaceuticals, Inc., MPI Merger Sub, Inc. and a stockholder representative. Andrews v. Driscoll, No. 10-0049 (Mass. Super. Ct. filed Jan. 6, 2010), makes substantially similar allegations. Plaintiff Neil Andrews is represented by: Mitchell J. Matorin, Esq. MATORIN LAW OFFICE 200 Highland Avenue, Suite 306 Needham, MA 02494 Telephone: (781) 453-0100 Parrish v. Watson, No. 10-0029 (Mass. Super. Ct. filed Jan. 5, 2010) has been voluntarily dismissed by the plaintiff, and the plaintiff's counsel in that action has informed the Company that the plaintiff intends to re-file the action in the Business Litigation Session of the Massachusetts Superior Court for Suffolk County. LOS ANGELES COUNTY: Charged with Not Educating Detained Youths -------------------------------------------------------------- An alliance of legal groups including the American Civil Liberties Union and the ACLU of Southern California today filed a ground-breaking class-action lawsuit against the Los Angeles County Probation Department and top county education officials for their total failure to provide youth in the county's largest juvenile probation facility with basic and appropriate education. The failure has resulted in children not being adequately prepared to re-enter society and the workforce. The lawsuit, filed in United States District Court in Los Angeles, charges that county personnel -- including administrators and teachers at the Challenger Memorial Youth Center in Lancaster, California -- have in some instances relied on worksheets in lieu of substantive classroom instruction, denied all educational services to children who ask for help and failed to ensure that students participate in the required minimum school day. "The conscience-shocking practices at Challenger are among the most egregious failures to deliver education and rehabilitative services to incarcerated youth ever documented in the nation, turning out juveniles who are functionally illiterate, unable to fill out job applications or medical forms, read menus or newspapers or vote in elections," said Mark Rosenbaum, chief counsel for the ACLU of Southern California. "The lives of these young people matter, yet the county is releasing them in conditions which all but assure their failure to meaningfully reintegrate, having been denied even a semblance of an education for years upon years. This is a system out of control, with no accountability and no concern for the children under its charge." The lawsuit is the result of a months-long investigation by the legal groups and details one recent instance of a young man, incarcerated in county probation camps for most of his high school years, who was awarded a high school diploma despite being unable to read or write. It also alleges that administrators and teachers directed students to leave classrooms to perform tasks such as painting buildings and removing weeds, while billing the state for instructional days as if these students were in class. The Challenger center consists of six camps and a single school that serves about 650 students. It has been the target of a Department of Justice investigation over mistreatment and poor supervision of students, and was cited as having a "broken" school system in a 2009 Los Angeles County Probation Commission report. The lawsuit filed today goes beyond these findings and reveals startling new details about how county agencies and officials have abdicated their core responsibility of providing education to youths forced to attend school at Challenger. "The failure to provide an adequate education to detained youth, many of whom are youth of color, only sets them up for failure and increases the odds that they will remain trapped in the school-to-prison-pipeline," said Catherine Kim, staff attorney with the ACLU Racial Justice Program. "We have a particular responsibility to ensure that our most vulnerable children be rehabilitated and prepared to successfully reintegrate into mainstream society." Named as defendants in the lawsuit are the Los Angeles County Probation Department, the superintendent of the county's Office of Education, the director of that agency's juvenile court schools and Challenger's current principal. Along with the ACLU and the ACLU of Southern California, the lawsuit was filed by the Public Counsel Law Center and the Disability Rights Legal Center. All three of the plaintiffs named in the lawsuit, like many other students at Challenger, were unlawfully removed from class numerous times. Challenger school staff refused to allow these removals to be questioned or appealed, depriving the students of their due process rights as well as the opportunity to learn. "The students at Challenger deserve, and are legally entitled to, an education," said Laura Faer, director of the Children's Rights Project at Public Counsel Law Center. "What they get instead is abuse, retaliation and needless punishment. These actions are the hallmarks of an institution that consigns children to a life in the criminal justice system, which is exactly the opposite of what it's supposed to do. This is the moral equivalent of placing a child in handcuffs and throwing away the key." Among other things, the lawsuit seeks to force the county to provide intensive reading remediation services to current and former students at Challenger who are three or more years behind their chronological grade level in reading ability, and to prevent county officials from excluding students from classrooms without providing them with notice and an opportunity to challenge the basis for their removal. "Put simply, the youth at Challenger are not being given a chance," said Carly Munson, a staff attorney with the Education Advocacy Program at the Disability Rights Legal Center. "It is time to stop these children from being treated like they are throw-away kids. The agencies we have sued today have both a moral and legal obligation to change their practices, and this is their opportunity to do it." A copy of the Complaint filed in Casey A., et al. v. Robles, et al., Case No. 10-cv-00192 (C.D. Calif.) (King, J.), us available at: http://www.aclu.org/files/assets/2010-1-12-CaseyAvRobles_Complaint.pdf LOTO-QUEBEC: Settles Gambling Addiction Class Suit for C$50 Mil. ---------------------------------------------------------------- RecentPoker.com reports that following a problem gambling class action involving 120,000 players and initiated in 2001, Loto- Quebec has agreed to a multi-million Canadian dollar settlement, citing a Canadian Broadcasting Corporation report. The provincial government of Quebec, which owns the lottery, has now agreed to reimburse the costs of addiction treatment between 1994 and 2002 to the plaintiffs. The money is to help gambling addicts who were not previously covered by Quebec health insurance. The province began covering the cost of therapy for problem gamblers in 2002. The plaintiffs originally sought about Cdn$1 billion in damages, but have settled for around Cdn$50 million. Former journalist Nelson Labrie, the first witness called to testify, told the judge he thought video lottery terminals were ridiculous until he couldn't stop playing them. He went on to describe how his addiction had cost him his home and more than $250 000. Legal representative for the plaintiffs Roger Garneau said that his clients had succeeded in proving that VLTs are dangerous, but that experts were not able to prove that playing on video lottery terminals caused people to become addicted to gambling. Not everyone was happy with the result. Agreeing to the settlement was a mistake, said gambling counsellor Sol Boxenbaum, a consultant on the case who felt that the lawsuit could have created a precedent that would have forced Loto-Qu�bec to warn people about the dangers of VLTs. "How did we give up on a point like that?" Mr. Boxenbaum asked. "[There] should have been no question about a settlement unless we get that warning put onto the machines." Plaintiffs who disagree with the settlement will have an opportunity to state their cases when the agreement comes before a final court hearing on March 8 for ratification by a judge. CBC reports that VLTs bring in more than one quarter of the provincial gaming corporation's Cdn$3.8-billion in annual revenues. METROPOLITAN LIFE: Fee Application Objection Deadline is Feb. 5 ---------------------------------------------------------------- As previously reported, on November 5, 2009, MetLife, Inc. and Metropolitan Life Insurance Company agreed, without admitting any liability, to settle two policyholder class actions regarding the demutualization that the company completed in April 2000. The attorneys for the plaintiff classes have applied to the courts for attorneys' fees and litigation expenses, and some of the individual named plaintiffs have applied for incentive awards, to be paid from the previously announced proposed settlement fund. Any objections to applications for attorneys' fees, litigation expenses or incentive awards must be filed no later than February 5, 2010, with both the U.S. District Court Clerk, 225 Cadman Plaza East, Brooklyn, NY 11201, under the caption In re MetLife Demutualization Litigation, Docket No. 00-CV-2258 (JBW), and the New York Supreme Court Clerk, 60 Centre Street, New York, NY 10007, under the caption Fiala v. Metropolitan Life Insurance Company, Index No. 601181/2000 (Justice Kornreich). The federal and state courts will jointly hear argument on all applications for attorneys' fees, expenses and incentive awards in the two class actions at 11:30 a.m. on February 9, 2010, in Courtroom 228 at the New York County Courthouse, 60 Centre Street, New York, NY 10007. Copies of the applications for attorneys' fees, litigation expenses and incentive awards that have been submitted in both cases may be downloaded by registered users of the Public Access to Court Electronic Records (PACER) service from the federal court's electronic filing system at ecf.nyed.uscourts.gov under Docket No. 00-CV-2258 or may be examined in the offices of the clerks of the respective federal and state courts at the addresses listed above. MetLife, Inc. -- http://www.metlife.com/-- is a leading provider of insurance, employee benefits and financial services with operations throughout the United States and the Latin America, Europe and Asia Pacific regions. Through its subsidiaries and affiliates, MetLife, Inc. reaches more than 70 million customers around the world and MetLife is the largest life insurer in the United States (based on life insurance in-force). The MetLife companies offer life insurance, annuities, auto and home insurance, retail banking and other financial services to individuals, as well as group insurance and retirement & savings products and services to corporations and other institutions. MAINE LOBSTERMEN: State A.G. Investigating Price Fixing Claims -------------------------------------------------------------- LawyersAndSettlements.com reports that Maine's Attorney General has launched an investigation into the Pine Tree State's lobster industry, sparking a potential price fixing class action lawsuit from local fishermen. The investigation, which is expected to last several months, stems from a formal written complaint sent to the Attorney General's office from a collection of more than 50 lobstermen residing in Washington County. Local fishermen charge that dealers are colluding to set low dockside prices in an effort to control the market and drive their own profits. According to The Associated Press, dealers regularly discuss the amount that they pay for freshly caught lobster with the current going price of $3 a pound. The same lobsters can retail for anywhere between $8 and $25 a pound. "The office has just begun to investigate and has not made any conclusion or determinations that anything illegal is happening," Kate Simmons, a spokeswoman for the Attorney General's office, tells the AP. NORTHSTAR EDUCATION: Loan Settlement Pact Gets Preliminary Okay --------------------------------------------------------------- On Dec. 21, 2009, the Honorable Donovan W. Frank gave preliminarily approval to a $9.75 million settlement in In re Northstar Education Finance, Inc., Contract Litigation, MDL No. 08-1990 (D. Minn.). The lawsuit was filed in 2008 by a number of persons who obtained or co-signed student loans held by Northstar or a wholly owned subsidiary of Northstar who were eligible for Northstar's T.H.E. Repayment Bonus -- which Northstar suspended on or about February 18, 2008. The lawsuit claims that the T.H.E. Repayment Bonus was a term of the agreement and sued for money damages going backwards for missed payments and for injunctive relief going forward to ensure future payments would be made. Northstar answered and defended its action stating that the T.H.E. Repayment Bonus was never a term of the contract and that at all times Northstar retained the discretion to only pay the bonus if financial conditions allowed. A final hearing is scheduled for April 8, 2010. Additional information about this litigation and the settlement is available at http://www.northstarloansettlement.com/which is hosted by CAC Services Group LLC. The Plaintiff Class is represented by: Robert K. Shelquist, Esq. LOCKRIDGE GRINDAL NAUEN P.L.L.P. 100 Washington Avenue South, Suite 2200 Minneapolis, MN 55401 - and - Adam J. Levitt, Esq. WOLF HALDENSTEIN ADLER FREEMAN & HERZ, LLC 55 West Monroe Street, Suite 1111 Chicago, IL 60603 - and - Charles S. Zimmerman, Esq. ZIMMERMAN REED, PLLP 651 Nicollet Mall, Suite 501 Minneapolis, MN 55402 Northstar is represented by: Todd A. Noteboom, Esq. LEONARD, STREET AND DEINARD 150 South Fifth Street, Suite 2300 Minneapolis, MN 55402 PAN AM 73: Crowell & Moring Clients Sue to Cut Legal Fees --------------------------------------------------------- Marcia Coyle at The National Law Journal reports that two American victims of the 1986 hijacking of Pan Am Flight 73 have sued Washington's Crowell & Moring over its demand that they share their multimillion-dollar award with other Flight 73 victims represented by the law firm. Dave v. Crowell & Moring and Pan Am Flight 73 Liaison Group, Case No. BC429190 (Calif. Super. Ct., Los Angeles Cty.), was filed Jan. 4 in Los Angeles County Superior Court by two sisters, Gargi and Giatri Dave, who, as children, suffered severe injuries in the hijacking at the Karachi, Pakistan airport. Twenty passengers were killed and more than 120 were wounded during the assault. At the core of the suit -- a copy of which is available at http://www.docstoc.com/docs/21403405/Dave-v-Crowell-and-Moring-- is the legitimacy of a retainer agreement and a joint prosecution agreement as well as their effect following the 2008 U.S.