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C L A S S A C T I O N R E P O R T E R
Friday, April 23, 2010, Vol. 12, No. 79
Headlines
ADVANCE AMERICA: "McGinnis" Suit Against Arkansas Unit Dismissed
ADVANCE AMERICA: Discovery in "Stone" Suit Ongoing
ADVANCE AMERICA: Continues to Defend "Betts and Reuter" Suit
ADVANCE AMERICA: Continues to Defend Suit in Missouri
ADVANCE AMERICA: Appeal in "Kucan" Suit Remains Pending
ADVANCE AMERICA: Appeal in "Johnson" Suit Remains Stayed
ADVANCE AMERICA: Appeal in Pennsylvania "King" Suit Still Stayed
ADVANCE AMERICA: "Clerk" Suit Against Subsidiary Dismissed
ADVANCE AMERICA: Enters Agreement to Settle Suits vs. S.C. Unit
AGILENT TECHNOLOGIES: Settlement Final Approval Still Pending
AMERICA SERVICE: Berkowitz's Certification Ruling Appeal Pending
AMERICA SERVICE: Settles Consolidated Suit for $10.5 Million
AMERICAN EQUITY: Trial in "Stephens" Suit Scheduled for Sept. 30
AMERICAN EQUITY: California Consolidated Suit Remains Stayed
AMPAL-AMERICAN: Motion to Certify Class in Suit vs. 012 Pending
AMPAL-AMERICAN: Class Certification Pending in "Tariff" Suit
AMPAL-AMERICAN: 012 Smile Defends "Anti Spam" Violations Suit
AMPAL-AMERICAN: Certification Hearing vs. 012 Set for May 24
AMPAL-AMERICAN: 012 Defends "Web Traffic" Suit in Central Israel
AMPAL-AMERICAN: 012 Smile Defends Suit Over Call Center Charge
BRUSH ENGINEERED: Defends Small Tube's Third-Party Complaint
BRUSH ENGINEERED: Suit vs. Unit Proceeding as Individual Claim
DYNEX CAPITAL: GLS Capital's Summary Judgment Motion Pending
DYNEX CAPITAL: Second Amended Complaint Filed in New York
FORCE PROTECTION: Continues to Defend Securities Suit in S.C.
JAVELIN PHARMA: Faces Amended Consolidated Suit in Massachusetts
KINDER MORGAN: Suit Against Kinder Morgan CO2 Concluded
KINDER MORGAN: Discovery in "Going Private" Suits Ongoing
LSB INDUSTRIES: Unit Agrees to Settle Suit Over Defective Coils
MEDIACOM COMMS: Unit Continues to Defend "Ogg" Suit in Missouri
MEDIACOM COMMUNICATIONS: Faces "Knight" Suit in New York
ODYSSEY HEALTHCARE: California Court Dismisses Wage & Hour Suit
ODYSSEY HEALTHCARE: Faces Suit Over Failure to Pay Overtime
PHI INC: Motion to Dismiss Superior Offshore's Suit Pending
THRESHOLD PHARMA: Final Approval of Settlement Agreement Pending
THOR INDUSTRIES: Suits on Formaldehyde in Housing Units Pending
TREE.COM INC: "Carson" Suit Proceeding on Individual Claim Basis
TREE.COM INC: LendingTree Defends "Love" Suit in Milwaukee
TREE.COM INC: No Class Certification Yet in "Boschma" Suit
TREE.COM INC: HLC Subsidiary Defends "Gaines" Suit in California
TREE.COM INC: "Schnee" Plaintiffs Appeal Certification Denial
TREE.COM INC: Class Certification Motion Remains Pending
VALASSIS COMMS: Settlement Agreement Gets Court's Final Approval
ZIPREALTY INC: Files Counter Claim in "Williams" Suit
Asbestos Litigation
ASBESTOS UPDATE: Asbestos Found in 216 Eldorado-Reno Hotel Rooms
ASBESTOS UPDATE: PPG Industries' Settlement at $544M in March 31
ASBESTOS UPDATE: Hopedale Firm Fined $28,625 for Cleanup Breach
ASBESTOS UPDATE: Saugus Firm Fined $14,310 for Cleanup Breaches
ASBESTOS UPDATE: Thompson Action Filed on April 9 in Kanawha Co.
ASBESTOS UPDATE: Kunkel's Action Filed on April 8 in Kanawha Co.
ASBESTOS UPDATE: Carroll's Widow Launches Claim for Compensation
ASBESTOS UPDATE: Michelin Tyre Worker Awarded GBP23.3T in Payout
ASBESTOS UPDATE: Ore. DEQ Issues Notice to Revoke Able's License
ASBESTOS UPDATE: Court OKs Summary Judgment in Sedlacek, Crooks
ASBESTOS UPDATE: Appeal Court Flips Ruling in Schellinger Action
ASBESTOS UPDATE: Court Issues Split Ruling in Lichtenfels Action
ASBESTOS UPDATE: Tex. Appeal Court Upholds Ruling in Kelly-Moore
ASBESTOS UPDATE: N.C. Appeal Court Affirms Ruling in Pepper Case
ASBESTOS UPDATE: N.C. Appeal Court Affirms Ruling in Bowles Case
ASBESTOS UPDATE: CSX Corporation Still Subject to Exposure Cases
ASBESTOS UPDATE: Crane Facing 67,479 Exposure Claims at March 31
ASBESTOS UPDATE: Crane Co. Still Mulls Appeal in Baccus Verdict
ASBESTOS UPDATE: Bid in Brewer Action Still Pending in La. Court
ASBESTOS UPDATE: Plaintiffs' Bid in Woodard Action Still Pending
ASBESTOS UPDATE: Crane Filed Post-Trial Motions in Nelson, Bell
ASBESTOS UPDATE: Crane Co. Incurs $27.5M for Settlement, Defense
ASBESTOS UPDATE: Crane Long-Term Liability at $697MM at March 31
ASBESTOS UPDATE: Georgia Pacific's Bid Granted in Wooten Action
ASBESTOS UPDATE: Sealtec Otago Fined NZD30T for Safety Breaches
ASBESTOS UPDATE: Public Hearing in Eternit Case Held on April 12
ASBESTOS UPDATE: Clarence House Courtier Death Linked to Hazard
ASBESTOS UPDATE: De Havilland Worker's Death Linked to Exposure
ASBESTOS UPDATE: Health and Safety Criticized for Breaching Laws
ASBESTOS UPDATE: Former Hardie Execs Filed Appeal Last April 19
ASBESTOS UPDATE: Injury Cases Continuing Against Lockheed Martin
ASBESTOS UPDATE: Nichols Case v. 45 Firms Filed in St. Clair Co.
ASBESTOS UPDATE: Safe Environment Fined for Not Paying Employees
ASBESTOS UPDATE: N.C. Appeals Court Affirms Decision in Plummer
ASBESTOS UPDATE: Del. Court Reverses Ruling in Steppi's Lawsuit
ASBESTOS UPDATE: Court Denies Conrail's Summary Judgment Motion
*********
ADVANCE AMERICA: "McGinnis" Suit Against Arkansas Unit Dismissed
----------------------------------------------------------------
A putative class action against Advance America, Cash Advance
Centers, Inc.'s Arkansas subsidiary captioned Brenda McGinnis v.
Advance America Servicing of Arkansas, Inc. et al., has been
dismissed after the Circuit Court of Clark County, Arkansas,
approved the settlement agreement, according to the company's
March 8, 2010, Form 10-K filing with the U.S. Securities and
Exchange Commission for the year ended Dec. 31, 2009.
On Feb. 27, 2007, Brenda McGinnis filed a putative class action
alleging violations of the Arkansas usury law, the Arkansas
Deceptive Trade Practices Act, and a 2001 class action settlement
agreement entered into by the company's prior subsidiary in
Arkansas.
The complaint alleged that the company's subsidiary made usurious
loans under the Arkansas Check Cashers Act and sought
compensatory damages in an amount equal to twice the interest
paid on the deferred presentment transactions made from 2001 to
present (which could total approximately $21.4 million for
deferred presentment transactions made during that time, or
approximately $87 million in damages for all transactions
originated, processed, and serviced during that time) as well as
a declaration that the contracts are void, enforcement of the
2001 class action settlement agreement, attorneys' fees, and
costs.
On Sept. 23, 2009, the company entered into a settlement
agreement with the class representatives in connection with the
litigation. Pursuant to the terms of the settlement agreement,
the case has been dismissed and the company has been released
from any and all claims and liability in connection with deferred
presentment transactions entered into in Arkansas pursuant to the
Arkansas Check Casher's Act. The settlement agreement does not
involve an admission of wrongdoing or liability.
The court has approved the settlement agreement, and the
settlement has become final and the case has been dismissed
pending any appeals made prior to March 22, 2010.
Advance America, Cash Advance Centers, Inc. --
http://www.advanceamerica.net/-- provides cash advance services,
with approximately 2,600 centers and 71 limited licensees in 32
states, the United Kingdom, and Canada. The company offers
convenient, less-costly credit options to consumers whose needs
are not met by traditional financial institutions. The company
is a founding member of the Community Financial Services
Association of America (CFSA), whose mission is to promote laws
that provide substantive consumer protections and to encourage
responsible industry practices.
ADVANCE AMERICA: Discovery in "Stone" Suit Ongoing
--------------------------------------------------
Discovery in the matter Kerri Stone v. Advance America, Cash
Advance Centers, Inc. et al., is currently ongoing, according to
the company's March 8, 2010, Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended Dec. 31,
2009.
On July 16, 2008, Kerri Stone filed a putative class action
complaint in the Superior Court of California in San Diego
against us and our California subsidiary. The company removed
the case to the U.S. District Court for the Southern District of
California.
The amended complaint alleges violations of the California
Deferred Deposit Transaction Law and the California Unfair
Competition Law, and seeks an order requiring the company to
disgorge and/or make restitution of all amounts obtained as a
result of its allegedly illegal conduct and pay three times the
amount of damages the class members actually incurred, the loan
principal, reasonable attorney's fees and costs of suit, and
injunctive relief, and punitive damages.
The parties are engaged in discovery.