-Libya treaty settling terrorism-related legal claims of U.S. citizens for $1.5 billion. President George W. Bush issued an executive order implementing claims settlement. If the law firm is successful in its demand, the sisters will lose approximately 90 percent of awards that could total from $4 million to $12 million, according to their attorney: Kathryn Lee Boyd, Esq. 4582 Calle San Juan Newbury Park, CA 91320 Telephone: 805-405-9133 an international law litigator. The bulk of that money would go to noncitizens who comprise nearly 77 percent of Crowell's 178 hijack clients. The lead lawyer for the Pan Am victims: Stuart H. Newberger, Esq. CROWELL & MORING LLP 1001 Pennsylvania Avenue, N.W. Washington, DC 20004-2595 Telephone: 202-624-2649 said, "We have fought tirelessly for 178 victims of the terror attack on Pan Am 73 who agreed to join together to achieve justice for the crime they suffered. Our effort involved more than 30 Crowell & Moring attorneys spending well over 11,000 hours over the course of five years, and it's still ongoing. We regret that the Dave sisters have a grievance with the process as we near the end, and we are hopeful that we will be able to resolve it swiftly." The Daves signed the Crowell retainer agreement in 2005, authorizing the firm to pursue a lawsuit against Libya. As part of that agreement, every signatory was required also to sign a joint prosecution agreement. The agreement stated that any recovery would be shared on a sliding scale based on the type of injury and without regard to nationality, according to the complaint. A Pan Am Liaison Group was established, consisting of one American and four non-Americans, to deal with litigation counsel, and it was represented by New York's Latham & Watkins. The agreement also provided for a 25 percent contingency fee to Crowell. Crowell did file a lawsuit, but it did not result in a judgment and was dismissed after the treaty settlement. Ms. Boyd alleges in the complaint that the retainer and joint prosecution agreements were the result of the firm's and the Liaison Group's "unlawful professional conduct, nondisclosures, fraudulent omissions, and manipulation of Plaintiffs whom they solicited as clients." For example, she contends the firm and the liaison group did not disclose that the vast majority of the hijack victims were non- U.S. nationals; that nationality would play a pivotal role in a hijack victim's chance of recovery against Libya, or that the chances of a non-U.S. national recovering from a U.S.-negotiated settlement were virtually nil. "There's no mention of the words treaty, diplomacy, or negotiated settlement in these agreements," said Ms. Boyd. "My clients were not told that was a possibility. At that time in history, it was likely these claims would be settled by negotiated diplomacy between the sovereigns, not by the courts, and these lawyers, who are very sophisticated in this area of law, well knew that. They did not notify my clients of the serious conflicts of interests they would have with the non-national clients. That was a serious breach of ethics and invalidates any agreement." Gargi Dave has received $3 million from the Foreign Claims Settlement Commission and may be entitled to an additional $3 million, said Ms. Boyd. Her sister's claim is still being reviewed but she is entitled to a minimum of $500,000 and may receive an additional injury award of up to $6 million. Ms. Boyd said she believes about $30 million in treaty awards to American hijack clients have been turned over to the Crowell trust fund, which is being managed by Latham. She also alleges in the complaint that the law firms have pressured American plaintiffs to turn over their awards or face litigation. Latham is not a named defendant in the lawsuit. Ms. Boyd said she hopes to determine that firm's full role in discovery. Latham declined to comment. "It's important to get the rights and obligations here judicially determined so people know where they stand," said Ms. Boyd, an international human rights litigator. "It's hubris that Crowell didn't seek a judicial determination before taking this money and sharing it with non-nationals knowing that the executive order said non-nationals are not covered." PPP INC: Papa John's Pizza Sued in N.D. Ill. Over Telemarketing --------------------------------------------------------------- Jennifer Fernicola at Chicago Now reports that a class action complaint has been filed against a telephone advertising company and Papa John's Pizza for making prerecorded advertising calls to cell phones. The complaint states that Fidelity Communications and Papa Johns violated the Telephone Consumer Protection Act when it called plaintiff and others on their cell phones using an automated telephone dialing system and/or prerecorded or automatic voice messages. According to the complaint, on July 28, 2009, the plaintiff received a voice message that began "[Unintelligible] at Papa John's calling. As one of our valued customers, I would like to offer you our VIP special." The defendants have a telephone system where the system dials telephone numbers without human intervention, the complaint states. The plaintiff wants, among other things, to prohibit the defendants from continuing to do this and $1,500 per willful violation. A copy of the Complaint in Martin v. PPP, Inc., and Fidelity Communications Corporation, Case No. 10-cv-00140 (N.D. Ill.), is available at http://is.gd/6cG6o The Plaintiff is represented by: Alexander H. Burke, Esq. BURKE LAW OFFICES, LLC 155 N. Michigan Ave., Suite 9020 Chicago, IL 60601 Telephone: 312-729-5288 QUAIL INTERNATIONAL: Ga. Court Says Discovery Must End by Mar. 8 ---------------------------------------------------------------- Daniel v. Quail International, Inc., Case No. 07-CV-00053 (M.D. Georgia) (Land, J.), is a conditionally certified collective action under the Fair Labor Standards Act. Before class action notices were sent to potential class members, there were two named Plaintiffs and one opt-in Plaintiff. Class action notices were sent to potential class members on September 17, 2009. Based on the Court's count, during the opt-in period, 36 individuals consented to join this action, so the total number of Plaintiffs in this action is 39. The opt-in period ended on November 16, 2009, and Defendant informed Plaintiffs on that date that it intended to seek individualized discovery from all of the opt-in Plaintiffs who had not yet been deposed. Plaintiffs oppose that plan and on November 18, 2009 filed the presently pending Motion for Representative Discovery (Doc. 50), asking that the Court limit individualized discovery to six Plaintiffs. As discussed below, Judge Lund denied that motion, explaining that: Plaintiffs argue that it would be unmanageable and unreasonable to permit discovery from all of the Plaintiffs. Plaintiffs correctly assert that representative discovery, or "sampling," is a permissible procedure for determining damages in a collective action if the class is very large. See, e.g., Long v. Trans World Airlines, Inc., 761 F. Supp. 1320, 1323 (N.D. Ill. 1991) (permitting sampling in class action brought by more than 3000 employees); see also Smith v. Lowe's Home Ctrs., 236 F.R.D. 354, 358 (S.D. Ohio 2006) (approving representative discovery in case involving more than 1500 opt-in plaintiffs). However, in an FLSA collective action where the plaintiff class is small and the discovery is related to the question of whether the individual plaintiffs are similarly situated within the meaning of the FLSA, individualized discovery is often permitted. E.g., Ingersoll v. Royal & Sunalliance USA, Inc., No. C05-1774-MAT, 2006 WL 2091097, at *2 (W.D. Wash. July 25, 2006) (approving individualized discovery of 34 opt-in plaintiffs relevant to defendant's anticipated motion to decertify); see Renfro v. Spartan Computer Servs., Inc., Civil Action No. 06-2284-KHV, 2008 WL 821950, at * (Mar. 26, 2008) (ruling that defendants could depose 27 FLSA opt- in plaintiffs); see also Krueger v. N.Y. Tel. Co., 163 F.R.D. 446, 451 (permitting individualized discovery on damages as to all 162 class members);Coldiron v. Pizza Hut, Inc., No. CV03- 05865TJHMCX, 2004 WL 2601180, at *2 (C.D. Cal. Oct. 25, 2004) (granting motion to compel individualized discovery of 306 opt-in plaintiffs). Plaintiffs ask the Court to limit individualized discovery in this action to approximately 15% of the class. However, they point to nothing in the record to demonstrate that this number is statistically significant. More importantly, Plaintiffs have not shown that individualized discovery of the Plaintiff class would raise sufficient efficiency concerns to justify representative discovery. The class is small-only 39 members. The Plaintiffs were all on notice that if they chose to opt in to this action they "may be required to participate in depositions, provide written responses, and/or testify in Court in support of [their] claims." (Notice of Class Action, Aug. 26, 2009.) Defendant intends to file a motion to decertify the class, and it seeks discovery on the question whether the opt-in Plaintiffs are similarly situated. For all of these reasons, the Court concludes that individualized discovery of the Plaintiff class members is permissible in this action. Plaintiffs' Motion for Representative Discovery (Doc. 50) is therefore denied. Discovery in this case is set to close on January 15, 2010. Because neither party sought expedited consideration of Plaintiffs' motion for representative discovery, discovery was stalled while the briefing on Plaintiffs' motion swallowed most of the 60-day discovery period. Therefore, Defendant seeks an extension of the discovery period. The extension is granted, but no further extensions will be permitted. Discovery shall expire on March 8, 2010. Defendant's motion to decertify the conditional collective action shall be filed on or before April 7, 2010. Plaintiffs' response brief shall be filed on or before April 27, 2010, and Defendant's reply brief shall be filed on or before May 7, 2010. The Court emphasizes that no further extensions will be granted. If either party files a motion that may impact the discovery deadline, the party must seek expedited consideration of that motion, and the parties shall continue with discovery to the maximum extent possible while the motion is pending. ROCKLER COMPANIES: Recalls 2,200 LED Light Kits ----------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with Rockler Companies Inc., of Medina, Minn., announced a voluntary recall of about 2,200 LED light kits. Consumers should stop using recalled products immediately unless otherwise instructed. Defective wiring in the light kits can cause the battery pack to overheat and explode, posing a risk of burn and fire hazards to consumers. No incidents or injuries have been reported. This recall involves Rockler LED lights with either an interchangeable spotlight head or a magnifying head. Models included in the recall have stock numbers 26429 (spotlight or 27017 (magnifying). Stock numbers are printed on the light's packaging. Pictures of the recalled product are available at http://www.cpsc.gov/cpscpub/prerel/prhtml10/10108.html The recalled LED light kits were manufactured in China and sold at Rockler Woodworking and Hardware and other specialty stores nationwide from March 2009 through October 2009 for about $60. Consumers should immediately stop using the recalled LED light kits and call Rockler Companies to receive a free repair kit and installation instructions. For additional information, contact Rockler Companies at (800) 260-9663 anytime. Consumers can also write to Rockler Woodworking and Hardware at 4365 Willow Drive, Medina, MN 55340. ROYAL BANK: Hit By C$2.9 Million Korean Class Action Lawsuit ------------------------------------------------------------ Caroline Van Hasselt, writing for Dow Jones Newswires, reports from Toronto that Royal Bank of Canada says it has not yet received any formal notification of a C$2.9 million Korean class- action lawsuit related to investor losses incurred in equity- linked derivative products, a bank spokeswoman said. The lawsuit was filed last week in the Seoul Central District Court on behalf of two investors, according to Asia Pulse, citing the claimants' lawyer: Seung Chul Rha, Esq. Hannuri Law Office Telephone: 02-537-9500 E-mail: rsc413@hannurilaw.co.kr The investors are seeking 3.2 billion won (C$2.9 million) in compensation after losing 25.4% of their investment in equity- linked securities sold by local brokerage Hanwha Securities Co., and issued and managed by the Toronto-based bank. The complaint was based on the allegation the lender's sell-off of stock led to massive losses on the investment product that would have otherwise earned profits, the media report said. "We have conducted a full review," said Beverley Weber, a Royal Bank of Canada spokeswoman. "We are absolutely confident that we acted in accordance with all the applicable laws and practices." The product, called Smart ELS 10, was linked to shares of Korean conglomerate SK Holdings Co. and structured to yield a 22% return, if upon maturity one year later, SK shares closed at 75% of the original price, or higher, on the day the product was issued. Local brokers sold the product to 438 investors in 2008. When it matured in April 2009, the product returned to investors a loss of 25.4%. "It's a common product, and we work with local brokers to sell products to retail clients," says Ms. Weber. "These are high risk products. High risk, high gain." Korea's Financial Supervisory Service found RBC guilty after investigating allegations the lender's massive selling of SK shares on the maturity date affected the stock price, according to Asia Pulse. The Korea Exchange in May was examining some 700 ELS products that had recently matured. RBC does not have a physical presence in Korea. The Hannuri Law Office did not respond to an e-mail message from Dow Jones. The Financial Supervisory Service could not be immediately reached for comment. The case is the first class-action suit brought against a foreign financial institution, reported Asia Pulse. SEATTLE BIKE: Recalls 350 2010 Redline Conquest Pro Bicycles ------------------------------------------------------------ The U.S. Consumer Product Safety Commission, in cooperation with Seattle Bike Supply, of Kent, Wash., announced a voluntary recall of about 350 2010 Redline Conquest Pro Bicycles and Framesets. Consumers should stop using recalled products immediately unless otherwise instructed. The bicycle's fork legs can separate from the fork crown and cause the rider to lose control, posing a risk of serious injury if the rider falls. The firm is aware of three reports of forks separating with minor injuries reported in one of the incidents. This recall involves all 2010 Redline Conquest Pro Cyclocross bicycles and framesets. The bicycles and framesets were sold in pearl white/blue and have aluminum frames with carbon fiber forks and aluminum steerer tubes. Pictures of the recalled product are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml10/10107.html The recalled bicycles were manufactured in Taiwan and sold at bicycle specialty stores nationwide between August 2009 and November 2009 for about $1,900 for the bicycle and about $550 for the frameset. Consumers should immediately stop using the recalled bicycles and framesets and contact their local Redline bicycle dealer to receive a free inspection and fork replacement. For additional information contact Redline Bicycles at (800) 283-2453 or visit the firm's Web site at http://www.Redlinebicycles.com/ STERLING FINANCIAL: Employees File Class-Action Lawsuit ------------------------------------------------------- Hagens Berman Sobol and Shapiro on Jan. 11 filed a class-action lawsuit on behalf of employees of one of Washington's largest commercial banks, Spokane-based Sterling Savings Bank, in US District Court claiming that the bank and its holding company, Sterling Financial Corporation, failed to protect employees' investment in company stock through the company's 401(k) Plan. The lawsuit, filed by HBSS, a Seattle-based class-action law firm experienced in ERISA and securities litigation, and Pennsylvania- based Brodsky and Smith, LLC, notes that Sterling's stock price has imploded as the result of ill-advised commercial real estate, construction and land loans, improper accounting and inadequate capitalization. Sterling and other defendants failed to properly manage pension funds by maintaining a large investment in Company Stock long after the stock became an imprudent investment -- a violation of the federal Employment Retirement Income Security Act (ERISA), the complaint states. "No qualified financial advisor would encourage rank-and-file employees to invest more than a modest amount of retirement savings in company stock, but actually advise against it," said HBSS managing partner Steve Berman. "Employees often interpret a match in company stock as an endorsement of the company and its stock. In this case, Sterling matched the stock employees invested in the pension plan with worthless Company Stock, further putting the pension fund at risk." Attorneys representing Oregon plaintiff Corey Deter estimate over 2,500 employees in Washington, Oregon, Idaho, Montana and California are affected by the actions listed in the complaint. Berman said the bank failed to disclose the company's massive financial problems caused by inadequately secured loans in commercial real estate, construction and land loans, and masked by allegedly improper accounting. The lawsuit charges that the company deliberately misled employees and shareholders on the value of the stock and failed to secure adequate reserves against its credit portfolio. Employees in the class include those who owned stock in the Sterling 401(k) from July 23, 2008, to the present. The plan heavily invested in Sterling stock despite a clear decline in performance. As of Dec. 31, 2007, the plan held approximately $16 million in Sterling common stock. A year later, Dec. 31, 2008, the plan held approximately $13 million in Sterling common stock, representing in excess of 20 percent of the assets of the pension plan. In the wake of its diving stock performance, Sterling failed to adequately and timely record losses for its impaired loans and secure assets to safeguard against its defaulting credit portfolio. As a result, Sterling stock traded at artificially inflated prices during the class period, reaching a high of $14.72 per share on Oct. 1, 2008, the lawsuit states. As of last Friday, the beleaguered stock closed at 70 cents per share. Sterling Bank is one of the largest commercial banks headquartered in Washington. It is one of the largest regional community banks in the U.S. that offers mortgage lending, construction financing and investment products to individuals, small business and commercial organizations and corporations. Golf Savings Bank, a branch of Sterling, focuses on the sale of single-family residential mortgage loans. The lawsuit charges that Sterling deliberately misled employees and investors and mismanaged its pension plan on a number of fronts, noting specifically that Sterling: -- Failed to account for and disclose Sterling's commercial real estate, construction and land development loans and failed to reflect impairment in the loans; -- Failed to adequately reserve for loan losses, such that Tier 1 capital was presented in violation of banking regulations and Generally Accepted Accounting Principles (GAAP). As a result, Sterling would be forced to consent to a cease and desist order from the Federal Deposit Insurance Corporation (FDIC) directing it to raise $300 million in capital; -- Failed to adequately account for its goodwill or its deferred tax assets such that its financial statements were presented in violation of GAAP. Prospective class members who want to learn more about legal requirements and membership in the class should contact Nick Styant-Browne at 1-206-268-9373 or STSA@hbsslaw.com. About Hagens Berman Sobol Shapiro Hagens Berman Sobol Shapiro (HBSS) is a law firm with offices in Seattle, Chicago, Cambridge, Los Angeles, Phoenix and San Francisco. Named to the 2006 and 2009 Plaintiffs' Hot List by National Law Journal, HBSS has developed a nationally recognized practice in class-action litigation. The firm has co-lead counsel in litigation to recover losses from Enron employees' retirement funds and represented Washington and 12 other states in lawsuits against the tobacco industry that resulted in the largest settlement in the history of litigation. The firm also served as counsel in several other high-profile cases, including the Washington Public Power Supply litigation, which resulted in settlements of nearly $1 billion. The firm also served as co- lead counsel in a VISA/Mastercard litigation, which resulted in excess of a $3 billion settlement. About Sterling Financial Corporation Sterling Financial Corporation of Spokane, Wash., -- http://www.sterlingfinancialcorporation-spokane.com/-- is the bank holding company for Sterling Savings Bank, a commercial bank, and Golf Savings Bank, a savings bank focused on single- family mortgage originations. Both banks are state chartered and federally insured. Sterling offers banking products and services, mortgage lending, construction financing and investment products to individuals, small businesses, commercial organizations and corporations. As of Sept. 30, 2009, Sterling Financial Corporation had assets of $11.87 billion and operated 178 depository branches throughout Washington, Oregon, Idaho, Montana and California. THE STATION: $176 Million Settlement in R.I. Nightclub Fire Case ---------------------------------------------------------------- Eric Tucker at The Associated Press reports that a federal judge overseeing lawsuits stemming from a Rhode Island nightclub fire that killed 100 people endorsed a $176 million settlement Thursday, bringing survivors and victims' relatives closer to receiving money and moving years of legal wrangling toward a final resolution. U.S. District Judge Ronald Lagueux also authorized the creation of a trust fund to hold the settlement money for the more than 300 people affected by the 2003 fire at The Station nightclub. "I think this is a red-letter day for The Station fire case," Judge Lagueux said. Survivors who were most severely injured stand to receive the most money, with multimillion-dollar shares in some cases. The dozens of children whose parents were killed or injured will also be compensated. There was no date discussed for when victims might start to receive their money. The Feb. 20, 2003, fire at the club in West Warwick began when a pyrotechnics display used at the start of a concert by the 1980s rock band Great White set ablaze soundproofing foam around the stage. Besides the fatalities, the blaze caused a panicked rush toward the front exit and more than 200 people were injured. The dozens of people and companies sued after the fire -- including foam manufacturers, the club's owners, Anheuser-Busch, Clear Channel Broadcasting and the town of West Warwick -- agreed to settle for a combined $176 million rather than risk going to trial. Separate criminal charges from the fire were resolved in 2006. Club owners Jeffrey and Michael Derderian pleaded no contest to 100 counts of involuntary manslaughter and former Great White tour manager Daniel Biechele pleaded guilty to the same charges. Messrs. Derderian and Biechele were sent to prison. Both have since been released. "We'd like it to be over because it's just a constant reminder of everything that's happened," said Claire Bruyere, whose daughter, Bonnie Hamelin, died in the blaze. The Class Action Reporter's latest report about the lawsuits filed in the U.S. District Court for the District of Rhode Island appeared on Jan. 25, 2005. TYSON FOODS: Settles Consumer Class Action for $5 Million --------------------------------------------------------- Brendan Kearney, a Legal Affairs writer for the Daily Record, reports that meat processing giant Tyson Foods Inc. has settled a consumer class action brought over its controversial chicken "Raised Without Antibiotics" advertising campaign. Under the agreement filed Tuesday night in U.S. District Court in Baltimore, individual consumers will receive as much as $50 each. The cost to Tyson is $5 million, with $600,000 set aside to cover administrative costs. "Therefore, approximately $4.4 million will be made available for distribution to class members - without the class having to incur the considerable delay and risk of seeking relief through continued litigation and trial, as well as any subsequent appeals," the plaintiffs' attorneys, led by James P. Ulwick of Kramon & Graham P.A. in Baltimore, wrote in their motion for preliminary approval of the settlement. The $4.4 million includes up to $20,000 in incentive awards to the four named plaintiffs and four more class members who were deposed in the case last year. Attorneys for the class also are expected to share a payment of up to $3 million, which is separate from the class members' recovery. Judge Richard D. Bennett will conduct a preliminary fairness hearing on Friday morning. A spokesman for Tyson said the company hopes the judge will approve the settlement. "Our Raised Without Antibiotics chicken initiative, which we started in 2007, was suspended in 2008 due to labeling challenges," the spokesman, Gary Mickelson, said in an e-mailed statement this morning. "While we believe our company acted appropriately, we also believe it makes sense for us to resolve this legal matter and move on." Lead attorneys for the class could not immediately be reached this morning. Tyson's chickens are given feed laced with ionophores, which the U.S. Department of Agriculture classifies as antibiotics. Ionophores fight a widespread intestinal disease in poultry but, according to Tyson, do not affect human resistance to antibiotics. Class members, estimated to be at least in the tens of thousands, are people who bought Tyson chicken - fresh or frozen, whole or breaded pieces, Cornish hens or deli - between specified dates in 2007 and 2009. If the total dollar amount of valid claims, costs and incentive awards is less than $5 million, Tyson must contribute products to food banks to make up the difference. (In May, Tyson agreed to donate 1.7 million pounds of chicken to food banks in Illinois to settle a long-running lawsuit there over allegations that Tyson had artificially inflated the weight of its birds through cold- water immersion.) To get the word out, the parties have proposed to notify the class by ads in Parade and People magazines and on Weather.com, CNN.com, and Parenting.com, as well as more than 400 local news and entertainment Web sites nationwide. Springdale, Ark.-based Tyson, a Fortune 500 company, claims on its Web site to be the world's biggest processor and marketer of chicken, beef and pork. Competitors Sued First The collection of consumer suits were spurred by a successful false advertising suit brought by two of Tyson's competitors, including Perdue Farms of Salisbury, in January 2008. They were consolidated before Judge Bennett in October 2008. Perdue and Mississippi-based Sanderson Farms accused Tyson of unfair competition for making a false "implied superiority claim." Perdue and Sanderson, like Tyson, use ionophores in their chicken feed. Tyson's ads, which appeared everywhere from billboards to store shelves beginning in June 2007, caused consumers to favor its poultry, the companies alleged. A Sanderson marketing manager estimated a loss of $4 million, while Perdue said it lost $10 million in contracts with retail chains across the country. In April 2008, Bennett ordered Tyson to remove the claims from its advertising while the suit was pending. By June 2008, Tyson had settled that dispute - only to be hit by the consumer claims in several states. Three Tiers The eight consumer suits, mostly in Arkansas and Maryland, also were consolidated before Bennett. "Consumers reacted and relied on this campaign in buying chicken," paying a premium for an antibiotic-free product, the one of the class actions claimed. The wave of suits accused Tyson of consumer fraud, breach of express warranty and unjust enrichment and sought money back for consumers who bought the "raised without antibiotics" chickens. After voluminous document exchange - 450,000 pages of internal Tyson documents as well as USDA documents - and 15 depositions through last summer and fall, the parties announced they had reached a settlement in a letter to the judge dated Dec. 8. "A settlement in principle was reached only after approximately four months of give-and-take, during which the parties had to iron out differences over virtually every material issue," the motion for preliminary approval says. The class members are divided into three tiers. Tier 1 consists of those who have receipts, and they will receive up to $50 cash based on valid proofs of purchase of the covered Tyson products. Tier 2 consists of people who don't have documentation but who will claim, under the penalty of perjury, that they bought covered Tyson products. They will receive up to $10 cash per household. Tier 3 class members must testify that they bought a Tyson "Raised Without Antibiotics" chicken at least once. They will receive a $5 Tyson coupon. VERMONT: 33 State Employees Sue for Overtime Pay ------------------------------------------------ The Associated Press reports that 33 Vermont government employees are suing the state for not paying them overtime they think they're owed. The employees earn $20 to $31 an hour and are in the judiciary, supervisory, non-management and corrections bargaining units of the Vermont State Employees Association. They claim they are owed time and half instead of straight overtime. The workers hope the court will make it a class-action lawsuit, possibly allowing several hundred more employees to join in. The suit doesn't ask for specific damages but says federal law would require the state to pay double damages and attorneys' fees. Vermont's human resources commissioner declined to comment, saying she hadn't seen the lawsuit, yet. WCAX.com reports that the class action lawsuit was filed in Washington County. VISION AIRLINES: Flight Crew Member Class Certified in Nev. Suit ---------------------------------------------------------------- Steve Green at the Las Vegas Sun reports that class-action status has been granted in a lawsuit claiming crew members of a North Las Vegas charter airline didn't receive extra hazard pay for flying dangerous missions into Iraq and Afghanistan. U.S. District Judge Roger Hunt last week approved the notice of the class-action in Hester v. Vision Airlines, Inc., Case No. 09-cv-00117 (D. Nev.). That notice will be published and to be sent to Vision Airlines Inc. employees who were crew members on flights to or from Iraq or Afghanistan from May 1, 2005, to the present. The notice summarizes the allegations in the case, notes Vision has denied the allegations and says affected current and former employees need to do nothing, unless they want to opt out of the