Advance America, Cash Advance Centers, Inc. --
http://www.advanceamerica.net/-- provides cash advance services,
with approximately 2,600 centers and 71 limited licensees in 32
states, the United Kingdom, and Canada. The company offers
convenient, less-costly credit options to consumers whose needs
are not met by traditional financial institutions. The company
is a founding member of the Community Financial Services
Association of America (CFSA), whose mission is to promote laws
that provide substantive consumer protections and to encourage
responsible industry practices.
ADVANCE AMERICA: Continues to Defend "Betts and Reuter" Suit
------------------------------------------------------------
Advance America, Cash Advance Centers, Inc., and its subsidiary
continue to defend a putative class action captioned Betts and
Reuter v. McKenzie Check Advance of Florida, LLC et al.,
according to the company's March 8, 2010, Form 10-K filing with
the U.S. Securities and Exchange Commission for the year ended
Dec. 31, 2009.
The company and its subsidiary, McKenzie Check Advance of
Florida, LLC, are defendants in a putative class action lawsuit
commenced by former customers, Wendy Betts and Donna Reuter, on
Jan. 11, 2001, and a third named class representative, Tiffany
Kelly, in the Circuit Court of Palm Beach County, Florida.
This putative class action alleges that McKenzie, by and through
the actions of certain officers, directors, and employees,
engaged in unfair and deceptive trade practices and violated
Florida's criminal usury statute, the Florida Consumer Finance
Act, and the Florida Racketeer Influenced and Corrupt
Organizations Act.
The suit seeks unspecified damages, and the company could be
required to refund fees and/or interest collected, refund the
principal amount of cash advances, pay multiple damages, and pay
other monetary penalties.
Ms. Reuter's claim has been held to be subject to binding
arbitration, which the company expects to proceed in parallel
with this case. However, the trial court has denied the
company's motion to compel arbitration of Ms. Kelly's claims, the
substituted named plaintiff, and the company has appealed that
decision.
Advance America, Cash Advance Centers, Inc. --
http://www.advanceamerica.net/-- provides cash advance services,
with approximately 2,600 centers and 71 limited licensees in 32
states, the United Kingdom, and Canada. The company offers
convenient, less-costly credit options to consumers whose needs
are not met by traditional financial institutions. The company
is a founding member of the Community Financial Services
Association of America (CFSA), whose mission is to promote laws
that provide substantive consumer protections and to encourage
responsible industry practices.
ADVANCE AMERICA: Continues to Defend Suit in Missouri
-----------------------------------------------------
Advance America, Cash Advance Centers, Inc., and its subsidiary
continue to defend a putative class action captioned Hooper and
Vaughn v. Advance America, Cash Advance Centers of Missouri,
Inc., according to the company's March 8, 2010, Form 10-K filing
with the U.S. Securities and Exchange Commission for the year
ended Dec. 31, 2009.
On March 10, 2008, Trishia Hooper and Josephine Vaughn filed a
putative class action lawsuit in the U.S. District Court for the
Western District of Missouri against the company's subsidiary
Advance America, Cash Advance Centers of Missouri, Inc.
The action alleges that the arbitration clause and class action
waiver in our subsidiary's customer loan agreements are
unconscionable, that our subsidiary's practices violate the
Missouri statutes governing unfair and deceptive trade practices,
interest rates, loan renewals, debt reduction, and consideration
of borrower's ability to repay.
The lawsuit seeks certification as a class action, unspecified
monetary damages, a declaratory judgment that the arbitration
clause and class action waiver is unconscionable, and injunctive
relief.
Advance America, Cash Advance Centers, Inc. --
http://www.advanceamerica.net/-- provides cash advance services,
with approximately 2,600 centers and 71 limited licensees in 32
states, the United Kingdom, and Canada. The company offers
convenient, less-costly credit options to consumers whose needs
are not met by traditional financial institutions. The company
is a founding member of the Community Financial Services
Association of America (CFSA), whose mission is to promote laws
that provide substantive consumer protections and to encourage
responsible industry practices.
ADVANCE AMERICA: Appeal in "Kucan" Suit Remains Pending
-------------------------------------------------------
Advance America, Cash Advance Centers, Inc.'s appeal on the
ruling that the arbitration clause in the matter Kucan et al. v.
Advance America, Cash Advance Centers of North Carolina, Inc. et
al., is unenforceable, remains pending, according to the
company's March 8, 2010, Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended Dec. 31,
2009.
On July 27, 2004, John Kucan, Welsie Torrence, and Terry Coates,
each of whom was a customer of Republic Bank & Trust Company, the
lending bank for whom the company previously marketed, processed,
and serviced cash advances in North Carolina, filed a putative
class action lawsuit in the General Court of Justice for the
Superior Court Division for New Hanover County, North Carolina
against the company and Mr. William M. Webster IV, Chairman of
the company's Board of Directors and its former Chief Executive
Officer, alleging, among other things, that the relationship
between the company's North Carolina subsidiary and Republic was
a "rent a charter" relationship and therefore Republic was not
the "true lender" of the cash advances it offered.
The lawsuit also claims that the cash advances were made,
administered and collected in violation of numerous North
Carolina consumer protection laws. The lawsuit seeks an
injunction barring the subsidiary from doing business in North
Carolina, the return of the principal amount of the cash advances
made to the plaintiff class since August 2001, the return of any
interest or fees associated with those advances, treble damages,
attorneys' fees and other unspecified costs.
The company sought to enforce the arbitration provisions in the
customer agreements and in June 2009, the trial court granted
class certification and ruled that the arbitration clause is
unenforceable.
The company is appealing this ruling.
Advance America, Cash Advance Centers, Inc. --
http://www.advanceamerica.net/-- provides cash advance services,
with approximately 2,600 centers and 71 limited licensees in 32
states, the United Kingdom, and Canada. The company offers
convenient, less-costly credit options to consumers whose needs
are not met by traditional financial institutions. The company
is a founding member of the Community Financial Services
Association of America (CFSA), whose mission is to promote laws
that provide substantive consumer protections and to encourage
responsible industry practices.
ADVANCE AMERICA: Appeal in "Johnson" Suit Remains Stayed
--------------------------------------------------------
The appeal on the ruling compelling the purported class
representatives in the matter Sharlene Johnson, Helena Love and
Bonny Bleacher v. Advance America, Cash Advance Centers, Inc. et
al., to arbitrate their claims on an individual basis, remains
stayed.
On Aug. 1, 2007, Sharlene Johnson, Helena Love, and Bonny
Bleacher filed a putative class action lawsuit in the U.S.
District Court, Eastern District of Pennsylvania against the
company and two of its subsidiaries alleging that the company
provided lines of credit to borrowers in Pennsylvania without a
license required under Pennsylvania law and with interest and
fees in excess of the amounts permitted by Pennsylvania law.
The complaint seeks, among other things, a declaratory judgment
that the monthly participation fee charged to customers with a
line of credit is illegal, an injunction prohibiting the
collection of the monthly participation fee, and the payment of
damages equal to three times the monthly participation fees paid
by customers since June 2006, which could total approximately
$135 million in damages, plus attorneys' fees and costs.
In January 2008, the trial court entered an order compelling the
purported class representatives to arbitrate their claims on an
individual basis, unless determined otherwise by the arbiter.
All parties appealed that order and the appeal has been stayed
pending a decision from the United States Supreme Court in Stolt-
Nielsen S.A. v. AnimalFeeds International Corp., which is a case
involving the enforceability of arbitration clauses.
No further updates were reported in the company's March 8, 2010,
Form 10-K filing with the U.S. Securities and Exchange Commission
for the year ended Dec. 31, 2009.
Advance America, Cash Advance Centers, Inc. --
http://www.advanceamerica.net/-- provides cash advance services,
with approximately 2,600 centers and 71 limited licensees in 32
states, the United Kingdom, and Canada. The company offers
convenient, less-costly credit options to consumers whose needs
are not met by traditional financial institutions. The company
is a founding member of the Community Financial Services
Association of America (CFSA), whose mission is to promote laws
that provide substantive consumer protections and to encourage
responsible industry practices.
ADVANCE AMERICA: Appeal in Pennsylvania "King" Suit Still Stayed
----------------------------------------------------------------
The appeal on the ruling compelling the purported class
representatives in the matter Raymond King and Sandra Coates v.
Advance America, Cash Advance Centers of Pennsylvania, LLC, to
arbitrate their claims on an individual basis, remains stayed.
On Jan. 18, 2007, Raymond King and Sandra Coates, who were
customers of BankWest Inc., the lending bank for which the
company previously marketed, processed, and serviced cash
advances in Pennsylvania, filed a putative class action lawsuit
in the U.S. District Court, Eastern District of Pennsylvania
alleging various causes of action, including that our
Pennsylvania subsidiary made illegal cash advance loans in
Pennsylvania in violation of Pennsylvania's usury law, the
Pennsylvania Consumer Discount Company Act, the Pennsylvania
Unfair Trade Practices and Consumer Protection Law, the
Pennsylvania Fair Credit Extension Uniformity Act, and the
Pennsylvania Credit Services Act.
The complaint alleges that BankWest Inc. was not the "true
lender" and that the company's Pennsylvania subsidiary was the
"lender in fact."
The complaint seeks compensatory damages, attorneys' fees,
punitive damages, and the trebling of any compensatory damages.
In January 2008, the trial court entered an order compelling the
purported class representatives to arbitrate their claims on an
individual basis, unless determined otherwise by the arbiter.
All parties appealed that order and the appeal has been stayed
pending a decision from the United States Supreme Court in Stolt-
Nielsen S.A. v. AnimalFeeds International Corp.
No further updates were reported in the company's March 8, 2010,
Form 10-K filing with the U.S. Securities and Exchange Commission
for the year ended Dec. 31, 2009.
Advance America, Cash Advance Centers, Inc. --
http://www.advanceamerica.net/-- provides cash advance services,
with approximately 2,600 centers and 71 limited licensees in 32
states, the United Kingdom, and Canada. The company offers
convenient, less-costly credit options to consumers whose needs
are not met by traditional financial institutions. The company
is a founding member of the Community Financial Services
Association of America (CFSA), whose mission is to promote laws
that provide substantive consumer protections and to encourage
responsible industry practices.
ADVANCE AMERICA: "Clerk" Suit Against Subsidiary Dismissed
----------------------------------------------------------
A putative class action lawsuit against Advance America, Cash
Advance Centers, Inc.'s Pennsylvania subsidiary has been
dismissed, according to the company's March 8, 2010, Form 10-K
filing with the U.S. Securities and Exchange Commission for the
year ended Dec. 31, 2009.
On April 21, 2009, Yulon Clerk filed a putative class action
lawsuit captioned Clerk v. NCAS of Delaware, LLC, d/b/a Advance
America, Cash Advance Centers, Inc., et al., in the Court of
Common Pleas of Philadelphia County, Pennsylvania, against the
company's subsidiaries Advance America, Cash Advance Centers of
Pennsylvania, Inc. and NCAS of Delaware, LLC, as well as
BankWest, Inc., and other unrelated lenders and banks.
The complaint alleged that the practices of the company's
subsidiaries and BankWest, Inc. violated the Pennsylvania
Consumer Discount Protection Act, the Pennsylvania Loan Interest
Protection Law, and Pennsylvania Consumer Protection Laws.
The complaint sought certification of a class of individuals for
the alleged violations, a declaration that all loans made to
class members are unenforceable, injunctive relief, and monetary
damages. The complaint repeated allegations asserted in other
putative class actions filed in Pennsylvania that have been
stayed in favor of mandatory individual arbitrations.
The company removed the case to the U.S. District Court for the
Eastern District of Pennsylvania and filed a motion to compel
arbitration and stay the underlying action's proceedings.
In August 2009, the District Court issued an order severing the
claims against the individual defendants.
On Sept. 21, 2009, plaintiffs filed three separate complaints,
seeking the same relief as the April 21, 2009 complaint, against
Advance America, Cash Advance Centers of Pennsylvania, Inc., NCAS
of Delaware, LLC, and BankWest, Inc., whose defense the company
was handling pursuant to an indemnification agreement.
The case against the company's Pennsylvania subsidiary was
subsequently dismissed by consent of the parties on Nov. 11,
2009.
Advance America, Cash Advance Centers, Inc. --
http://www.advanceamerica.net/-- provides cash advance services,
with approximately 2,600 centers and 71 limited licensees in 32
states, the United Kingdom, and Canada. The company offers
convenient, less-costly credit options to consumers whose needs
are not met by traditional financial institutions. The company
is a founding member of the Community Financial Services
Association of America (CFSA), whose mission is to promote laws
that provide substantive consumer protections and to encourage
responsible industry practices.
ADVANCE AMERICA: Enters Agreement to Settle Suits vs. S.C. Unit
---------------------------------------------------------------
Advance America, Cash Advance Centers, Inc., has reached an
agreement to settle putative class actions against its subsidiary
Advance America, Cash Advance Centers of South Carolina, Inc.,
according to the company's March 8, 2010, Form 10-K filing with
the U.S. Securities and Exchange Commission for the year ended
Dec. 31, 2009.
Eight separate putative class actions have been filed in South
Carolina against the company's subsidiary Advance America, Cash
Advance Centers of South Carolina, Inc., and several other
unaffiliated defendants.
The eight actions were filed by:
(1) John and Rebecca Morgan on Aug. 27, 2007 in the Horry
County Court of Common Pleas;
(2) Margaret Horne on Sept. 6, 2007 in the Spartanburg
County Court of Common Pleas;
(3) Tawan Smalls on Sept. 10, 2007 in the Charleston County
Court of Commons Pleas;
(4) Chadric and Lisa Wiley on Sept. 27, 2007 in the
Richland County Court of Common Pleas;
(5) Mildred Weaver on Sept. 27, 2007 in the Darlington
County Court of Common Pleas;
(6) Lisa Johnson and Gilbert Herbert on Oct. 2, 2007 in the
Georgetown County Court of Common Pleas;
(7) Kimberly Kinney on Oct. 12, 2007 in the Marion County
Court of Common Pleas; and
(8) Carl G. Ferrell on Oct. 30, 2008.
The allegations and relief sought are similar in each case.
Plaintiffs allege that the company's South Carolina subsidiary
violated the South Carolina Deferred Presentment Services Act and
the Consumer Protection Code by failing to perform a credit check
and evaluate a customer's ability to repay the advance.
Each complaint seeks an injunction to prohibit the company from
continuing its operations, the return of fees and interest,
unspecified actual damages, punitive damages, and attorneys' fees
and costs.
Each of the lawsuits have been joined to ongoing litigation in
the South Carolina state court system pursuant to an order of the
South Carolina Supreme Court consolidating all cases brought
against the industry.
In December 2009, a group of industry defendants, including the
company, reached an agreement in principle, subject to reaching a
definitive agreement and obtaining court approval, for the
settlement and release of all claims brought by the South
Carolina Claimants. The company incurred a charge of
approximately $0.9 million to cover the estimated costs of that
settlement.
Advance America, Cash Advance Centers, Inc. --
http://www.advanceamerica.net/-- provides cash advance services,
with approximately 2,600 centers and 71 limited licensees in 32
states, the United Kingdom, and Canada. The company offers
convenient, less-costly credit options to consumers whose needs
are not met by traditional financial institutions. The company
is a founding member of the Community Financial Services
Association of America (CFSA), whose mission is to promote laws
that provide substantive consumer protections and to encourage
responsible industry practices.
AGILENT TECHNOLOGIES: Settlement Final Approval Still Pending
-------------------------------------------------------------
The final approval of an agreement to settle class actions
against Agilent Technologies, Inc., over its proposed acquisition
of Varian, Inc., remains pending, according to the company's
March 10, 2010, Form 10-K filing with the U.S. Securities and
Exchange Commission for the quarter ended Jan. 31, 2010.
On Aug. 5, 2009, a putative class action was filed in California
Superior Court, County of Santa Clara, entitled Feivel Gottlieb
Plan - Administrator Feivel Gottlieb Defined Benefit Pension Plan
DTD 01-01-04 v. Garry W. Rogerson, et al., No. 1-09-CV-149132.
The action was allegedly brought on behalf of a class of
shareholders of Varian, Inc., against Varian, its board of
directors, Agilent and Cobalt Acquisition Corp., a wholly owned
subsidiary of Agilent, in connection with the proposed
acquisition of Varian.
A similar action, entitled Stuart Kreisberg v. Garry W. Rogerson,
et al., No. 1-09-CV-149383, was filed in the same court on Aug.
7, 2009.
The actions were subsequently consolidated under the caption In
re Varian, Inc. Shareholder Litigation, Lead Case No. 1-09-CV-
149132, and a consolidated amended complaint was filed on Aug.
14, 2009.
The consolidated amended complaint is also filed on behalf of an
alleged class of Varian shareholders against Varian, its
directors, Agilent and Cobalt.
The consolidated amended complaint alleges that Varian's
directors breached their fiduciary duties in connection with the
proposed acquisition and asserts, among other things, that the
price and other terms are unfair, that Varian's directors have
engaged in self-dealing, and that the disclosures in Varian's
Aug. 7, 2009 proxy filing are inadequate. Agilent and Cobalt are
alleged to have aided and abetted the Varian directors' purported
breaches of fiduciary duties.
Plaintiffs seek injunctive and other relief, including attorneys'
fees and costs.
On Aug. 19, 2009, another substantially similar putative class
action, entitled Hawaii Laborers Pension Fund v. Varian, Inc., et
al., No. 1-09-CV-150234, was filed in the same court against
Varian, its directors, and Agilent. Like the consolidated
amended complaint, it asserts claims on behalf of a class of
Varian shareholders, alleges that Varian's directors breached
their fiduciary duties in connection with the proposed
acquisition by, inter alia, failing to value Varian properly,
agreeing to improper deal terms, engaging in self-dealing and
making misleading disclosures, alleges that Agilent aided and
abetted those purported breaches of fiduciary duties, and seeks
injunctive and other relief (including attorneys' fees and
costs).
On Sept. 25, 2009, the parties signed a memorandum of
understanding to settle the class actions.
The settlement provides, among other things, that:
(i) Varian would make certain agreed-upon disclosures
designed to supplement those contained in its
definitive proxy statement filed on Aug. 20, 2009;
(ii) the litigation will be dismissed with prejudice as to
all defendants;
(iii) defendants believe the claims are without merit and
continue to deny liability, but agree to settle in
order to avoid the potential cost and distraction of
continued litigation and to eliminate any risk of any
delay to the acquisition; and
(iv) plaintiffs' counsel may seek fees and costs of up to
$625,000, subject to court approval.
There is to be no payment of money to the alleged class members.
The settlement is subject to execution and delivery of a
stipulation of settlement and other definitive documentation,
confirmatory discovery, the closing of the acquisition, notice to
stockholders, and court approval.
Agilent Technologies, Inc. -- http://www.agilent.com/-- is a
measurement company providing bio-analytical and electronic
measurement solutions to the communications, electronics, life
sciences and chemical analysis industries. The company operates
in two business segments: electronic measurement business and the
bio-analytical measurement business.
AMERICA SERVICE: Berkowitz's Certification Ruling Appeal Pending
----------------------------------------------------------------
The appeal of the plaintiff on the ruling of the Court of Common
Pleas of Philadelphia County, Trial Division, denying class
certification in the matter Andrew Berkowitz, M.D., Individually
and on behalf of all others similarly situated v. Prison Health
Services, Inc. and City of Philadelphia, remains pending.
On or about Aug. 2, 2006, plaintiff, an individual physician
independent contractor in Philadelphia, Pennsylvania, filed a
putative class action suit against Prison Health Services, Inc.,
a subsidiary of America Service Group Inc., and the City of
Philadelphia in the Court of Common Pleas of Philadelphia County,
Trial Division, seeking unspecified damages for the class, but
damages in the amount of approximately $10,000 individually.
Plaintiff alleges that he provided services to inmates in the
Philadelphia Prison System at the request of the defendants and
that the defendants breached the alleged contractual duties owed
to him by paying an amount alleged to be less than the full
amount plaintiff billed for his medical services.
On Sept. 22, 2006, the City filed a New Matter Crossclaim against
PHS alleging breach of contract, negligence and seeking
indemnification. On Sept. 29, 2006, PHS filed its Answer to
plaintiff's complaint, which Answer included a crossclaim against
the City for contribution and indemnification.
The plaintiff filed his motion for class certification on Oct. 1,
2007; and PHS and the City responded to this motion.
On Jan. 16, 2009, the court denied the plaintiff's motion for
class certification.
The plaintiff has appealed the trial court's ruling, according to
America Service's March 8, 2010, Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended Dec. 31,
2009.