lawsuit. Class-action certification represents a victory for former Vision pilot Gerald Hester and other plaintiffs, who allege Vision as a U.S. government contractor collected $21 million in hazard pay on behalf of at least 300 employees who operated the "Air Bridge Program" into war zones -- but didn't turn over all of the funds to the employees and kept some of the extra money for itself. The suit asserted the hazard pay due to charter crews flying to and from Iraq is $2,500 for each captain, first officer and international relief officer for each take-off and landing. Other crew members such as flight attendants and mechanics are to receive $1,500 each for each take-off and landing, the lawsuit says. The Air Bridge is a system in which military and civilian government personnel and contractors are flown in and out of the war zones. Vision had fought class-action certification, arguing crew members worked under different contracts depending on their job classification as pilots, flight attendants, mechanics, ground crew and administrative personnel. Vision said some of these workers didn't qualify for hazard pay. But Hunt found that Mr. Hester's attorneys showed the plaintiffs are pursing common questions of law or facts. The judge also ruled attorneys for Mr. Hester satisfied the class-action requirements by showing at least 100 people served as crew members on the flights, the crew members live in 23 states and that it would be impractical to have that many people in so many locations serve as individual plaintiffs in lawsuits. "The interests of judicial economy strongly favor certifying this action because it would be both inefficient and expensive to litigate multiple cases involving the same set of facts in many different jurisdictions," Judge Hunt wrote in his ruling. The parties in the case are now proceeding with fact-finding discovery and the lawsuit is likely to continue for some time. Vision may have opportunities to seek dismissal of the case on motions for summary judgment with no trial; or the case could proceed toward a trial or settlement. Vision, in the meantime, is pursuing in federal court a counterclaim against Mr. Hester. The counterclaim alleges he violated his employment and confidentiality agreements by contacting air bridge companies Vision contracts with -- Capital Aviation Inc., Computer Sciences Corp. and McNeil Technologies Inc. -- and disclosing Vision trade secrets in an attempt to convince those firms to enter into new contracts with Mr. Hester or others associated with Mr. Hester and to terminate their deals with Vision. Vision also claims Mr. Hester violated his nondisclosure agreement by revealing that "to reduce the likelihood of rocket and missile attacks, aircraft arriving and departing Baghdad International Airport must observe blackout procedures which require all exterior and interior aircraft lighting (except for cockpit instruments) to be turned off." Vision says Mr. Hester also violated the agreement by revealing "aircraft arriving and departing Baghdad must utilize a dangerous corkscrew procedure, which requires the airplane to fly in a spiral directly above the airport in order to stay within the areas most heavily fortified by the United States military." Those details were alleged in the January 2009 lawsuit filed on behalf of Mr. Hester, of Colleyville, Texas. Attorneys for Mr. Hester have denied he violated his employment and confidentiality agreements, arguing details about the air bridge program, blackout flying conditions and spiral-type landings are public record, having been reported in publications including Army Times. And Mr. Hester's attorneys noted in court papers that then-Sen. Hillary Clinton told Fox News in January 2007: "when you fly into a war zone like Baghdad, and I've done it numerous times now, there and elsewhere, you know, the C-130 does a kind of corkscrew landing." Another lawsuit filed by Vision alleging conspiracy and racketeering is pending in Clark County District Court against former employees including former pilot Juan Salicrup Mayoral, former flight attendant Ronald Borz, former accounting assistant Gwen Carson and former pilot Daniel Carson. Also sued were Mayoral's wife, Heleni Salicrup, and two companies Vision alleged the two control: Salko Enterprises Inc. and Salko International. Vision charged the defendants have tried to undermine its business, misappropriated trade secrets and violated non-compete and non-disclosure agreements. The defendants are accused of releasing confidential information and trade secrets to attempt to convince Vision customers and companies it does business with to enter into new contracts with the defendants and terminate their contracts with Vision. The defendants in that suit have denied the allegations and are seeking its dismissal. Mr. Hester and similarly situated Plaintiffs are represented by: Brett von Borke, Esq. David M. Buckner, Esq. KOZYAK TROPIN & THROCKMORTON, P.A. 2525 Ponce de Leon Blvd. Coral Gables, FL 33134 Telephone: 305-372-1800 - and - Ross C. Goodman, Esq. GOODMAN LAW GROUP 520 S. Fourth Street, 2nd Floor Las Vegas, NV 89101 Telephone: 702-384-5563 Vision Airlines, Inc., is represented by: Edward C. Konieczny, Esq. Erin Payne, Esq. SMITH, GAMBRELL & RUSSELL 1230 Peachtree Street, NE Atlanta, GA 30309 Telephone: 404-815-3657 - and - Harold P Gewerter, Esq. HAROLD P. GEWERTER, ESQ., CHTD. 2705 Airport Drive North Las Vegas, NV 89032 Telephone: 702-382-1714 Asbestos Litigation ASBESTOS ALERT: Ford Lewis, Skalak Fined $2,917 for DEQ Breaches ---------------------------------------------------------------- The Oregon Department of Environmental Quality has penalized the Ford Lewis Franklin Trust & Skalak W.H. Profit Sharing Plan, owner of a commercial facility in Lincoln City, Ore., about US$2,917 for allowing unlicensed persons to perform an asbestos project at the facility in May 2009, according to a DEQ press release dated Jan. 12, 2010. According to DEQ, the Ford Lewis Franklin Trust allowed its agent, William Skalak, to remove about 40 square feet of sheet vinyl flooring during the renovation of the facility at 5056 SE Highway 101 in Lincoln City. Mr. Skalak is not certified or licensed by DEQ to perform asbestos abatement projects. Removal of the asbestos-containing flooring crushed and pulverized it, likely causing the release of asbestos fibers into the atmosphere. In its investigation of the project, DEQ noted that the asbestos waste material was not properly packaged and labeled. Most of the asbestos waste was placed in garbage bags and stored outside of the facility for an unknown period of time, ultimately being disposed of at Brown's Island Landfill. DEQ did not issue a penalty for the open accumulation of asbestos-containing waste material. Ford Lewis Franklin Trust & Skalak W.H. Profit Skalak paid the penalty in full in December 2009. ASBESTOS UPDATE: No New Developments in Scott Suit Against Chase ---------------------------------------------------------------- Chase Corporation says that, as of November 2009, there have been no new developments in an asbestos case filed on behalf of James T. Scott, according to the Company's quarterly report filed with the U.S. Securities and Exchange Commission on Jan. 11, 2010. The Scott lawsuit has been inactive with respect to the Company. The Company is one of over 100 defendants in the personal injury lawsuit, pending in Ohio, which alleges personal injury from exposure to asbestos contained in certain Chase products. The case is captioned Marie Lou Scott, Executrix of the Estate of James T. Scott v. A-Best Products, et al., No. 312901 in the Court of Common Pleas for Cuyahoga County, Ohio. The plaintiff in the case issued discovery requests to the Company in August 2005, to which the Company timely responded in September 2005. The trial had initially been scheduled to begin on April 30, 2007. However, that date had been postponed and no new trial date has been set. Headquartered in Bridgewater, Mass., Chase Corporation makes tapes and protective coatings used by the electronic, public utility, and oil industries. The Company also provides electronics manufacturing services (EMS) for printed circuit boards and other products. ASBESTOS UPDATE: Discovery Ongoing in Jansen Case v. Chase Corp. ---------------------------------------------------------------- Chase Corporation says that parties in the asbestos case styled Lois Jansen, Individually and as Special Administrator of the Estate of Thomas Jansen v. Beazer East, Inc., et al. (No: 09-CV- 6248) are currently engaged in discovery. The Company was named as one of the defendants in the lawsuit filed on June 25, 2009 in the Milwaukee County (Wisconsin) Circuit Court. The plaintiff alleges that her husband suffered and died from malignant mesothelioma resulting from exposure to asbestos in his workplace. The plaintiff has sued seven alleged manufacturers or distributors of asbestos-containing products, including Royston Laboratories (formerly an independent company and now a division of the Company). The Company has filed an answer to the claim denying the material allegations in the complaint. Headquartered in Bridgewater, Mass., Chase Corporation makes tapes and protective coatings used by the electronic, public utility, and oil industries. The Company also provides electronics manufacturing services (EMS) for printed circuit boards and other products. ASBESTOS UPDATE: 28 New Cases Filed in Madison Co. on Dec. 14-18 ---------------------------------------------------------------- During the week of Dec. 14, 2009 through Dec. 18, 2009, a total of 28 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-1370) Theresa Mann Adams of Georgia claims her deceased father, Samuel Mann, developed mesothelioma after his work as a mechanic in the U.S. Army, as a mechanic at Crown Cork and Seal, as a construction worker and as a welder, mechanic and shop foreman for Norfolk Southern Railroad. Randy L. Gori, Esq., of Gori, Julian and Associates in Alton, Ill., will represent Mrs. Adams. -- (Case No. 09-L-1383) Daniel G. Baldridge Jr. of Arkansas, a contractor, claims lung cancer. Robert Phillips, Esq., Perry J. Browder, Esq., and Rosalind M. Robertson, Esq., of Simmons, Browder, Gianaris, Angelides and Barnerd in East Alton, Ill., will represent Mr. Baldridge. -- (Case No. 09-L-1378) Joseph Bowden of Tennessee, a laborer and deck hand, claims lung cancer. Robert Phillips, Esq., Perry J. Browder, Esq., and Rosalind M. Robertson, Esq., of Simmons, Browder, Gianaris, Angelides and Barnerd in East Alton, Ill., will represent Mr. Bowden. -- (Case No. 09-L-1357) Patrick A. and Connie S. Brewer of Nebraska claim Mr. Brewer developed mesothelioma after his work as a laborer at Wilson's Meat Packing Plant, as a laborer at John Henshaw Construction, as a railroad car repairman for Transco, as a machine operator and as a mechanic operator for National Friction. Randy L. Gori, Esq., of Gori, Julian and Associates in Edwardsville, Ill., will represent the Brewers. -- (Case No. 09-L-1382) Almary Bristow of Alabama, a laborer and inspector, claims lung cancer. Robert Phillips, Esq., Perry J. Browder, Esq., and Rosalind M. Robertson, Esq., of Simmons, Browder, Gianaris, Angelides and Barnerd in East Alton, Ill., will represent Mr. Bristow. -- (Case No. 09-L-1377) Rex A. Buchanon of Nebraska, a carpenter, laborer and machinist, claims lung cancer. Robert Phillips, Esq., Perry J. Browder, Esq., and Rosalind M. Robertson, Esq., of Simmons, Browder, Gianaris, Angelides and Barnerd in East Alton, Ill., will represent Mr. Buchanon. -- (Case No. 09-L-1367) Althea Bussert of Arizona claims her deceased husband, James Bussert, developed mesothelioma after his work as a reliability engineer, teacher, instructor and clerk. Christopher R. Guinn, Esq., and John P. Wagner, Esq., of Simmons, Browder, Gianaris, Angelides and Barnerd in East Alton, Ill., will represent Mrs. Bussert. -- (Case No. 09-L-1372) Wayne E. Cose Jr. of California, a machinist and auditor, claims lung cancer. Robert Phillips, Esq., Perry J. Browder, Esq., and Rosalind M. Robertson, Esq., of Simmons, Browder, Gianaris, Angelides and Barnerd in East Alton, Ill., will represent Mr. Cose. -- (Case No. 09-L-1376) Melvin E. Craft of Indiana, a laborer and crane mechanic, claims lung cancer. Robert Phillips, Esq., Perry J. Browder, Esq., and Rosalind M. Robertson, Esq., of Simmons, Browder, Gianaris, Angelides and Barnerd in East Alton, Ill., will represent Mr. Craft. -- (Case No. 09-L-1374) Melvin G. Edmonds Jr. of Kansas, a carpenter, claims lung cancer. Robert Phillips, Esq., Perry J. Browder, Esq., and Rosalind M. Robertson, Esq., of Simmons, Browder, Gianaris, Angelides and Barnerd in East Alton, Ill., will represent Mr. Edmonds. -- (Case No. 09-L-1381) Kenneth A. Fitzpatrick Sr. of Wisconsin, a boilermaker, claims lung cancer. Robert Phillips, Esq., Perry J. Browder, Esq., and Rosalind M. Robertson, Esq., of Simmons, Browder, Gianaris, Angelides and Barnerd in East Alton, Ill., will represent Mr. Fitzpatrick. -- (Case No. 09-L-1355) Donald and Sharon Floyd of Missouri claims Mr. Floyd developed lung cancer after his work as a welder at North County Technical High School, a welder at Schuckman Ornamental Iron, a pressure welder at Combustion Engineering, a fitter welder at Brook's Brothers Trailers, a welder at Custom Fabricating, a welder at Unidynamics, a welder at St. Louis Fabricating, a welder at Metal Form, a welder at Engineered Air Systems, a welder and line attendant at A.O. Smith and a member of the UAW. Randy L. Gori, Esq., and Barry Julian, Esq., of Gori, Julian and Associates in Edwardsville, Ill., will represent the Floyds. -- (Case No. 09-L-1375) Ance Hatfield of Wisconsin, a boiler room fireman, boiler tender and maintenance worker, claims lung cancer. Robert Phillips, Esq., Perry J. Browder, Esq., and Rosalind M. Robertson, Esq., of Simmons, Browder, Gianaris, Angelides and Barnerd in East Alton, Ill., will represent Mr. Hatfield. -- (Case No. 09-L-1362) Cheryl Holt of Kentucky, a waitress, clerk and customer representative, claims mesothelioma. Shane F. Hampton, Esq., and Paul M. Dix, Esq., of Simmons, Browder, Gianaris, Angelides and Barnerd in East Alton, Ill., will represent Ms. Holt. -- (Case No. 09-L-1351) Hans Jensen Jr. of Louisiana claims his deceased father, Hans Jensen Sr., developed mesothelioma after his work as a mechanic, laborer, welder, pipefitter, carpenter and painter. Shane F. Hampton, Esq., and Paul M. Dix, Esq., of Simmons, Browder, Gianaris, Angelides and Barnerd in East Alton, Ill., will represent Mr. Jensen. -- (Case No. 09-L-1366) Bobby Lee Jones of Indiana, a laborer, substitute teacher, house parent, division director and chief operating officer, claims pleural mesothelioma. G. Michael Stewart, Esq., and Jill Price, Esq., of Simmons, Browder, Gianaris, Angelides and Barnerd in East Alton, Ill., will represent Mr. Jones. -- (Case No. 09-L-1358) Robert Kennedy of Ohio, a home remodeler, a fireman and locomotive engineer and a member of the U.S. Marines, claims mesothelioma. Randy L. Gori, Esq., of Gori, Julian and Associates in Edwardsville, Ill., will represent Mr. Kennedy. -- (Case No. 09-L-1361) Richard Libsack, Catherine Mattson and Yvonne Libsack claim their recently deceased father and husband, Ralph Libsack, developed mesothelioma after his work for the U.S. Marine Corp. and for the Bremerton Police Department. Allyson M. Romani, Esq., will represent the plaintiffs. -- (Case No. 09-L-1384) Patricia Mellinger of Pennsylvania, a laborer, maintenance worker and janitor, claims lung cancer. Robert Phillips, Esq., Perry J. Browder, Esq., and Rosalind M. Robertson, Esq., of Simmons, Browder, Gianaris, Angelides and Barnerd in East Alton, Ill., will represent Ms. Mellinger. -- (Case No. 09-L-1380) Leo A. Plourde of Florida, a laborer and deck hand, claims lung cancer. Robert Phillips, Esq., Perry J. Browder, Esq., and Rosalind M. Robertson, Esq., of Simmons, Browder, Gianaris, Angelides and Barnerd in East Alton, Ill., will represent Mr. Plourde. -- (Case No. 09-L-1373) Kenneth W. Reed of Colorado, a pipefitter, claims lung cancer. Robert Phillps, Esq., Perry J. Browder, Esq., and Rosalind M. Robertson, Esq., of Simmons, Browder, Gianaris, Angelides and Barnerd in East Alton, Ill., will represent Mr. Reed. -- (Case No. 09-L-1354) Vannie Robertson of Indiana, a laborer, coal truck driver and operator, claims mesothelioma. Christopher R. Guinn, Esq., and Christopher J. Levy, Esq., of Simmons, Browder, Gianaris, Angelides and Barnerd in East Alton, Ill., will represent Mr. Robertson. -- (Case No. 09-L-1352) Robert C. and Dorothy Gene Sherer of Alabama claim Mr. Sherer developed mesothelioma after his work as a janitor for Liberty National, as a sander and planer for Davis Cabinet Company and for Murphy Furniture, as a truck driver for Walker County Wholesale, as a machinist for American Cast Iron Pipe Co., in the maintenance shop at Drummond Company, for Quadra-Dyne, as a machinist for Jasper Electric Motors and as a welder for Drummond Company. Elizabeth V. Heller, Esq., and Robert Rowland, Esq., of Goldenberg, Heller, Antognoli and Rowland in Edwardsville, Ill., will represent the Sherers. -- (Case No. 09-L-1379) Thomas E. Stephan of Illinois, a laborer and carpenter, claims lung cancer. Robert Phillips, Esq., Perry J. Browder, Esq., and Rosalind M. Robertson, Esq., of East Alton, Ill., will represent Mr. Stephan. -- (Case No. 09-L-1353) Larry R. Stotts of Missouri, a mechanic's assistant at Metcalf Auto Parts, a polisher for Carthage Marble, a crater for Leggett and Platt, a punch press operator at Atlas Chemical, a laborer for Snyder Brother's Construction and a utility serviceman for Joplin Water Company, claims mesothelioma. Elizabeth V. Heller, Esq., and Robert Rowland, Esq., of Goldenberg, Heller, Antognoli and Rowland in Edwardsville, Ill., will represent Mr. Stotts. -- (Case No. 09-L-1368) Robert C. and Carol Swearingen of Florida claim Mr. Swearingen developed mesothelioma after his work as a laborer at a construction company, as a machinist mate, as a delivery man, as a carpenter for Willie's Construction, as an installer for Leo Applicators, as a commercial carpenter for McCullough Construction, as an installer for Mid-States Construction, as a salesman at Dutch Miller, as a salesman for Willies Construction, as a service man for Great Southern Contractors, as the owner and operator for Bob's Home Repair and as a superintendant at Michael Walker and Associates. Randy L. Gori, Esq., of Gori, Julian and Associates in Edwardsville, Ill., will represent the Swearingens. -- (Case No. 09-L-1356) James K. and Janice Thompson of Texas claim Mr. Thompson developed mesothelioma after his work as a construction worker, as a cashier at McDonald's, as a salesman at Executive Shop, as a salesman at Patterson/Griffin Shoe, as a manager at Butler Shoes, as a laborer at Mazer Corp., as a laborer at Corl Corp., as a supervisor at Mastercraft Corp., as a plate maker at U.S. Press, as a salesman/warehouse worker at Centex Uniforms, as a worker at Texas Direct and as a store manager at Payless Shoe Store. Randy L. Gori, Esq., and Barry Julian, Esq., of Gori, Julian and Associates in Edwardsville, Ill., will represent the Thompsons. -- (Case No. 09-L-1365) Gerald Whitbeck of Wisconsin, a worker in instrumentation maintenance, an electrician, a dope mixer, an oiler, a maintenance helper, an instrumentation repairman, a laborer and a gas attendant, claims mesothelioma. G. Michael Stewart, Esq., and Jill Price, Esq., of Simmons, Browder, Gianaris, Angelides and Barnerd in East Alton, Ill., will represent Mr. Whitbeck. ASBESTOS UPDATE: Corvallis Pair, Firm Penalized for DEQ Breaches ---------------------------------------------------------------- The Oregon Department of Environmental Quality has penalized two Corvallis, Ore., residents a total of US$9,450 and a Corvallis- based construction company US$8,400 for allowing unlicensed persons to perform asbestos abatement work in Corvallis, according to a DEQ press release dated Jan. 12, 2010. The parties were associated with the June 2009 demolition of a former residence and the five-unit former Motor Inn at the intersection of SW Philomath Boulevard and SW 53rd Street in Corvallis, Ore. DEQ issued Scott Wayne Sanders and Amy Beth Sanders a penalty totaling US$9,450, jointly and severally, for allowing unlicensed persons to perform an asbestos abatement project, the demolition of the residence and motel structures, which they owned. In addition, DEQ fined Ricardo Reed Loza, doing business as Metolius Construction Inc., US$8,400 for conducting an asbestos abatement without being licensed. The Sanderses had hired Metolius Construction to demolish the structures. Neither Mr. Loza nor his employees were licensed to perform asbestos abatement projects. DEQ asbestos inspector Dottie Boyd said the buildings contained friable asbestos-containing flooring materials, wall/ceiling materials and thermal pipe system insulation. The demolition work crushed and pulverized these materials, did not comply with applicable asbestos regulations, and likely caused the release of asbestos fibers into the atmosphere. DEQ noted two additional asbestos violations pertaining to the demolition work: openly accumulating asbestos-containing waste material and failing to have an accredited inspector survey the former Motor Inn and former residence prior to demolishing the structures. DEQ did not assess penalties for these violations. The Sanderses appealed their penalties while Mr. Loza did not appeal by his December 2009 deadline and now must pay the full penalty amount. ASBESTOS UPDATE: 10 Actions Filed in Madison Co. From Dec. 21-25 ---------------------------------------------------------------- During the week of Dec. 21, 2009 through Dec. 25, a total of 10 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-1391) Phlegar Compton of New Jersey, an engineer, claims mesothelioma. Amy E. Garrett, Esq., and W. Brent Copple, Esq., of Simmons, Browder, Gianaris, Angelides and Barnerd in East Alton, Ill., will represent Mr. Compton. -- (Case No. 09-L-1399) Kenneth Fehribach, a laborer, production worker, tooling engineer and injection mold operator, claims mesothelioma. Brian J. Cooke, Esq., of Simmons, Browder, Gianaris, Angelides and Barnerd in East Alton, Ill., will represent Mr. Fehribach. -- (Case No. 09-L-1392) Pamela Gonzalez of California claims the deceased Leanne K. Shipman developed mesothelioma after her work for Montgomery Ward and Company, for Sears Holding Corporation, for Toyota Santa Ana, for Rosalie Ginther, for Power Lift Corporation, for Forty-three, for California Rubber Products, for OA Systems and for Monterey-Carmel Communications Corporation. Richard L. Saville Jr., Esq., Ethan A. Flint, Esq., and Andrew J. Balcer, Esq., of Saville and Flint in Alton, Ill., will represent Ms. Gonzalez. -- (Case No. 09-L-1395) Anton Greiner of Ohio, who worked on personal vehicles in Dayton, who worked in Kingston in a shipyard building an aluminum minesweeper, who worked as a pipefitter for Globe Verniki, who worked as a pipefitter and who worked as a pipefitter for General Motors. Randy L. Gori, Esq., of Gori, Julian and Associates in Edwardsville, Ill., will represent Mr. Grenier. -- (Case No. 09-L-1394) Dennis and Rachel Landis of Florida claim Mr. Landis developed mesothelioma after his work as a pipefitter at Martin Welder, as a laborer at Johns Manville, as a laborer at Scannell Boiler Works, as a laborer at Prelco, as a builder of fuel trucks at Tech-Weld and as a member of the Teamsters Local Union 49. Randy L. Gori, Esq., and Barry Julian, Esq., of Gori, Julian and Associates in Edwardsville, Ill., will represent the Landises. -- (Case No. 09-L-1389) Murriel O'Neill claims the deceased Naomi Winter developed mesothelioma after she was exposed to asbestos fibers through a family member, Walter A. Winter, who worked as a laborer. Robert Phillips, Esq., Perry J. Browder, Esq., and Rosalind M. Robertson, Esq., of Simmons, Browder, Gianaris, Angelides and Barnerd in East Alton, Ill., will represent Ms. O'Neill. -- (Case No. 09-L-1388) Michelle Rice of Texas claims her deceased father, Oren Monceaux, developed mesothelioma after his work as a laborer and home remodeler. Robert Phillips, Esq., Perry J. Browder, Esq., and Rosalind M. Robertson, Esq., of Simmons, Browder, Gianaris, Angelides and Barnerd in East Alton, Ill., will represent Mrs. Rice. -- (Case No. 09-L-1387) Martha Royal of Missouri claims her deceased husband, Jerry Royal, developed lung cancer after his work as a machinist and home remodeler. Robert Phillips, Esq., Perry J. Browder, Esq., and Rosalind M. Robertson, Esq., of Simmons, Browder, Gianaris, Angelides and Barnerd in East Alton, Ill., will represent Mrs. Royal. -- (Case No. 09-L-1393) John Ward of Nevada claims his deceased father, Robert Carroll Ward, developed mesothelioma after his work as a firefighter. Amy E. Garrett, Esq., and Sean M. Keane, Esq., of Simmons, Browder, Gianaris, Angelides and Barnerd in East Alton, Ill., will represent Mr. Ward. -- (Case No. 09-L-1390) Keith West Sr. and Ruth West of Michigan claim Mr. West developed mesothelioma after his work as a stationary engineer, laborer, foreman and truck driver. Nicholas J. Angelides, Esq., of Simmons, Browder, Gianaris, Angelides and Barnerd in East Alton, Ill., will represent Mrs. West. ASBESTOS UPDATE: Bridgford Shopfitter's Death Linked to Exposure ---------------------------------------------------------------- Nottinghamshire assistant deputy coroner Mairin Casey recorded a verdict of industrial disease for 70-year-old Michael Lord, a retired shopfitter from West Bridgford, England, the Evening Post reports. Mr. Lord had spent more than 20 years working as a shopfitter and been exposed to asbestos, Nottingham Coroner's Court heard. He died at the City Hospital on Oct. 29, 2009 after developing pleural plaques in 2002. Mr. Casey said, "It was likely that Mr. Lord was exposed to asbestos through his working life." ASBESTOS UPDATE: Residents Near Batehaven Not at Risk to Hazard ---------------------------------------------------------------- Fergus Thomson, the Mayor of the Eurobodalla Shire in New South Wales, Australia, says locals near a demolition site at Batehaven are not at risk of asbestos exposure, ABC News reports. Property owner Rob McCauley says asbestos material is being incorrectly removed from the site, and the safety of people nearby is being compromised. He accused the Mayor of neglecting his duty of care by relying solely on the WorkCover authority. However, Councilor Thomson says WorkCcover is the appropriate body to conduct inspections, and there is no cause for concern. WorkCover says work on the site will be delayed for two weeks, after local tourism operators said they lost bookings after the alarm was raised. ASBESTOS UPDATE: Asbestos Forces Closure of DMNA Armory in N.Y. ---------------------------------------------------------------- On Jan. 4, 2010, the New York State Division of Military and Naval Affairs (DMNA) closed parts of the New York State Armory on Manor Road in Staten Island, N.Y., following the discovery of asbestos in some armory offices and work spaces, according to a DMNA press release dated Jan. 12, 2012. At this time, the armory drill shed, weapons storage and supply rooms are not affected. Combined Support Maintenance Shop B also located at the site is not affected and remains open for normal missions. Full time staff and drilling units assigned to the armory have been shifted to other New York City armories to perform their routine duties and training. DMNA has coordinated with the New York State Office of General Services to pursue emergency contract work to safely remove and clean all pieces of equipment that remain in the armory so they can be again used by the staff and Soldiers. In addition, efforts are underway to obtain an asbestos abatement contract with a licensed provider. The goal is to have the armory ready to be reoccupied by Aug. 15, 2010. Soldiers and other military staff assigned to the armory have completed Department of Defense medical evaluation forms, which will be kept in their military medical files as a baseline in case they develop any kind of medical condition which could be related to asbestos exposure in the future. The asbestos is a component of a fireproof coating that was applied to the main ceiling in the armory's work spaces sometime in the 1940s or 1950s. This material began to flake off and fall onto drop ceilings during a window replacement and masonry repair project that began in September 2009. This project, part of the aggressive maintenance and restoration effort at the historic building, involved replacing decaying original windows with modern, energy-efficient replacements which maintain the historic look of the building. The agency identified the potential for asbestos contamination in October 2009 and began conducting tests. Initial atmospheric testing in the workplaces came up negative. Follow on testing revealed the presence of some asbestos fibers on surfaces in workspaces and at that point the decision was made to close offices and, eventually, most of the building. The armory was constructed in 1926 as headquarters for a National Guard Cavalry Brigade. It is currently home to of the 145th Maintenance Company and the 42nd Infantry Division's Tactical Headquarters 2. ASBESTOS UPDATE: Halton Borough OKs Plan to Build 123 New Homes ---------------------------------------------------------------- The Halton Borough Council in Cheshire, England, on Jan. 11, 2010, approved plans to build 123 new homes in Derby Road, Widnes, which was the site of a former asbestos cement works, BBC News reports. Eternit, which owns the land along with the council, said in a statement that it had been fully compliant with health, safety and environmental law. Residents opposed the plans, at the former Turners Asbestos Cement works, fearing work could disturb asbestos. A council spokesman said permission was granted "subject to a significant number of stringent conditions." A wide range of cement products containing asbestos were manufactured at the site from 1916 until 1999. Campaigners assert that disturbing the land would lead to dormant asbestos being distributed into the surrounding air. The council spokesman said developer Marley Eternit Ltd had been required to produce a full, detailed site investigation and risk assessment. It also had to develop a strategy to redevelop the site safely, including how it will deal with asbestos. ASBESTOS UPDATE: Kings