America Service Group Inc. -- http://www.asgr.com/-- provides
correctional healthcare services in the United States. America
Service Group Inc., through its subsidiaries, provides a wide
range of healthcare programs to government agencies for the
medical care of inmates.
AMERICA SERVICE: Settles Consolidated Suit for $10.5 Million
------------------------------------------------------------
America Service Group Inc., has agreed to settle a consolidated
action $10.5 million, according to the company's March 8, 2010,
Form 10-K filing with the U.S. Securities and Exchange Commission
for the year ended Dec. 31, 2009.
On April 6, 2006, plaintiffs filed the first of four similar
securities class action lawsuits in the U.S. District Court for
the Middle District of Tennessee against the company and the
company's Chief Executive Officer, at that time, and Chief
Financial Officer.
Plaintiffs' allegations in these class action lawsuits are
substantially identical and generally allege on behalf of a
putative class of individuals who purchased the company's common
stock between Sept. 24, 2003 and March 16, 2006 that, prior to
the company's announcement of the Audit Committee investigation,
the company and/or the company's Chief Executive Officer, at that
time, and Chief Financial Officer violated Sections 10(b) and
20(a) of the Securities and Exchange Act of 1934 and SEC Rule
10b-5 by making false and misleading statements, or concealing
information about the company's business, forecasts and financial
performance.
The complaints seek certification as a class action, unspecified
compensatory damages, attorneys' fees and costs, and other
relief.
By order dated Aug. 3, 2006, the district court consolidated the
lawsuits into one consolidated action and on Oct. 31, 2006,
plaintiff filed an amended complaint adding Secure Pharmacy Plus,
LLC, Enoch E. Hartman III and Grant J. Bryson as defendants.
Enoch E. Hartman III is a former employee of the company and SPP
and Grant J. Bryson is a former employee of SPP.
The amended complaint also generally alleges that defendants made
false and misleading statements concerning the company's business
which caused the company's securities to trade at inflated prices
during the class period.
Plaintiff seeks an unspecified amount of damages in the form of:
(i) restitution;
(ii) compensatory damages, including interest; and
(iii) reasonable costs and expenses.
Defendants moved to dismiss the amended complaint on Jan. 19,
2007, and the parties completed the briefs on the motion in May
2007.
On March 31, 2009, the Court ruled on the defendants' motion to
dismiss, granting it in part and denying it in part.
While the Court's ruling dismissed significant portions of
plaintiffs' amended complaint and, as a result, narrowed the
scope of plaintiffs' claims, none of the defendants were
dismissed from the case and several of plaintiffs' claims under
Sections 10(b) and 20(a) of the Securities and Exchange Act of
1934 and SEC Rule 10b-5 remain.
The parties were not in agreement as to the scope of the Court's
order and defendants filed a motion to confirm which claims the
Court dismissed in its March 31, 2009 ruling. The Court granted
defendants' motion to confirm the scope of the dismissal order on
July 20, 2009, ruling that certain of Plaintiff's claims had been
in fact dismissed.
The Court also confirmed, however, that certain other claims
remained viable.
On July 22, 2009, the Court administratively closed the
shareholder litigation case, while the parties pursued mediation
of this matter.
On Feb. 19, 2010, the parties agreed to the terms of a mediator's
proposal to settle all of the claims in this lawsuit.
The settlement, which is subject to final documentation as well
as approval by the Court, provides for payment by the company of
$10.5 million and issuance by the Company of 300,000 shares of
common stock and would lead to a dismissal with prejudice of all
claims against all defendants in the litigation. The preliminary
total value of the settlement, based upon the Company's closing
share price for its common stock of $15.42 per share on Feb. 19,
2010, is approximately $15.1 million.
As such, the company has recorded a reserve of $15.1 million,
which has been included in accrued expenses in the company's
consolidated balance sheet as of Dec. 31, 2009. The final value
of the settlement will be determined based upon the company's
closing share price at the time of final approval of the
settlement by the Court.
The settlement provides for price protection to the plaintiffs in
the event the closing share price is below $14.65 per share at
the time of final approval of the settlement by the Court. In
such event, the company would pay in cash the difference between
the share value at the time of final approval and $14.65 per
share. The parties are formalizing the terms of the settlement
through a written agreement which will be executed by the parties
and presented to the Court for final approval. Upon final
approval of the Court and payment of the settlement amount, the
company will consider this matter closed.
America Service Group Inc. -- http://www.asgr.com/-- provides
correctional healthcare services in the United States. America
Service Group Inc., through its subsidiaries, provides a wide
range of healthcare programs to government agencies for the
medical care of inmates.
AMERICAN EQUITY: Trial in "Stephens" Suit Scheduled for Sept. 30
----------------------------------------------------------------
The San Luis Obispo Superior Court, California, has set a
Sept. 30, 2010, trial in the class action captioned Stephens v.
American Equity Investment Life Insurance Company, et. al.,
according to the company's March 10, 2010, Form 10-K filing with
the U.S. Securities and Exchange Commission for the year ended
Dec. 31, 2009.
The complaint was filed Nov. 29, 2004. The plaintiffs represent
a class of individuals who are California residents and who
either purchased their annuity from the company through a co-
defendant marketing organization or who purchased one of a
defined set of particular annuities issued by the company.
The named plaintiffs in this case are: Chalys M. Stephens and
John P. Stephens.
Plaintiffs seek injunctive relief and restitution on behalf of
all class members under California Business & Professions Code
section 17200 et seq.; compensatory damages for breach of
contract and breach of fiduciary duty; other pecuniary damages
under California Civil Code section 1750 and California Welfare &
Institutions Codes section 15600 et seq.; and punitive damages
under common law causes of action for fraud and breach of the
covenant of good faith and fair dealing.
On Nov. 3, 2008, the court issued an order certifying the class.
The case is set for trial September 30, 2010, and the company may
seek to decertify the entire class after further discovery into
the merits of the case.
American Equity Investment Life Holding Company, through its
wholly-owned operating subsidiaries, is a full service
underwriter of fixed annuity and life insurance products, with a
primary emphasis on the sale of index and fixed rate annuities.
AMERICAN EQUITY: California Consolidated Suit Remains Stayed
------------------------------------------------------------
The matter In re American Equity Annuity Practices and Sales
Litigation remains stayed until the U.S. District Court for the
Central District of California determines whether plaintiffs'
experts' opinions are admissable, according to American Equity
Investment Life Holding Co.'s March 10, 2010, Form 10-K filing
with the U.S. Securities and Exchange Commission for the year
ended Dec. 31, 2009.
The suit is a consolidated action involving several lawsuits
filed by individuals, and the individuals are seeking class
action status for a national class of purchasers of annuities
issued by the company. The named plaintiffs in this consolidated
case are Bernard McCormack, Gust Anagnostis by and through Gary
S. Anagnostis and Robert C. Anagnostis, Regina Bush by and
through Sharon Schipiour, Lenice Mathews by and through Mary Ann
Maclean and George Miller.
The allegations generally attack the suitability of sales of
deferred annuity products to persons over the age of 65.
The plaintiffs seek recessionary and injunctive relief including
restitution and disgorgement of profits on behalf of all class
members under California Business & Professions Code section
17200 et seq. and Racketeer Influenced and Corrupt Organizations
Act; compensatory damages for breach of fiduciary duty and aiding
and abetting of breach of fiduciary duty; unjust enrichment and
constructive trust; and other pecuniary damages under California
Civil Code section 1750 and California Welfare & Institutions
Codes section 15600 et seq.
The action is effectively stayed while the court determines
whether plaintiffs' experts' opinions are admissable.
American Equity Investment Life Holding Company, through its
wholly-owned operating subsidiaries, is a full service
underwriter of fixed annuity and life insurance products, with a
primary emphasis on the sale of index and fixed rate annuities.
AMPAL-AMERICAN: Motion to Certify Class in Suit vs. 012 Pending
---------------------------------------------------------------
A motion to certify a class action against several international
telephony companies, including 012 Smile Communications Ltd.,
remains pending, according to Ampal-American Israel Corp.'s March
8, 2010, Form 10-K filing with the U.S. Securities and Exchange
Commission for the year ended Dec. 31, 2009.
012 Smile is an Ampal-American subsidiary.
In April 2008, a motion to certify a class action was filed with
various District Courts in Israel against several international
telephony companies including 012, with respect to prepaid
calling card services.
The plaintiffs allege that:
(i) the defendants unlawfully charged consumers in excess
of the tariffs published by them,
(ii) the prepaid calling cards provide an average of 50% of
the units of time indicated to the purchasers of the
cards,
(iii) the defendants deducted from the prepaid calling card
the time spent when a user unsuccessfully attempts to
make a call utilizing the card,
(iv) the defendants calculated and collected payment not by
units of round minutes indicated,
(v) the defendants provided misleading information about
the number of "units" on the card, and
(vi) the defendants formed a cartel that arranged and raised
the prices of calling cards.
In the event the lawsuit is certified as a class action, the
total amount claimed against 012 is NIS226.4 million
(approximately $60 million). 012 replied to the motion on April
2009, and the court is currently awaiting the filing of final
summaries by the parties before granting its decision.
Ampal-American Israel Corporation -- http://www.ampal.com/-- and
its subsidiaries acquire interests primarily in businesses
located in the State of Israel or that are Israel-related. Ampal
is seeking opportunistic situations in a variety of industries,
with a focus on energy, chemicals, communication and related
sectors. Ampal's goal is to develop or acquire majority
interests in businesses that are profitable and generate
significant free cash flow that Ampal can control.
AMPAL-AMERICAN: Class Certification Pending in "Tariff" Suit
------------------------------------------------------------
A motion to certify a class action against 012 Smile
Communications Ltd., in connection to its monthly tariffs for
Internet services remains pending, according to Ampal-American
Israel Corp.'s March 8, 2010, Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended Dec. 31,
2009.
012 is Ampal-American's subsidiary.
In November 2008, a motion to certify a class action was filed
with the Tel Aviv District Court in Israel against 012.
The action alleges that 012 unlawfully raised the monthly tariffs
for its Internet services.
The total amount of the claim is NIS 81.5 million (approximately
$21.6 million). 012 replied to the motion on May 2009.
The motion was scheduled to be heard on March 16, 2010.
Ampal-American Israel Corporation -- http://www.ampal.com/-- and
its subsidiaries acquire interests primarily in businesses
located in the State of Israel or that are Israel-related. Ampal
is seeking opportunistic situations in a variety of industries,
with a focus on energy, chemicals, communication and related
sectors. Ampal's goal is to develop or acquire majority
interests in businesses that are profitable and generate
significant free cash flow that Ampal can control.
AMPAL-AMERICAN: 012 Smile Defends "Anti Spam" Violations Suit
-------------------------------------------------------------
012 Smile Communications Ltd., defends a suit alleging violation
of Israeli "anti spam" law in the Central District Court in
Israel, according to Ampal-American Israel Corp.'s March 8, 2010,
Form 10-K filing with the U.S. Securities and Exchange Commission
for the year ended Dec. 31, 2009.
012 is Ampal-American's subsidiary.
In November 2009, a motion to certify a class action was filed
against 012 with the Central District Court in Israel.
Together with the filing of the motion, the plaintiff filed a
motion for a temporary restrictive order to prevent 012 from
deleting or changing data from its database with regard to the
plaintiff's claims in the motion. The motion alleges that 012
has violated the Israeli "anti spam" law by sending advertising
materials to its customers.
The amount of the plaintiff's personal claim is set at NIS 10,000
(approximately $2,650). The estimated amount of the entire claim
is yet to be known.
On Nov. 29, 2009, the court granted a temporary order which
prevents 012 from deleting or changing data from its database
with regard to specific messages which according to the motion
were sent by the plaintiff to 012. 012 filed its response to the
motion on February 2010. The motion was scheduled to be heard on
March 28, 2010.
Ampal-American Israel Corporation -- http://www.ampal.com/-- and
its subsidiaries acquire interests primarily in businesses
located in the State of Israel or that are Israel-related. Ampal
is seeking opportunistic situations in a variety of industries,
with a focus on energy, chemicals, communication and related
sectors. Ampal's goal is to develop or acquire majority
interests in businesses that are profitable and generate
significant free cash flow that Ampal can control.
AMPAL-AMERICAN: Certification Hearing vs. 012 Set for May 24
------------------------------------------------------------
A motion to certify a class action against 012 Smile
Communications Ltd., in relation to its collection expenses
charged to customers, is set for May 24, 2010, according to
Ampal-American Israel Corp.'s March 8, 2010, Form 10-K filing
with the U.S. Securities and Exchange Commission for the year
ended Dec. 31, 2009.
012 is Ampal-American's subsidiary.
In November 2009, a motion to certify a class action was filed
against 012 with the Tel-Aviv District Court in Israel.
The motion alleges that 012 unlawfully charges its customers who
do not pay their debts on time with collection expenses.
The estimated amount of the entire claim is NIS 21.75 Million
(approximately $5.8 million). 012 has not yet replied to the
motion. The motion is scheduled to be heard on May 24, 2010.
Ampal-American Israel Corporation -- http://www.ampal.com/-- and
its subsidiaries acquire interests primarily in businesses
located in the State of Israel or that are Israel-related. Ampal
is seeking opportunistic situations in a variety of industries,
with a focus on energy, chemicals, communication and related
sectors. Ampal's goal is to develop or acquire majority
interests in businesses that are profitable and generate
significant free cash flow that Ampal can control.
AMPAL-AMERICAN: 012 Defends "Web Traffic" Suit in Central Israel
----------------------------------------------------------------
012 Smile Communications Ltd., defends a suit alleging that its
unlawfully intervenes in web traffic, according to Ampal-American
Israel Corp.'s March 8, 2010, Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended Dec. 31,
2009.
012 is Ampal-American's subsidiary.
In December 2009, a motion to certify a class action was filed
against 012 with the Central District Court in Israel.
The motion alleges that 012 unlawfully intervenes with web
traffic, especially as it relates to Peer to Peer websites.
The estimated amount of the entire claim is NIS 40 Million
(approximately $10.6 million).
012 has not yet replied to the motion.
Ampal-American Israel Corporation -- http://www.ampal.com/-- and
its subsidiaries acquire interests primarily in businesses
located in the State of Israel or that are Israel-related. Ampal
is seeking opportunistic situations in a variety of industries,
with a focus on energy, chemicals, communication and related
sectors. Ampal's goal is to develop or acquire majority
interests in businesses that are profitable and generate
significant free cash flow that Ampal can control.
AMPAL-AMERICAN: 012 Smile Defends Suit Over Call Center Charge
--------------------------------------------------------------
012 Smile Communications Ltd., defends a suit relating to
charging customers when placing calls to 012's support center,
according to Ampal-American Israel Corp.'s March 8, 2010, Form
10-K filing with the U.S. Securities and Exchange Commission for
the year ended Dec. 31, 2009.
012 is Ampal-American's subsidiary.
In January 2010, a motion to certify a class action was filed
against 012, 012's subsidiary, 012 Telecom Ltd., and others with
the Central District Court in Israel.
The motion alleges that 012 unlawfully charges its customers when
placing calls to 012's support center.
The total amount of the action against 012 and its subsidiary is
approximately NIS 48.6 million (approximately $12.9 million).
012's response to the motion was due March 21, 2010.
Ampal-American Israel Corporation -- http://www.ampal.com/-- and
its subsidiaries acquire interests primarily in businesses
located in the State of Israel or that are Israel-related. Ampal
is seeking opportunistic situations in a variety of industries,
with a focus on energy, chemicals, communication and related
sectors. Ampal's goal is to develop or acquire majority
interests in businesses that are profitable and generate
significant free cash flow that Ampal can control.
BRUSH ENGINEERED: Defends Small Tube's Third-Party Complaint
------------------------------------------------------------
Brush Engineered Materials Inc., continues to defend an amended
third-party complaint filed by Small Tube Manufacturing Corp. in
relation to a purported class action over beryllium exposure,
according to the company's March 8, 2010, Form 10-K filing with
the U.S. Securities and Exchange Commission for the year ended
Dec. 31, 2009.
A purported class action styled Gary Anthony v. Small Tube
Manufacturing Corporation d/b/a Small Tube Products Corporation,
Inc., et al., was filed in the Court of Common Pleas of
Philadelphia County, Pennsylvania, case number 000525, on Sept.
7, 2006.
The case was removed to the U.S. District Court for the Eastern
District of Pennsylvania, case number 06-CV-4419, on Oct. 4,
2006.
The only named plaintiff is Gary Anthony.
The defendants are Small Tube Manufacturing Corporation, d/b/a
Small Tube Products Corporation, Inc.; Admiral Metals Inc.; Tube
Methods, Inc.; and Cabot Corporation.
The plaintiff purports to sue on behalf of a class of current and
former employees of the U.S. Gauge facility in Sellersville,
Pennsylvania who have ever been exposed to beryllium for a period
of at least one month while employed at U.S. Gauge. The
plaintiff has brought claims for negligence.
Plaintiff seeks the establishment of a medical monitoring trust
fund, cost of publication of approved guidelines and procedures
for medical screening and monitoring of the class, attorneys'
fees and expenses. Defendant Tube Methods, Inc. filed a third-
party complaint against Brush Wellman Inc. in that action on Nov.
15, 2006.
Tube Methods alleges that Brush supplied beryllium-containing
products to U.S. Gauge, and that Tube Methods worked on those
products, but that Brush is liable to Tube Methods for
indemnification and contribution. Brush moved to dismiss the
Tube Methods complaint on Dec.r 22, 2006.
On Jan. 12, 2007, Tube Methods filed an amended third-party
complaint, which Brush moved to dismiss on Jan. 26, 2007;
however, the Court denied the motion on Sept. 28, 2007.
Brush filed its answer to the amended third-party complaint on
Oct. 19, 2007.
On Nov. 14, 2007, two of the defendants filed a joint motion for
an order permitting discovery to make the threshold determination
of whether plaintiff is sensitized to beryllium.
On Feb. 29, 2008, Brush filed a motion for summary judgment based
on plaintiff's lack of any substantially increased risk of CBD.
Oral argument on this motion took place on June 13, 2008. On
Sept. 30, 2008, the court granted the motion for summary judgment
in favor of all of the defendants and dismissed plaintiff's class
action complaint.
On Oct. 29, 2008, plaintiff filed a notice of appeal.
The Court of Appeals had granted a motion to stay the appeal due
to the bankruptcy of one of the appellees, Millennium
Petrochemicals.
On April 3, 2009, Small Tube Manufacturing filed a motion for
relief in bankruptcy court from the automatic stay, asking that
the bankruptcy court modify the stay to allow Small Tube
Manufacturing's indemnification claim against Millennium
Petrochemicals and the Anthony case to proceed to final judgment,
including all appeals.
On May 14, 2009, the bankruptcy court approved a stipulation and
order modifying the automatic stay to permit Millennium
Petrochemicals and Small Tube Manufacturing to participate in the
appeal.
On May 27, 2009, Small Tube Manufacturing filed an unopposed
motion with the Court of Appeals to lift the stay, which the
court granted on June 22, 2009.
On July 29, 2009, the company and the other appellees filed their
brief in the Court of Appeals.
The Court of Appeals heard oral arguments on Jan. 11, 2010, and
the matter is now under submission.
Brush Engineered Materials Inc. -- http://www.beminc.com/--
through its wholly-owned subsidiaries, supplies highly engineered
advanced enabling materials to global markets. Products include
precious and non-precious specialty metals, inorganic chemicals
and powders, specialty coatings, specialty engineered beryllium
alloys, beryllium and beryllium composites, and engineered clad
and plated metal systems.
BRUSH ENGINEERED: Suit vs. Unit Proceeding as Individual Claim
--------------------------------------------------------------
A purported class action against Brush Engineered Materials
Inc.'s subsidiary, Brush Wellman Inc., is now proceeding as an
individual claim after the Court of Appeals issued a ruling
affirming the denial of class certification, according to the
company's March 8, 2010, Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended Dec. 31,
2009.
A purported class action captioned Manuel Marin, et al. v. Brush
Wellman Inc., was filed in Superior Court of California, Los
Angeles County, case number BC299055, on July 15, 2003. The
named plaintiffs were Manuel Marin, Lisa Marin, Garfield Perry
and Susan Perry. The defendants were Brush Wellman, Appanaitis
Enterprises, Inc., and Doe Defendants 1 through 100.
A First Amended Complaint was filed on September 15, 2004, naming
five additional plaintiffs. The five additional named plaintiffs
were Robert Thomas, Darnell White, Leonard Joffrion, James Jones
and John Kesselring. The plaintiffs alleged that they had been
sensitized to beryllium while employed at the Boeing Company.