County OKs New Asbestos Disposal Dumpsite ---------------------------------------------------------------- The Board of Supervisors in Kings County, Calif., affirmed the expansion of a local toxic waste disposal site that has carried thousands of tons of asbestos and other materials, in which the site is located in Kettleman City, Calif., Mesothelioma reports. At this point, the site is the only one in California that accepts certain types of toxic waste, including highly dangerous polychlorinated biphenyls (PCBs). According to U.S. Environmental Protection Agency estimates, the Kettleman City site takes in nearly two million pounds of asbestos tailings every year and three million pounds of lead- based compounds and more than one hundred thousand pounds of arsenic. In Kettleman City, the dumpsite has been cited as a leading cause of birth defects in local children. With 20 births recorded among area families in 14 months beginning in September 2007, five of those 20 were born with cleft lips or cleft palates, a startling 25 percent birth defect rate, with three of those five dying before their second birthdays. According to data from the state's health offices, the standard rate for the occurrence of cleft lip or cleft palate is less than one in 800. Another concern with the expansion of the dumpsite comes from the additional asbestos that may be brought in from other areas. Currently, the dump accepts waste from all parts of the state, as well as neighboring states and northern Mexico. With the growing use of asbestos-laced concrete in some parts of Mexico as an inexpensive construction material, residents are concerned that some of the asbestos waste will become airborne, which could lead to a rise in the incidence of mesothelioma. The owners of the dumpsite, Chemical Waste Management, Inc., proposed the expansion of the site to members of the Kings County Board of Supervisors. The company contributes as much as US$3 million every year in taxes and other fees to the county and is the largest firm in the area. Company officials also have promised to support a health study into the high incidence of birth defects, cancer and other ailments near the site, but do not agree with area residents that exposure to the asbestos and other waste products are directly responsible for the health issues. ASBESTOS UPDATE: Renovation at Millom Co-op Site Uncovers Hazard ---------------------------------------------------------------- Specialist workers are tasked to remove potentially toxic asbestos found in a Millom Co-op supermarket, which has been shut since Jan. 2, 2010 while a GBP300,000 refit is ongoing, the North-West Evening Mail reports. A spokesman for the supermarket has reassured customers that the discovery of asbestos will not affect the planned reopen date of Jan. 28, 2010. A Co-op spokesman said, "As part of the major GBP300,000 Millom store refit, it is necessary to remove a quantity of asbestos containing material from the premises by a specialist asbestos removal contractor. "Our priority has been and remains the safety of our customers and staff and the removal is being carried out under strictly controlled conditions." The Co-op has branches in Askam, 17 miles away, Ulverston, 18 miles away, Dalton, 20 miles away and Barrow, 25 miles away. ASBESTOS UPDATE: District Court Denies Gragg's Motion to Remand ---------------------------------------------------------------- The U.S. District Court, Southern District of Illinois, denied Robert Gragg's Motion to Remand, in an asbestos action styled Robert Gragg, Plaintiff v. Alfa Laval, Inc., as successor in interest to DeLaval Separator Company, et al., Defendants. District Judge G. Patrick Murphy entered judgment in Civil Action No. 09-773-GPM on Nov. 20, 2009. This matter was before the Court on the motion for remand of this case to state court brought by Mr. Gragg. This case, in which Mr. Gragg sought damages for personal injuries allegedly caused by exposure to asbestos, was filed originally in the Circuit Court of the Third Judicial Circuit, Madison County, Ill. Foster Wheeler Energy Corporation had removed the case to this Court. To conclude, Mr. Gragg's motion to remand was denied. However, as discussed, the Court's independent investigation of the existence of federal subject matter jurisdiction in this case led the Court to conclude that subject matter jurisdiction did not exist in this case. Accordingly, this case was remanded to the Circuit Court of the Third Judicial Circuit, Madison County, Ill., for lack of federal subject matter jurisdiction. ASBESTOS UPDATE: Court OKs Hendricks' Remand Bid in DDC Lawsuit ---------------------------------------------------------------- The U.S. District Court, Northern District of California, affirmed Sondra Hendricks' Motion to Remand, in an asbestos- related lawsuit filed against Detroit Diesel Corporation (DDC). The case is styled Sondra Hendricks, Plaintiff v. Detroit Diesel Corporation, Defendant. U.S. Magistrate Judge Edward M. Chen entered judgment in Case No. C-09-3939 EMC on Nov. 25, 2009. Roy McGill filed a suit in state court in Aug. 8, 2005 against various defendants, including General Motors Corporation (GM) and DDC. In 2008, the state court permitted the substitution of Ms. Hendricks for Mr. McGill, who had died. On or about June 1, 2009, GM filed for bankruptcy. Subsequently, DDC filed a notice of removal based on the bankruptcy action, removing only the claims asserted against it. Ms. Hendricks thereafter filed a motion to remand the case. The complaint alleged that Mr. McGill was exposed to asbestos since the 1940s while working as a truck driver and welder. The claims pleaded against DDC specifically are: negligence, strict liability, and false representation. These same claims are pleaded against GM. According to DDC, DDC was originally a division in GM. In 1988, GM sold various assets in that division to a third party and that division became a new corporation, i.e., DDC. ASBESTOS UPDATE: R.I. Court OKs Hopkins' Remand Bid in FW Action ---------------------------------------------------------------- The U.S. District Court, District of Rhode Island, granted Oliver M. and Mary L. Hopkins' Motion to Remand, in an asbestos-related lawsuit filed against Foster Wheeler Ltd. The case is styled Oliver M. Hopkins and Mary L. Hopkins, Plaintiffs v. Buffalo Pumps, Inc., et al., Defendants. U.S. District Judge William E. Smith entered judgment in Civil Action No. 09-181 S on Dec. 1, 2009. Before the Court was FW's Objection to a Report and Recommendation issued by Magistrate Judge Almond on Aug. 5, 2009, which recommended that the Hopkinses Motion to Remand be granted. The Hopkinses brought an action in the Superior Court against FW and four other defendants. Plaintiffs claim that Mr. Hopkins contracted mesothelioma due to exposure to Defendants' asbestos- containing products. Plaintiffs' complaint alleged that Mr. Hopkins "was exposed to various asbestos containing products through the use of products manufactured, sold or distributed by the named defendants with such exposure as these named defendants' products occurring as a laborer and maintenance worker at Mobil Oil from 1946-1966 and Tucson Gas & Electric ... from 1966-1979." Although FW was served on March 17, 2009, at some point prior, Plaintiffs served all Defendants with discovery responses detailing Mr. Hopkins' employment history. FW removed the case to this Court on April 16, 2009. FW asserted that it "manufactured the economizers" on four of the Navy Ships identified in Plaintiffs' exposure chart and that it was "acting under an officer or agency of the United States. The day before the removal, on April 15, 2009, a cross-claim was filed in the state court by Defendant P.I.C. Contractors, Inc., but in transferring the record to this Court, the state court did not include the cross-claim in the file. Plaintiffs filed a Motion to Remand on May 15, 2009, which Magistrate Judge Almond recommended granting on Aug. 5, 2009, because the Complaint specifically disclaimed Plaintiffs' work aboard Navy Ships. In the Report and Recommendation, Judge Almond found that FW failed to raise its removal argument based on the cross-claim, and that the argument was waived. Brian P. Kenney, Esq., Robert J. Sweeney, Esq., of Early, Ludwick & Sweeney, L.L.C. in New Haven, Conn., represented the Plaintiffs. James R. Oswald, Esq., Mark O. Denehy, Esq., R. Bart Totten, Esq., of Adler Pollock & Sheehan P.C. in Providence, R.I., represented the Defendants. ASBESTOS UPDATE: Goddard Case v. 23 Firms Filed Dec. 23 in W.Va. ---------------------------------------------------------------- An asbestos-related lawsuit, on Dec. 23, 2009, styled Hilma F. Goddard, executrix of the Estate of David Lee Goddard vs. 3M Company, A.W. Chesterton Company et al., was filed in Kanawha County Circuit Court, W.Va., The West Virginia Record reports. Cindy J. Kiblinger, Esq., represents Mrs. Goddard. Case No. 09-C- 2349 will be assigned to a visiting judge. Mr. Goddard was diagnosed with mesothelioma in March 2008 and died April 25, 2008. Mrs. Goddard claims the 23 defendants are responsible for her husband's mesothelioma. Mr. Goddard smoked two packs of cigarettes each day for 19 years, but quit smoking in 1973, according to the suit. Mrs. Goddard seeks a jury trial to resolve all issues concerning the asbestos-related case. ASBESTOS UPDATE: Chevron Probing Exposure Claims at Gorgon Site ---------------------------------------------------------------- Chevron Corporation is checking claims that maritime workers, who were transporting materials for the US$50 billion Gorgon gas project in Western Australia, were exposed to asbestos, the Sunday Times reports. Chris Cain, the Maritime Union's WA branch secretary, said that dust laden with asbestos has allegedly been spilling onto decking when in transit from Barrow Island to Dampier since October 2009. Mr. Cain asserts the lives of workers both at sea and on land have been put at risk as the dangerous dust is stored in old, unsealed and unmarked bins. Chevron's general manager Colin Beckett says the Company is investigating handling procedures on the island but that asbestos removal is dealt with by specialist teams and the material is clearly labeled and placed in sealed steel drums. WorkSafe has begun its own investigation, while Mr. Cain is calling the issue a "major catastrophe" and demanding a full government inquiry. Barrow Island is believed to have been contaminated with asbestos from past mining operations. Mr. Cain wants allegedly exposed workers treated to full medicals while being place on the asbestos register. He claims asbestos dust is being transported in pallets, drums and bags, all unmarked and destination unknown. Mr. Beckett says Chevron's first concern is the health and safety of workers and that the staff is properly trained in what to do if they discover asbestos or has any concerns. Mr. Beckett adds the asbestos is being transported to a secure, government approved disposal area in Australia. ASBESTOS UPDATE: Bendix Plant in Ohio to be Demolished Jan. 2010 ---------------------------------------------------------------- Honeywell International Inc. prepares to demolish the asbestos- contaminated former Bendix Brake plant in Cleveland, Ohio, later in January 2010, the Mesothelioma & Asbestos Awareness Center reports. According to city officials, demolition of existing buildings of the brake pad manufacturing plant is expected to wrap up sometime this spring. According to Cleveland/Bradley Chamber of Commerce Vice President of Economic Development Doug Berry, the Bendix plant has been designated a Brownfield site by the U.S. Environmental Protection Agency. This is because of the large amount of asbestos present at the site. Over time, the asbestos used in the manufacturing brake pads contaminated the site. Mr. Berry says that the demolition makes more financial sense than using the old site for a new use. ASBESTOS UPDATE: Meriden Local Sentenced for Breaching TSCA Laws ---------------------------------------------------------------- A federal judge at the U.S. District Court in Bridgeport, Conn., on Jan. 5, 2010, sentenced Meriden, Conn., local, John V. Bruce, for violating the federal Toxic Substance Control Act. The 39-year-old Mr. Bruce was ordered to perform 200 hours of community service and pay fines of US$800. Mr. Bruce, owner of Environmental Training and Consulting Inc. of Vernon and Wallingford, had pleaded guilty to the charge during a hearing on Oct. 19, 2009. Federal documents state that in May 2004, he sold a certificate for US$400 for a 32-hour asbestos worker training course to a person who never enrolled in the course. The certificate was signed by Mr. Bruce and included a completion date of 2002. Investigators discovered the illegal transaction after learning that the person Mr. Bruce had sold the certificate to an illegal alien from Honduras who came to the United States only two weeks before receiving the certificate. ASBESTOS UPDATE: PW Mills Discharged for Asbestos Cleanup Breach ---------------------------------------------------------------- Judge Michael Dudley ordered PW Mills (Cradley Heath) to a two year conditional discharge after it failed to remove asbestos from a unit in the Black Country, England, Halesowen News reports. Judge Dudley imposed the penalty after being told PW Mills had ceased trading but made it clear it would have had to pay a "substantial fine" if it had still been in business. PW Mills admitted three charges of contravening health and safety regulations before Walsall Magistrates and another involving the breach by an employee of general work duties. The Company had been committed for sentence to Wolverhampton Crown Court but, in a five minute hearing, Judge Dudley was told the firm had gone out of business. Magistrates had been told at an earlier court hearing the Company was called out to the Crescent Works Industrial Park in Darlaston after being informed asbestos debris had been discovered in two units that were vacant at the time. The firm was called out to remove the asbestos but a month later when a battery company was ready to occupy one of the unit's tests revealed asbestos was still evident. Prosecuting at the hearing for the Health and Safety Executive, Mark Ford said it was clear the asbestos removal operation had not been carried out properly. He said, "Asbestos is a very dangerous material and this could have had very serious consequences." ASBESTOS UPDATE: Hazard to be Taken From Pa. Children's Hospital ---------------------------------------------------------------- Asbestos will be removed from the Children's Hospital in Oakland, Pa., prior to partial demolition, Mesothelioma.com reports. The Children's Hospital is part of the University of Pittsburgh Medical Center. Part of the Children's Hospital will be demolished in 2010. The removal of asbestos from the structure prior to demolition is a vital matter of public health and safety, and must be done in accordance with state and federal regulations. The demolition will commence in February 2010 and will complete 12 or 13 months after it has begun. One hospital tower, complete with helicopter pad, will remain after the demolition has been completed. The Children's Hospital has been vacant since May 2009, when