The plaintiffs' wives claimed loss of consortium. The plaintiffs
purported to represent two classes of approximately 250 members
each, one consisting of workers who worked at Boeing or its
predecessors and were beryllium sensitized and the other
consisting of their spouses. They brought claims for negligence,
strict liability - design defect, strict liability - failure to
warn, fraudulent concealment, breach of implied warranties, and
unfair business practices.
The plaintiffs sought injunctive relief, medical monitoring,
medical and health care provider reimbursement, attorneys' fees
and costs, revocation of business license, and compensatory and
punitive damages.
Messrs. Marin, Perry, Thomas, White, Joffrion, Jones and
Kesselring represented current and past employees of Boeing in
California; and Ms. Marin and Ms. Perry were spouses. Defendant
Appanaitis Enterprises, Inc. was dismissed on May 5, 2005.
Plaintiffs' motion for class certification, which the company
opposed, was heard by the court on Feb. 8, 2008, and the motion
was denied by the court on May 7, 2008. Plaintiffs filed a
notice of appeal on May 20, 2008. Oral argument took place on
July 22, 2009.
On Aug. 24, 2009, the Court of Appeals issued a decision
affirming the denial of class certification. Messrs. Thomas and
White were dismissed as plaintiffs due to their deaths.
Plaintiffs did not appeal the decision of the Court of Appeals.
The case is now proceeding as an individual claim involving five
plaintiffs (Messrs. Marin, Perry and Kesselring and the spouses
of Messrs. Marin and Perry). Messrs. Jones and Joffrion were
dismissed from this case because they already had individual
claims pending. The Marin case has been stayed pending the
trials of the Jones and Joffrion cases, which are scheduled for
March 30, 2010.
Brush Engineered Materials Inc. -- http://www.beminc.com/--
through its wholly-owned subsidiaries, supplies highly engineered
advanced enabling materials to global markets. Products include
precious and non-precious specialty metals, inorganic chemicals
and powders, specialty coatings, specialty engineered beryllium
alloys, beryllium and beryllium composites, and engineered clad
and plated metal systems.
DYNEX CAPITAL: GLS Capital's Summary Judgment Motion Pending
------------------------------------------------------------
GLS Capital, Inc.'s motion for summary judgment on a class action
lawsuit remains pending in the Court of Common Pleas of Allegheny
County, Pennsylvania, according to Dynex Capital Inc.'s March 8,
2010, Form 10-K filing with the U.S. Securities and Exchange
Commission for the year ended Dec. 31, 2009.
GLS Capital is a subsidiary of Dynex Capital.
GLS Capital and the County of Allegheny, Pennsylvania are
defendants in a class action lawsuit filed in 1997 in the Court
of Common Pleas of Allegheny County, Pennsylvania.
Between 1995 and 1997, GLS purchased delinquent county property
tax receivables for properties located in Allegheny County.
The Pentlong Plaintiffs allege that GLS did not enjoy the same
rights as its assignor, Allegheny County, to recover from
delinquent taxpayers certain attorney fees, costs and expenses
and interest in the collection of the tax receivables. Class
action status has been certified in this matter, but a motion to
reconsider is pending.
The Pentlong litigation had been stayed pending the outcome of
similar litigation before the Pennsylvania Supreme Court in a
case in which GLS was not a defendant. The plaintiff in that
case had disputed the application of curative legislation enacted
in 2003 but retroactive to 1996 which specifically set forth the
right of owners of delinquent property tax receivables such as
GLS to collect reasonable attorney fees, costs, and interest
which were properly taxable as part of the tax debt owed. The
Pennsylvania Supreme Court has issued an opinion in favor of the
defendants in that matter, which the company believes favorably
impacts the Pentlong litigation by substantially reducing
Pentlong Plaintiffs' universe of actionable claims against GLS in
connection with the collection of the tax receivables.
Based on the opinion issued by the Pennsylvania Supreme Court,
the Court of Common Pleas requested GLS file a motion for summary
judgment and heard arguments on such motion in November 2009. As
of March 1, 2010, the court has not yet rendered a decision with
respect to such motion. Pentlong Plaintiffs have not enumerated
their damages in this matter.
Dynex Capital, Inc. -- http://www.dynexcapital.com/-- together
with its subsidiaries, is a specialty finance company organized
as a real estate investment trust that invests in loans and
securities consisting principally of single-family residential
and commercial mortgage loans.
DYNEX CAPITAL: Second Amended Complaint Filed in New York
---------------------------------------------------------
Dynex Capital Inc. and its subsidiary, MERIT Securities Corp.,
faces a second amended complaint filed in the U.S. District Court
for the Southern District of New York, according to the company's
March 8, 2010, Form 10-K filing with the U.S. Securities and
Exchange Commission for the year ended Dec. 31, 2009.
The company and MERIT Securities Corporation, a subsidiary, as
well as the former president and current Chief Operating Officer
and Chief Financial Officer of Dynex Capital are defendants in a
putative class action alleging violations of the federal
securities laws in the U.S. District Court for the Southern
District of New York by the Teamsters Local 445 Freight Division
Pension Fund.
The complaint was filed on Feb. 7, 2005, and purports to be a
class action on behalf of purchasers between February 2000 and
May 2004 of MERIT Series 12 and MERIT Series 13 securitization
financing bonds, which are collateralized by manufactured housing
loans.
After a series of rulings by the District Court and an appeal by
the company and MERIT, on Feb. 22, 2008, the U.S. Court of
Appeals for the Second Circuit dismissed the litigation against
the company and MERIT.
Teamsters filed an amended complaint on Aug. 6, 2008, with the
District Court which essentially restated the same allegations as
the original complaint and added the company's former president
and its current Chief Operating Officer as defendants.
Teamsters seeks unspecified damages and alleges, among other
things, fraud and misrepresentations in connection with the
issuance of and subsequent reporting related to the Bonds.
On Oct. 19, 2009, the District Court substantially denied the
Defendants' motion to dismiss the Teamsters' second amended
complaint.
On Dec. 11, 2009, the Defendants' filed an answer to the second
amended complaint.
The suit is "Teamsters Local 445 Freight Division Pension Fund,
et al. v. Dynex Capital, Inc., et al., Case No. 1:05-cv-01897-
HB," (S.D.N.Y.) (Baer, J.).
Representing the plaintiffs are:
Joel P. Laitman, Esq.
Christopher Lometti, Eqs.
Samuel P. Sporn, Esq.
Schoengold & Sporn, P.C., Esq.
19 Fulton Street, Suite 406
New York, NY 10038
Phone: 212-964-0046
Fax: 212-267-8137
E-mail: joel@spornlaw.com
chris@spornlaw.com
samuel@spornlaw.com
Representing the company are:
Monica Shelton Call, Esq.
Eric Harrison Feiler, Esq.
Edward Joseph Fuhr, Esq.
Terence James Rasmussen, Esq.
Joseph John Saltarelli, Esq.
Hunton & Williams, LLP
951 East Byrd Street
Richmond, VA 23219
Phone: 804-788-8632
Fax: 804-788-8218
E-mail: mcall@hunton.com
efeiler@hunton.com
efuhr@hunton.com
trasmussen@hunton.com
jsaltarelli@hunton.com
FORCE PROTECTION: Continues to Defend Securities Suit in S.C.
-------------------------------------------------------------
Force Protection, Inc., continues to defend a consolidated suit
captioned In Re Force Protection, Inc. Securities Litigation,
Action No. 2:08-cv-845-CWH, pending in the U.S. District Court
for the District of South Carolina, Charleston Division,
according to the company's March 8, 2010, Form 10-K filing with
the U.S. Securities and Exchange Commission for the year ended
Dec. 31, 2009.
On March 10, 2008, the first of ten related class action lawsuits
was filed against the company and certain of its former and
current directors or officers, on behalf of a proposed class of
investors who purchased or otherwise acquired the company's stock
during the period between Aug. 14, 2006, and Feb. 29, 2008.
The complaints seek class certification, and the allegations
include, but are not limited to, allegations that the defendants
violated the Exchange Act and made false or misleading public
statements and/or omissions concerning our business, internal
controls, and financial results.
The individual class action lawsuits were consolidated on June
10, 2008.
On Sept. 29, 2009, the court denied the defendants' motion to
dismiss the plaintiffs' consolidated complaint, and the parties
are engaging in discovery.
Force Protection, Inc. -- http://www.forceprotection.net/-- is a
leading designer, developer and manufacturer of survivability
solutions, including blast- and ballistic-protected wheeled
vehicles currently deployed by the U.S. military and its allies
to support armed forces and security personnel in conflict zones.
The company's specialty vehicles, including the Buffalo, Cougar
and related variants, are designed specifically for
reconnaissance and urban operations and to protect their
occupants from landmines, hostile fire, and improvised explosive
devices (IEDs, commonly referred to as roadside bombs). The
company also develops, manufactures, tests, delivers and supports
products and services aimed at further enhancing the
survivability of users against additional threats. In addition,
the company provides long-term life cycle support services of its
vehicles that involve development of technical data packages,
supply of spares, field and depot maintenance activities,
assignment of highly-skilled field service representatives, and
advanced on and off-road driver and maintenance training
programs.
JAVELIN PHARMA: Faces Amended Consolidated Suit in Massachusetts
----------------------------------------------------------------
Javelin Pharmaceuticals, Inc., faces a consolidated amended
shareholder class action complaint in relation to its proposed
merger with Myriad Pharmaceuticals, Inc., according to the
company's March 8, 2010, Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended Dec. 31,
2009.
On Jan. 5, 2010, the company was served with a complaint naming
the company, certain of its directors, Myriad Pharmaceuticals,
Inc., and MPI Merger Sub, Inc. as defendants in a purported class
action lawsuit styled Schnipper v. Watson, No. 09-5439, filed in
the Massachusetts Superior Court on 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 Dec. 18, 2009, among the company,
Myriad Pharmaceuticals, Inc., MPI Merger Sub, Inc. and a
stockholder representative.
Two other complaints, Parrish v. Watson, No. 10-0029 (Mass.
Super. Ct. filed Jan. 5, 2010) and Andrews v. Driscoll, No. 10-
0049 (Mass. Super. Ct. filed Jan. 6, 2010), making substantially
similar allegations, were filed against the company and certain
of the other defendants identified above following the filing of
the complaint.