operations moved to a new US$625 million complex in Lawrenceville. Spokesman Frank Raczkiewicz said, "We're still putting the plan together... We don't know what the site will look like, as of yet. There have been no final design decisions made." Mr. Raczkiewicz then added that prior to demolition; a great deal of asbestos abatement is needed. All told, removing asbestos from the site prior to demolition will take four entire months. ASBESTOS UPDATE: Hazard to be Removed From Carlson Hall in Wis. ---------------------------------------------------------------- Asbestos is scheduled to be removed from Carlson Hall, which is part of the University of Wisconsin-Whitewater, Mesothelioma.com reports. Despite budget cuts back in June 2009, the State Building Commission of Wisconsin has now recommended restoring a US$17 million dollar renovation project at the University of Wisconsin- Whitewater. The project will renovate Carlson Hall, and is long overdue according to David Miller, a UW System vice president. The Carlson Hall renovation would begin in April 2011 and be completed in 2012. The Carlson Hall renovation would involve gutting the 37-year-old building, performing major upgrades, and removing asbestos as required by federal and state law. ASBESTOS UPDATE: U.K. Insurers' Bid in Compensation Case Junked ---------------------------------------------------------------- On Jan. 8, 2010, Lord Emslie, of the Supreme Court of Scotland, rejected an attempt by insurers in the United Kingdom to abolish Scottish legislation, which gave pleural plaques victims the right to claim damages, the Financial Times reports. The insurers (Aviva plc, AXA, RSA, and Zurich Financial Services) sought to overturn the Holyrood act that, in 2009, allowed sufferers from pleural plaques to claim compensation. The Scottish legislation reversed a House of Lords ruling in 2007 that pleural plaques, which indicate exposure to asbestos but do not generally cause symptoms, did not amount to a "compensatable injury." The Lords ruling had stopped the long-standing practice of providing compensation of up to GBP20,000 in those cases. The insurers said the act would benefit a small group of individuals who had suffered no harm and would impose a "disproportionate and excessive burden on insurers running into hundreds of millions, if not billions, of pounds." Lord Emslie's written ruling said there was clearly room for differences of opinion as to whether Holyrood was right to legislate in the way it did, and it remained to be seen whether the 2009 act would have adverse legal or political consequences. Hugh Scullion, general secretary of the Confederation of Shipbuilding and Engineering Unions, said it was delighted Lord Emslie had rejected insurance companies' attempts to shy away from their responsibilities to compensate workers suffering from this illness. The Association of British Insurers was "very disappointed" by the ruling and said it might appeal. ASBESTOS UPDATE: R.L. Abatement to Remove Hazard From Courthouse ---------------------------------------------------------------- Commissioners in Randall County, Tex., on Jan. 12, 2010, have chosen R.L. Abatement of Weslaco, Tex., to remove asbestos from the Randall County courthouse, Amarillo.com reports. The company bid US$44,000 for the asbestos abatement job. Randall County Purchasing Agent Laurie Jones said, "They're doing a lot of work in the area. That's one reason it's so low." The bids of the other three companies responding to a request for proposals ranged from US$63,000 to US$77,150. ASBESTOS UPDATE: Cleanup, Facelift at Tex. Capitol Dome Ongoing ---------------------------------------------------------------- The Capitol Dome in Austin, Tex., is undergoing renovation work, including asbestos abatement, which was commenced by the State Preservation Board, Mesothelioma.com reports. The dome dates back to 1882, making the renovation work painstaking. Facilities director Lee Baker explained to local reporters, "They [the original builders of the Capitol Dome] designed for water to get into the building. They also designed for it to get out." However, asbestos in the eighth level walkway has blocked that drainage. The project is expected to be finished in 2011, and is expected to cost a grand total of US$2.5 million, financed by the Capitol complex parking fees and store revenues. ASBESTOS UPDATE: Asbestos Found During Market Deeping Renovation ---------------------------------------------------------------- Traces of asbestos were accidentally disturbed during the renovation of the Deepings Community Centre in Market Deeping, England, the Rutland & Stamford Mercury reports. Specialists were called in to clear away the material at the Deepings Community Centre. On Jan. 8, 2010, Centre trustee David MacVitie said immediate action was taken to ensure there was no risk to public safety. Mr. MacVitie said, "As soon as the accident happened the hall was closed and steps were taken to arrange the safe disposal of the material. "The porch, part of a reception area when the building was used as a health centre, is being removed. While the hall is closed, we are taking the opportunity to install a new wooden floor." The hall is unlikely to be back in use until February 2010, but the rest of the community centre is open as normal. The center was opened in October 2000 following a three-year campaign by local residents, resulting in the award of a GBP50,000 grant from the BT Better Towns competition. The center is run by volunteers, receives no central funding and costs GBP1,000 per week to run. ASBESTOS UPDATE: Council Urged to Deal With Asbestos in Scotland ---------------------------------------------------------------- Mary Scanlon, a Member of the Scottish Parliament, is calling for greater efforts to deal with asbestos in Highland, Scotland, schools, The Press and Journal reports. Speaking in a parliamentary debate on Jan. 7, 2010, Mrs. Scanlon said medical evidence suggested that the peak may not happen until 2015, with an expected death rate in the United Kingdom of 2,500 cancer victims annually. The Conservatives' Scottish spokeswoman on health said there were currently 70,000 people in the U.K. who were exposed to asbestos and facing death from mesothelioma. Mrs. Scanlon added that the state of the structure of Wick Academy had also been questioned and raised on numerous occasions in the Scottish Parliament. Concern also remained about asbestos in the main building at Kingussie High School. Mrs. Scanlon told MSPs that she would continue to assist those challenging Highland Council to meet its obligations regarding the safety of its school buildings, pupils and staff. The discovery of asbestos at Kingussie High in September 2009 led to a window replacement contract being delayed. It was found in the sealing compound of the old windows. After halting the contract and calling in asbestos specialists, Highland Council asserted that no traces of asbestos fibers were found in the air when tests were carried out during removal of one of the windows. ASBESTOS UPDATE: Appeal Court Issues Split Ruling in Link Action ---------------------------------------------------------------- The Court of Appeals of Ohio, Eighth District, Cuyahoga County, issued split rulings in an asbestos-related case styled Daniel D. Link, Plaintiff-Appellee v. Consolidated Rail Corp., et al., Defendants-Appellants. Judges Colleen Conway Cooney, Melody J. Stewart, and Ann Dyke entered judgment in Case No. 92503 on Nov. 25, 2009. Judge Dyke dissented. This was a civil appeal from the Cuyahoga County, Court of Common Pleas. Consolidated Rail Corporation (CRC) appealed the trial court's order finding that plaintiff-appellee, Daniel Link, substantially complied with the prima facie requirements of R.C. 2307.92. In 2004, Mr. Link brought an occupational disease action against CRC, CSX Transportation, and Norfolk Southern Railway Co. He alleged that these defendants violated the Federal Employers' Liability Act by negligently allowing him to be exposed to various substances, including asbestos and asbestos dust. CRC moved to administratively dismiss the matter in January 2008. The trial court held a hearing and subsequently ordered that Mr. Link substantially complied with the prima facie filing requirements of R.C. 2307.92. In addition, CRC filed a motion for reconsideration. Therefore, judgment was affirmed in part and reversed in part, with instructions for the trial court to administratively dismiss only Mr. Link's asbestos-related claims. David A. Damico, Esq., Ira L. Podheiser, Esq., of Burns, White & Hickton, LLC, in Pittsburgh represented appellants. Michael H. Doran, Esq., Michael L. Torcello, Esq., of Doran & Murphy, LLP in Buffalo, N.Y., represented appellee. ASBESTOS UPDATE: N.Y. Court OKs Board Ruling in Parrelli Action ---------------------------------------------------------------- The Supreme Court, Appellate Division, Third Department, New York, affirmed the June 11, 2007 ruling of the Workers' Compensation Board, which denied compensation benefits to Alfredo Parrelli for his injuries. The case is styled In the Matter of the Claim of Alfredo Parrelli, Appellant v. Atlantic Construction et al., Respondents. Workers' Compensation Board, Respondent. Judges Karen K. Peters, Edward O. Spain, John A. Lahtinen, Anthony T. Kane and Bernard J. Malone Jr. entered judgment in the case on Nov. 25, 2009. Mr. Parrelli sustained a work-related injury to his right hand in 1997. He filed a workers' compensation claim and was ultimately found to have suffered a permanent partial disability and received a lump-sum settlement. He did not return to work following his hand injury and, due in part to that injury, he applied for disability retirement in 1998. Mr. Parrelli filed the present workers' compensation claim in 2000, alleging that he suffered from a lung disease caused by his workplace exposure to asbestos. A Workers' Compensation Law Judge established the claim and awarded Mr. Parrelli lost wages from September 2001 through December 2006. Upon review, the Workers' Compensation Board eliminated that award, determining that Mr. Parrelli retired for reasons unrelated to his lung condition and lost no wages as a result of it. This appeal ensued. The Appeals Court affirmed the Board ruling. Kornfeld & Associates, New York (Peter Malloy, Esq., of counsel), represented Alfredo Parrelli. Gregory J. Allen, State Insurance Fund, New York (David E. Baida, Esq., of counsel), represented Atlantic Construction and another party. ASBESTOS UPDATE: Conn. Court Affirms Board's Decision in Voronuk ---------------------------------------------------------------- The Appellate Court of Connecticut affirmed the ruling of the Workers' Compensation Review Board, which dismissed Marjorie Voronuk's claim against Electric Boat Corporation for survivor's benefits. The case is styled Marjorie Voronuk v. Electric Boat Corporation et al. Judges Alexandra D. DiPentima, Richard A. Robinson and West entered judgment in Case No. 29589 on Dec. 1, 2009. Joseph Voronuk, Mrs. Voronuk's late husband, who died in 1995, testified by deposition on Nov. 14, 1989, that he first worked for Electric Boat in 1942 as a shipfitter for about six months to one year and that during that period he was exposed to asbestos while on the job. The Voronuks were married in 1947 and remained married and living together until his death. He resumed employment with Electric Boat in 1951 as a carpenter. He testified that in the course of his employment as a carpenter for Electric Boat, he was exposed to asbestos. Mr. Voronuk testified that in 1982, due to complaints of chest pain, he was examined by Paul Gerity, a physician. Dr. Gerity's notes of the examination revealed that Mr. Voronuk was fearful that his prolonged exposure to asbestos on the job made him susceptible to asbestosis. Mr. Voronuk's medical records showed that from October 1982 through April 1986, he was treated by Dr. Gerity and William G. Crawford, another physician, for complaints of chest pain. Mr. Voronuk retired from Electric Boat in 1986. In September 1993, Mr. Voronuk was hospitalized and diagnosed with congestive heart failure, cardiomyopathy, asbestosis and chronic obstructive pulmonary disease. He was again hospitalized in July1994 and November 1994 due to complications resulting from congestive heart failure, pleural effusions, cardiomegaly, chronic obstructive pulmonary disease, hypoxia and asbestosis. He died on Oct. 13, 1995. On Dec. 6, 1995, Mrs. Voronuk filed with the commissioner a form 30-C seeking survivor's benefits. In 1996, Mark R. Cullen, a physician, reviewed Mr. Voronuk's medical records and prepared a report that Mrs. Voronuk submitted to the commissioner. This appeal followed. Carolyn P. Kelly, Esq., represented Mrs. Voronuk. Peter D. Quay, Esq., represented Electric Boat Corporation. ASBESTOS UPDATE: Mass. Contractors Fined $36T for Cleanup Breach ---------------------------------------------------------------- The Massachusetts Department of Environmental (MassDEP) levied fines totaling US$36,000 against a home improvement contractor, an insulation contractor, and an asbestos abatement contractor for violating state asbestos regulations, according to a MassDEP press release dated Jan. 12, 2010. The violations against the three firms were discovered in December 2008 during a MassDEP complaint investigation of a multi-unit residential building located on Main Street in Easthampton, Mass. The investigation determined that contractors failed to use appropriate asbestos transite-siding handling and disposal procedures during insulation and siding work on the building. In a subsequent inspection, MassDEP discovered that the asbestos contractor later hired to perform asbestos abatement at the site failed to appropriately employ certain asbestos-handling measures. Michael Gorski, director of MassDEP's Western Regional Office in Springfield, said, "The asbestos regulations are very prescriptive in terms of proper removal and disposal of asbestos- containing materials in order to prevent asbestos fibers from becoming airborne. "Contractor awareness of the existence of asbestos-containing construction material is essential in promoting compliance with these regulations, and assuring the protection of the public health and welfare." In separate settlement agreements with MassDEP, Phil Beaulieu & Sons Home Improvement Inc. and Gilbert & Son Insulation Inc., both based in Chicopee, and Compass Restoration Services LLC of Belchertown agreed to pay penalties of US$10,000, US$10,000, and US$16,000, respectively. A portion of each assessed penalty was suspended provided that the companies comply with the terms of their respective agreements. ASBESTOS UPDATE: Marks & Spencer, Others Fined for Safety Breach ---------------------------------------------------------------- The Health and Safety Executive, on Jan. 12, 2010, commenced criminal proceedings against Marks and Spencer plc and four other companies for asbestos breaches while refurbishing shops in Reading, Bournemouth and Plymouth where staff and members of the public were exposed to asbestos fibers, according to an HSE press release dated Jan. 12, 2010. At Bournemouth Magistrates' court, Marks and Spencer plc pleaded not guilty to breaching three counts of section 2(1), relating to their own staff, and three counts of section 3(1), relating to members of the public and other workers, of the Health and Safety at Work etc Act 1974. Each of these charges relates to each of the three stores and date from September 2004 to November 2006. Styles and Wood Ltd, based in Cheshire, England, pleaded guilty to contravening sections 2(1) and 3(1) of the Health and Safety at Work etc Act 1974. These charges relate to offences committed between April 24, 2006 and Nov. 13, 2006 at the Marks and Spencer plc store at 12 Broad Street, Reading. The company will be sentenced at Crown Court at a later date. Willmott Dixon Construction Ltd of Hertfordshire, England, entered no plea to the allegations of contravening sections 2(1) and 3(1) of the Health and Safety at Work etc Act 1974 between Feb. 5, 2007 and July 3, 2007. These alleged breaches took place at the Marks and Spencer plc store at 23 Commercial Road in Bournemouth. Manchester-based company PA Realisations Ltd (formally Pectel Ltd), faces allegations of contravening regulation 10 of the Control of Asbestos at Work Regulations 2002 between April 24, 2006 and Nov. 12, 2006, and regulation 15 of the Control of Asbestos at Work Regulations 2002 on dates between May 5, 2006 and Nov. 12, 2006 at the Marks and Spencer plc store in Reading. PA Realisations Ltd was not represented in court on Jan. 12, 2010. A committal hearing date has been set for 2:15 p.m. on Feb. 9, 2010 at Bournemouth Magistrates' Court. ASBESTOS UPDATE: 3 Firms Penalized for Breaches at Newport Base ---------------------------------------------------------------- Three entities involved in a demolition project at the Newport Navy Base in Newport, R.I., have agreed to pay a penalty for alleged violations of Federal requirements for the safe handling and disposal of asbestos during demolition activities, according to a U.S. Environmental Protection Agency press release on Jan. 13, 2010. According to the EPA complaint, the United States Naval Station - Newport, Goel Services, Inc., and A. A. Asbestos Abatement Co., Inc. each violated the Clean Air Act and the National Emission Standard for Hazardous Air Pollutants for Asbestos (Asbestos NESHAP) requirements when, in February 2009, they conducted a demolition operation involving asbestos at the Navy Base. Specifically, EPA alleged that the three parties failed to properly seal asbestos-containing waste materials in leak-tight containers while the materials were wet. EPA previously had issued non-penalty administrative orders to both the Newport Navy Base and A.A. Asbestos Abatement for Asbestos NESHAP violations involving failure to provide proper written notice to EPA before work began. Under this settlement, the three parties must pay a US$14,238 penalty and certify that they are currently operating in compliance with Asbestos NESHAP requirements. The federal Clean Air Act and the Asbestos NESHAP requirements, promulgated under the Act, require owners and operators of demolition or renovation operations to inspect a facility before beginning work and, for jobs involving certain threshold amounts of regulated asbestos-containing materials, to comply with specific notification, work practice, and waste disposal requirements. For demolitions, prior written notification is required under the Asbestos NESHAP whether or not asbestos is believed to be present. ASBESTOS UPDATE: Hazard Discovered in Iowa Care Facility Bldgs. ---------------------------------------------------------------- Slater, Iowa-based Ames Environmental Inc. uncovered asbestos at former care facility buildings in Jasper County, Iowa, the Newton Daily News reports. The Jasper County Board of Supervisors has received a final report from the firm, and the tests have come back positive. Ames inspected the care facility buildings on Dec. 21, 2009. Nearly 100 samples were taken, and 14 of those came back positive for asbestos. Majority of it was found in the floor tiles and roof areas, as well as in some construction materials. Jasper County Supervisor John Parsons said the next step for the county was to create plans to mitigate the asbestos and get those plans approved by the Department of Natural Resources before the buildings can be demolished. Ames Environmental has said that their company could provide the County with design plans for removal of the asbestos and send the information to contractors to complete the project. ASBESTOS UPDATE: Hazard Removed from Boffa Hospital in Valletta ---------------------------------------------------------------- On Jan. 13, 2010, Brian St John, CEO of the Foundation for Medical Services, says that asbestos in the underground service tunnels and the boiler room at Boffa Hospital, in Valletta, Malta, has been removed, the Times of Malta reports. Mr. St John spoke during a visit to the hospital by Health Parliamentary Secretary Joe Cassar. The hospital is being renovated at a cost of EUR200,000. The new oncology hospital is expected to be completed in 2013. Mr. St John said the project was divided into three phases: a risk assessment and the removal of asbestos; a replacement of the hot water system; and painting, plastering and retiling. No details were given about the results of tests, which had been carried out on medical personnel at the hospital because of the asbestos. ASBESTOS UPDATE: Hoult's Family Gets Payout for Asbestos Injury ---------------------------------------------------------------- The family of Derek Hoult, of Kinross Crescent, Great Barr, England, won an undisclosed six-figure asbestos payout, nine years after his death to asbestos disease, the Express & Star reports. Mr. Hoult was 64 years old when he died in November 2001 after suffering a malignant tumor on the lining of his chest. The former driver had worked for timber merchants Rudders and Payne in Hockley, Birmingham, in the 1950s and 1960s, delivering asbestos ceiling panels for use in the building industry. After his death, Mr. Hoult's family launched a legal battle for justice and has now been awarded the undisclosed payout. As Mr. Hoult's former employer ceased trading many years ago, the family had been unable to track down its insurers. In 2008, Alida Coates from Irwin Mitchell Solicitors who represented the family discovered documents which were part of an unrelated claim, which led her to identify Zurich as the insurer. Zurich initially refused to pay out, claiming that the legal action was out of time. However, it finally backed down and agreed to an out-of-court settlement. ASBESTOS UPDATE: Court Affirms Board Ruling in Mistofsky Action ---------------------------------------------------------------- The Supreme Court, Appellate Division, Third Department, New York, affirmed the May 21, 2007 ruling of the Workers' Compensation Board, which said that William Mistofsky was entitled to an award of reduced earnings. The case is styled In the Matter of the Claim of William Mistofsky, Respondent v. Consolidated Edison Company of New York, Inc., et al., Appellants. Workers' Compensation Board, Respondent. Judges Anthony V. Cardona, John A. Lahtinen, Anthony T. Kane and Leslie E. Stein entered judgment in Case No. 504414 on Dec. 10, 2009. Mr. Mistofsky began working for the employer in 1950 and, in the course of his duties, was exposed at various times to asbestos. In 1994, he was terminated from his employment for misconduct but his employment was reinstated as the result of an arbitrator's ruling. Mr. Mistofsky testified that he stopped working for the employer in June 1996 due to breathing problems and began working for a different employer on a part-time basis as a messenger at a reduced hourly wage. He filed a claim for workers' compensation benefits in November 1996, asserting that he contracted asbestosis in the course of his work for the employer. In July 1996, after the date that Mr. Mistofsky testified he left his job with the employer for health reasons, a federal court vacated the arbitrator's award in Mr. Mistofsky's favor and determined that the 1994 termination was proper. After numerous medical examinations and hearings, in a March 19, 2003 decision, a Workers' Compensation Law Judge (hereinafter WCLJ) established the claim for the occupational diseases of pulmonary asbestosis and asbestos-related pleural disease, classified Mr. Mistofsky with a permanent partial disability and set Dec. 7, 1998 as the date of disablement. In a decision filed Jan. 7, 2004, the Workers' Compensation Board specifically noted that the employer failed to produce evidence before the WCLJ controverting Mr. Mistofsky's testimony to the effect that the reason he stopped working for the employer in June 1996 was because of breathing difficulties. The matter proceeded for further development of the causal relationship between the occupational disease Mr. Mistofsky's post-retirement reduced earnings, as well as the amount of said earnings. The employer's request for full Board review of that decision was denied and no appeal was pursued. In August 2006, the WCLJ found that, per the prior March 19, 2003 decision, Mr. Mistofsky was entitled to reduced earnings benefits subsequent to December 1998 as a result of his established occupational disease. In a May 2007 decision, the Board concluded that reduced earnings awards were proper. The employer and its third party administrator (hereinafter collectively referred to as the employer) now appealed. Leonard B. Feld, Esq., Jericho, N.Y., represented appellants. Andrew M. Cuomo, Attorney General, New York City (Iris Steel, Esq., of counsel), represented the Workers' Compensation Board, respondent. ASBESTOS UPDATE: Appeals Court OKs OneBeacon's Mandate Petition ---------------------------------------------------------------- The Court of Appeal, Second District, California, granted OneBeacon America Insurance Company's Petition for Writ of Mandate in an asbestos suit styled OneBeacon America Insurance Company, Petitioner v. The Superior Court of Los Angeles, Respondent; ITT Corporation and Grinnell, LLC, Real Parties in Interest. Judges Orville A. Armstrong, Sandy R. Kriegler, and Paul Turner entered judgment in Case No. B218321 on Dec. 8, 2009. OneBeacon had filed a mandate, certiorari and prohibition petition challenging the respondent court's July 31, 2009 order granting the summary adjudication motion of plaintiffs, ITT Corporation (f/k/a Grinnell Corporation) and Grinnell LLC (f/k/a Grinnell Corporation) and Grinnell Fire Protection Systems Company, Inc. The summary adjudication order required OneBeacon to provide separate counsel to plaintiffs in asbestos suits. The mandate petition was granted. Selman Breitman, Esq., Jeffrey C. Segal, Esq., and Iiya A. Kosten, Esq., represented OneBeacon. Morgan, Lewis & Bockius, Thomas M. Peterson, Esq., and Michel Y. Horton, Esq., represented Real Parties in Interest. ASBESTOS UPDATE: Appeal Ct. Upholds Summary Judgment in Bourque ---------------------------------------------------------------- The Court of Appeal of Louisiana, Third Circuit, upheld the ruling of the Fourteenth Judicial District Court, Parish of Calcasieu, which granted summary judgment in favor of Lake Charles Stevedores, Inc. (LCS) in an asbestos lawsuit filed by Eddie Bourque, Jr. and Cassie Bourque. The case is styled Eddie Bourque, Jr., et ux. v. Anco Insulations, Inc., et al. Judges Jimmie C. Peters, Marc T. Amy and Michael G. Sullivan entered judgment in Case No. 09-693 on Dec. 9, 2009. The plaintiffs filed suit against various defendants, including LCS, the appellee in the present matter, alleging that occupational exposure to asbestos caused Mr. Bourque's malignant mesothelioma. This alleged exposure occurred during his employment period with LCS in the 1950s through the 1970s. LCS filed a Motion for Summary Judgment asserting that because Mr. Bourque's exposure to asbestos while employed with LCS occurred on a vessel situated over water, his exclusive remedy was under the Longshore and Harbor Workers' Compensation Act (LHWCA). The trial court granted LCS's summary judgment, finding that the Bourques' state claims against LCS were barred by the LHWCA. The Bourques' appealed. Mickey P. Landry, Esq., Frank Joseph Swarr, Esq., in New Orleans, Jessica M. Dean, Esq., in Dallas, represented Eddie Bourque, Jr. and Cassie Bourque. ASBESTOS UPDATE: Court OKs NSI Summary Judgment in Hogston Claim ---------------------------------------------------------------- The U.S. District Court, Eastern District of Pennsylvania, granted National Service Industries' (NSI) motion for summary judgment, in an asbestos case filed by Doris Hogston on behalf of Harry Hogston. The case is styled Doris Hogston, Executor of Estate of Harry Hogston, Plaintiff v. Allis-Chalmers Corp., et al., Defendant. District Judge Eduardo C. Robreno entered judgment in Civil Action No. 06-67847 on Dec. 3, 2009. Mrs. Hogston filed the complaint in this action on July 5, 2005, asserting claims Mr. Hogston. He had developed mesothelioma, which caused his death. Mrs. Hogston alleged that Mr. Hogston's mesothelioma was caused by exposure to asbestos at the Olin Chemical Corporation Plant at Saltville, Va. Mr. Hogston was employed at the Plant from 1958-1972 as a member of the Plant's maintenance crew. As a member of the maintenance crew, he worked with pipe covering and block insulation, which contained asbestos. The specific claims against NSI arose from the activities of North Brothers, Inc., a predecessor in interest to NSI, which was a distributor of Owens-Corning products, including asbestos- containing Kaylo pipe covering and insulation, located in the southeastern part of the United States. Mrs. Hogston alleged that there was significant circumstantial evidence which shows both that North Bros. distributed Kaylo pipe covering and insulation to the Plant during the time that Mr. Hogston was employed there and that Mr. Hogston was exposed to the Kaylo distributed by North Bros. Mrs. Hogston maintained that North Bros. was negligent in distributing the Kaylo pipe covering and insulation, rendering the conduct of North Bros. a substantial factor in causing Mr. Hogston's death. NSI moved for summary judgment. It was ordered that Mrs. Hogston's motion to strike supplement to NSI's reply memorandum in support of their motion for summary judgment was denied. Jonathan A. Smith-George, Esq., Law Offices of Jonathan A. Smith- George, Henry N. Ware, Jr., Esq., of Spotts Fain PC in Richmond, Va., Melanie Garner, Esq., of Waters Kraus LLP, in Baltimore, Peter A. Kraus, Esq., Charles S. Siegel, Esq., Emily M. Stout, Esq., of Waters & Kraus, in Dallas, Tex., represented Mrs. Hogston. Kay Millicent Brown, Esq., Dehay & Elliston, LLP in Baltimore, John P. Fishwick, Jr., Esq., Lichtenstein & Fishwick PLC in Roanoke, Va., William Nexsen, Esq., Stackhouse Nexsen & Turrietta PLLC in Norfolk, Va., Lora A. Brzezynski, Esq., Mckenna Ling Aldridge LLP in Washington, D.C., Henry N. Ware, Jr., Esq., of Spotts Fain PC in Richmond, Va., represented NSI. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Frederick, Maryland USA. Gracele D. Canilao, Leah Felisilda and Peter A. Chapman, Editors. Copyright 2010. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $575 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. 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