On Feb. 23, 2010, a consolidated amended shareholder class action
complaint was filed in the Business Litigation Session of the
Massachusetts Superior Court for Suffolk County combining these
litigations into a single class action suit, In re Javelin
Pharmaceuticals, Inc. Shareholder Litigation, Lead Case No. 09-
5439BLS 1 (Mass. Super. Ct. filed Feb. 23, 2010).
Javelin Pharmaceuticals, Inc. --
http://www.javelinpharmaceuticals.com/-- is a specialty
pharmaceutical company that applies technologies to develop new
products and improved formulations of existing drugs that target
medical need in the pain management market. The company's
product candidates are focused on treating an array of pain
disorders ranging from acute and episodic moderate-to-severe pain
associated with cancer pain, post-operative pain, post-trauma
pain, such as orthopedic injury pain, procedural pain and burn
pain. The company's products include Dyloject (injectable
diclofenac), Ereska (intranasal ketamine, formerly PMI-150) and
Rylomine (intranasal morphine).
KINDER MORGAN: Suit Against Kinder Morgan CO2 Concluded
-------------------------------------------------------
A purported class action against Kinder Morgan CO2 Company, L.P.,
has been concluded after the 8th Judicial District Court, Union
County New Mexico, entered final judgment approving a settlement
agreement, according to Kinder Morgan, Inc.'s March 8, 2010, Form
10-K filing with the U.S. Securities and Exchange Commission for
the year ended Dec. 31, 2009.
The suit is J. Casper Heimann, Pecos Slope Royalty Trust and Rio
Petro LTD, individually and on behalf of all other private
royalty and overriding royalty owners in the Bravo Dome Carbon
Dioxide Unit, New Mexico similarly situated v. Kinder Morgan CO2
Company, L.P., No. 04-26-CL.
The case is a purported class action against Kinder Morgan CO2
alleging that it failed to pay the full royalty and overriding
royalty, collectively referred to as the royalty interests, on
the true and proper settlement value of compressed carbon dioxide
produced from the Bravo Dome unit, located in northeastern New
Mexico, during the period beginning Jan. 1, 2000.
The purported class is comprised of current and former owners,
during the period January 2000 to the present, who have private
property royalty interests burdening the oil and gas leases held
by the defendant, excluding the Commissioner of Public Lands, the
United States of America, and those private royalty interests
that are not unitized as part of the Bravo Dome unit.
On Sept. 10, 2009, the parties signed a settlement agreement
providing for:
(i) a payment of $3.2 million to the class;
(ii) a new royalty methodology pursuant to which future
royalties will be based on a price formula that is tied
in part to published crude oil prices; and
(iii) a dismissal with prejudice of all claims.
On Oct. 22, 2009, the trial court entered final judgment
approving the settlement. The time period for appeal of the
judgment has not expired and it is final for all purposes.
Accordingly, the case is concluded.
Kinder Morgan, Inc., together with its consolidated subsidiaries,
is one of the largest energy transportation and storage companies
in North America. Kinder Morgan, Inc. owns the general partner
and significant limited partner interests in Kinder Morgan Energy
Partners, L.P. (NYSE: KMP), one of the largest publicly traded
pipeline limited partnerships in the United States with an
enterprise value in excess of $20 billion. The company operates
or owns an interest in more than 35,000 miles of pipelines that
transport products such as natural gas, gasoline, crude oil and
CO2, and over 170 terminals that store petroleum products and
chemicals and handle bulk materials like coal and petroleum coke.
The company has both regulated and non-regulated operations.
KINDER MORGAN: Discovery in "Going Private" Suits Ongoing
---------------------------------------------------------
Discovery in two consolidated suits against Kinder Morgan, Inc.,
in connection with its going private transaction, is ongoing,
according to the company's March 8, 2010, Form 10-K filing with
the U.S. Securities and Exchange Commission for the year ended
Dec. 31, 2009.
Beginning on May 29, 2006, the day after the proposal for the
Going Private transaction was announced, and in the days
following, eight putative Class Action lawsuits were filed in
Harris County (Houston), Texas and seven putative Class Action
lawsuits were filed in Shawnee County (Topeka), Kansas against,
among others, Kinder Morgan, Inc., its Board of Directors, the
Special Committee of the Board of Directors, and several
corporate officers.
Texas Actions
By order of the Harris County District Court dated June 26, 2006,
each of the eight Harris County cases were consolidated into the
Crescente v. Kinder Morgan, Inc. et al case, Cause No. 2006-
33011, in the 164th Judicial District Court, Harris County,
Texas, which challenges the proposed transaction as inadequate
and unfair to Kinder Morgan, Inc.'s public stockholders.
On Sept. 8, 2006, interim class counsel filed their Consolidated
Petition for Breach of Fiduciary Duty and Aiding and Abetting in
which they alleged that Kinder Morgan, Inc.'s Board of Directors
and certain members of senior management breached their fiduciary
duties and the Sponsor Investors aided and abetted the alleged
breaches of fiduciary duty in entering into the merger agreement.
They sought, among other things, to enjoin the merger, rescission
of the merger agreement, disgorgement of any improper profits
received by the defendants, and attorneys' fees. Defendants
filed Answers to the Consolidated Petition on Oct. 9, 2006,
denying the plaintiffs' substantive allegations and denying that
the plaintiffs are entitled to relief.
Kansas Actions
By order of the District Court of Shawnee County, Kansas dated
June 26, 2006, each of the seven Kansas cases were consolidated
into the Consol. Case No. 06 C 801; In Re Kinder Morgan, Inc.
Shareholder Litigation; in the District Court of Shawnee County,
Kansas, Division 12. On Aug. 28, 2006, the plaintiffs filed
their Consolidated and Amended Class Action Petition in which
they alleged that Kinder Morgan's Board of Directors and certain
members of senior management breached their fiduciary duties and
the Sponsor Investors aided and abetted the alleged breaches of
fiduciary duty in entering into the merger agreement. They
sought, among other things, to enjoin the stockholder vote on the
merger agreement and any action taken to effect the acquisition
of Kinder Morgan and its assets by the buyout group, damages,
disgorgement of any improper profits received by the defendants,
and attorney's fees.
In late 2006, the Kansas and Texas Courts appointed the Honorable
Joseph T. Walsh to serve as Special Master in both consolidated
cases "to control all of the pretrial proceedings in both the
Kansas and Texas Class Actions arising out of the proposed
private offer to purchase the stock of the public shareholders of
Kinder Morgan, Inc." On Nov. 21, 2006, the plaintiffs in In Re
Kinder Morgan, Inc. Shareholder Litigation filed a Third Amended
Class Action Petition with Special Master Walsh. This Petition
was later filed under seal with the Kansas District Court on Dec.
27, 2006.
Following extensive expedited discovery, the Plaintiffs in both
consolidated actions filed an application for a preliminary
injunction to prevent the holding of a special meeting of
shareholders for the purposes of voting on the proposed merger,
which was scheduled for Dec. 19, 2006.
On Dec. 18, 2006, Special Master Walsh issued a Report and
Recommendation concluding, among other things, that "plaintiffs
have failed to demonstrate the probability of ultimate success on
the merits of their claims in this joint litigation."
Accordingly, the Special Master concluded that the plaintiffs
were "not entitled to injunctive relief to prevent the holding of
the special meeting of Kinder Morgan, Inc. shareholders scheduled
for Dec. 19, 2006."
Plaintiffs moved for class certification in January 2008.
In August, September and October 2008, the Plaintiffs in both
consolidated cases voluntarily dismissed without prejudice the
claims against those Kinder Morgan, Inc. directors who did not
participate in the buyout (including the dismissal of the members
of the special committee of the board of directors), Kinder
Morgan, Inc. and Knight Acquisition, Inc. In addition, on Nov.
19, 2008, by agreement of the parties, the Texas trial court
issued an order staying all proceedings in the Texas actions
until such time as a final judgment shall be issued in the Kansas
actions. The effect of this stay is that the consolidated
matters will proceed only in the Kansas trial court.
In February 2009, the parties submitted an agreed upon order
which has been entered by the Kansas trial court certifying a
class consisting of "All holders of Kinder Morgan, Inc. common
stock, during the period of Aug. 28, 2006, through May 30, 2007,
and their transferees, successors and assigns. Excluded from the
class are defendants, members of their immediate families or
trusts for the benefit of defendants or their immediate family
members, and any majority-owned affiliates of any defendant."
The parties agreed that the certification and definition of the
above class was subject to revision and without prejudice to
defendants' right to seek decertification of the class or
modification of the class definition.
The parties are currently engaged in consolidated discovery in
these matters.
Kinder Morgan, Inc., together with its consolidated subsidiaries,
is one of the largest energy transportation and storage companies
in North America. Kinder Morgan, Inc. owns the general partner
and significant limited partner interests in Kinder Morgan Energy
Partners, L.P. (NYSE: KMP), one of the largest publicly traded
pipeline limited partnerships in the United States with an
enterprise value in excess of $20 billion. The company operates
or owns an interest in more than 35,000 miles of pipelines that
transport products such as natural gas, gasoline, crude oil and
CO2, and over 170 terminals that store petroleum products and
chemicals and handle bulk materials like coal and petroleum coke.
The company has both regulated and non-regulated operations.
LSB INDUSTRIES: Unit Agrees to Settle Suit Over Defective Coils
---------------------------------------------------------------
Climate Control Business, Climate Master, Inc., has entered into
an agreement to settle a class action over the alleged sale of
defective evaporator coils, according to LSB Industries, Inc.'s
March 8, 2010, Form 10-K filing with the U.S. Securities and
Exchange Commission for the year ended Dec. 31, 2009.
Climate Master is one of LSB Industries, Inc.'s subsidiaries.
A proposed class action was filed in the Illinois state district
court in September 2007, alleging that certain evaporator coils
sold by Climate Master in the state of Illinois from 1990 to
approximately 2003 were defective.
Prior to the hearing on class certification, the trial court
granted Climate Master's motion for summary judgment and entered
judgment in favor of Climate Master and against the plaintiffs
based upon the statute of limitations and further denied class
certification as moot because there were no other class
representatives.
Prior to the appeal deadline, a settlement agreement was entered
into between the plaintiffs and Climate Master whereby the
plaintiffs waived any right to appeal the judgment in favor of
Climate Master for an insignificant amount, which consideration
has been paid by Climate Master.
LSB Industries, Inc. -- http://www.lsb-okc.com/-- is a
diversified holding company, which operates through its wholly
owned subsidiary, ThermaClime, Inc. (ThermaClime) and its
subsidiaries. The company operates in two segments: Climate
Control and Chemical. Climate Control business is engaged in the
manufacturing and selling of a range of heating, ventilation and
air conditioning (HVAC) products for use in commercial and
residential new building construction, renovation of existing
buildings and replacement of existing systems. Chemical business
is engaged in the manufacturing and selling of chemical products
produced from plants in Texas, Arkansas and Alabama for the
industrial, mining and agricultural markets.
MEDIACOM COMMS: Unit Continues to Defend "Ogg" Suit in Missouri
---------------------------------------------------------------
Mediacom LLC, one of Mediacom Communications Corporation's wholly
owned subsidiaries, continues to defend claims in a
putative class action filed by Gary and Janice Ogg.
Mediacom LLC is named as a defendant in a putative class action,
captioned Gary Ogg and Janice Ogg v. Mediacom LLC, pending in the
Circuit Court of Clay County, Missouri, originally filed in April
2001. The lawsuit alleges that Mediacom LLC, in areas where
there was no cable franchise failed to obtain permission from
landowners to place its fiber interconnection cable
notwithstanding the possession of agreements or permission from
other third parties.
While the parties continue to contest liability, there also
remains a dispute as to the proper measure of damages.
Based on a report by their experts, the plaintiffs claim
compensatory damages of approximately $14.5 million. Legal fees,
prejudgment interest, potential punitive damages and other costs
could increase that estimate to approximately $26.0 million.
Before trial, the plaintiffs proposed an alternative damage
theory of $42.0 million in compensatory damages.
Notwithstanding the verdict in the trial, the company remains
unable to reasonably determine the amount of the final liability
in this lawsuit. Prior to trial the company's experts estimated
its liability to be within the range of approximately $0.1
million to $2.3 million. This estimate did not include any
estimate of damages for prejudgment interest, attorneys' fees or
punitive damages.
On March 9, 2009, a jury trial commenced solely for the claim of
Gary and Janice Ogg, the designated class representatives.
On March 18, 2009, the jury rendered a verdict in favor of Gary
and Janice Ogg setting compensatory damages of $8,863 and
punitive damages of $35,000. The Court did not enter a final
judgment on this verdict and therefore the amount of the verdict
cannot at this time be judicially collected.
No further updates were reported in the company's March 8, 2010,
Form 10-K filing with the U.S. Securities and Exchange Commission
for the year ended Dec. 31, 2009.
Mediacom Communications Corp. -- hhtp://www.mediacomcc.com/ -- is
the nation's seventh largest cable television company and one of
the leading cable operators focused on serving the smaller cities
and towns in the United States. Mediacom Communications offers a
wide array of broadband products and services, including
traditional and advanced video services such as digital
television, VOD, DVRs, HDTV, as well as high-speed Internet
access and phone service.
MEDIACOM COMMUNICATIONS: Faces "Knight" Suit in New York
--------------------------------------------------------
Mediacom Communications Corp. faces a purported class action
entitled Jim Knight v. Mediacom Communications Corp., filed in
the U.S. District Court for the Southern District of New York,
according to the company's March 8, 2010, Form 10-K filing with
the U.S. Securities and Exchange Commission for the year ended
Dec. 31, 2009.
On March 5, 2010, a purported class action was filed in which the
company is named as the defendant.
The complaint asserts that the potential class is comprised of
all persons who purchased premium cable services from the company
and rented a cable box distributed by the company.
The plaintiff alleges that the company improperly "tie" the
rental of cable boxes to the provision of premium cable services
in violation of Section 1 of the Sherman Antitrust Act. The
plaintiff also alleges a claim for unjust enrichment and seeks
injunctive relief and unspecified damages.
Mediacom Communications Corp. -- hhtp://www.mediacomcc.com/ -- is
the nation's seventh largest cable television company and one of
the leading cable operators focused on serving the smaller cities
and towns in the United States. Mediacom Communications offers a
wide array of broadband products and services, including
traditional and advanced video services such as digital
television, VOD, DVRs, HDTV, as well as high-speed Internet
access and phone service.
ODYSSEY HEALTHCARE: California Court Dismisses Wage & Hour Suit
---------------------------------------------------------------
The U.S. District Court in the Central District of California
granted Odyssey HealthCare, Inc.'s motion to dismiss a lawsuit
alleging class-wide wage and hour issues at its California
hospice programs, according to the company's March 10, 2010, Form
10-K filing with the U.S. Securities and Exchange Commission for
the year ended Dec. 31, 2009.
The company has been named in a class action lawsuit filed on
Nov. 6, 2008, in Superior Court of California, Los Angeles County
by Charlia Cornish alleging class-wide wage and hour issues at
its California hospice programs.
The suit alleges failure to provide overtime compensation, meal
and break periods, accurate itemized wage statements, and timely
payment of wages earned upon leaving employment.
The purported class includes all persons employed by the company
in California as an admission nurse, a case manager registered
nurse, a licensed vocational nurse, a registered nurse, a home
health aide, a medical social worker, a triage coordinator, an
office manager, a patient care secretary or a spiritual counselor
at anytime on or after Nov. 6, 2004.
The lawsuit seeks payment of unpaid wages, damages, interest,
penalties and reasonable attorneys' fees and costs.
In January 2009 the company successfully moved the lawsuit to
Federal District Court in the Central District of California.
On Sept. 21, 2009, the court ruled in our favor denying
plaintiff's request to amend and granting the company's motion
for summary judgment dismissing the lawsuit in its entirety. The
plaintiff has elected not to appeal the decision dismissing the
plaintiff's lawsuit.
Odyssey HealthCare, Inc. -- http://www.odsyhealth.com/--
provides hospice care in the country in terms of both average
daily patient census and number of locations. Odyssey seeks to
improve the quality of life of terminally ill patients and their
families by providing care directed at managing pain and other
discomforting symptoms and by addressing the psychosocial and
spiritual needs of patients and their families.
ODYSSEY HEALTHCARE: Faces Suit Over Failure to Pay Overtime
-----------------------------------------------------------
Odyssey HealthCare, Inc., faces a class action lawsuit alleging
failure to pay overtime, according to the company's March 10,
2010, Form 10-K filing with the U.S. Securities and Exchange
Commission for the year ended Dec. 31, 2009.
The company has been named in a class action lawsuit filed on
Jan. 25, 2010, in the U.S. District Court Southern District of
Texas Houston Division by Bobby Blevins, a former employee,
alleging failure to pay overtime to a purported class of
similarly situated hourly-paid current and former nurse
employees.
The plaintiff seeks to recover unpaid overtime compensation,
damages and attorney fees.
Odyssey HealthCare, Inc. -- http://www.odsyhealth.com/--
provides hospice care in the country in terms of both average
daily patient census and number of locations. Odyssey seeks to
improve the quality of life of terminally ill patients and their
families by providing care directed at managing pain and other
discomforting symptoms and by addressing the psychosocial and
spiritual needs of patients and their families.
PHI INC: Motion to Dismiss Superior Offshore's Suit Pending
-----------------------------------------------------------
PHI Inc.'s motion to dismiss a purported class action brought by
Superior Offshore International Inc., remains pending in the U.S.
District Court for the District of Delaware, according to the
company's March 8, 2010, Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended Dec. 31,
2009.
The suit names the company as a defendant along with Bristow
Group Inc., ERA Helicopters, LLC, Seacor Holdings Inc., ERA Group
Inc., and ERA Aviation, Inc.
This purported class action was filed on June 12, 2009, on behalf
of a class defined to include all direct purchasers of offshore
helicopter services in the Gulf of Mexico from the defendants at
any time from Jan. 1, 2001, through Dec. 31, 2005.
The suit alleges that the defendants acted jointly to fix,
maintain, or stabilize prices for offshore helicopter services
during the above time frame in violation of the federal antitrust
laws. The plaintiff seeks unspecified treble damages, injunctive
relief, costs, and attorneys' fees.
Defendants' motion to dismiss filed on Sept. 4, 2009 is pending.
PHI Inc. -- http://www.phihelico.com/-- provides helicopter
transportation services in the Gulf of Mexico. It also provides
helicopter services to the oil and gas industry internationally,
and to non-oil and gas customers, such as health care providers
and United States governmental agencies, such as the National
Science Foundation. It also provides air medical transportation
for hospitals and emergency service agencies, where it operates
as an independent provider of medical services. PHI also
provides helicopter maintenance and repair services to certain
customers. At Dec. 31, 2009, the company owned or operated
approximately 255 aircraft domestically and internationally. PHI
operates in three segments: Oil and Gas, Air Medical and
Technical Services.
THRESHOLD PHARMA: Final Approval of Settlement Agreement Pending
----------------------------------------------------------------
The final approval of a settlement agreement resolving a second
consolidated amended complaint against Threshold Pharmaceuticals,
Inc., remains pending, according to the company's March 8, 2010,
Form 10-K filing with the U.S. Securities and Exchange Commission
for the year ended Dec. 31, 2009.
On July 5 and July 18, 2007, purported shareholder class action
complaints alleging violations of the federal securities laws
were filed against the company, its Chief Executive Officer
Harold E. Selick and former Chief Financial Officer Janet I.
Swearson, in the U.S. District Court for the Southern District of
New York.
On Sept. 14, 2007, these lawsuits, which have been consolidated
by the Court into a single proceeding, were ordered transferred
to the U.S. District Court for the Northern District of
California.
On Jan. 15, 2008, the plaintiffs filed a first consolidated
amended complaint. On July 11, 2008, the Court granted
Defendants' motions to dismiss that complaint but afforded the
plaintiffs leave to file a further amended complaint.
On Sept. 19, 2008, the plaintiffs filed a second consolidated
amended complaint, which, on behalf of an alleged class of
purchasers of the company's common stock from the date of its
initial public offering of securities on Feb. 4, 2005, through
July 14, 2006, purports to allege claims arising under Sections
11, 12(a)(2) and 15 of the Securities Act, and under Sections
10(b) and 20(a) of the Exchange Act. Plaintiffs allege generally
that the defendants violated the federal securities laws by,
among other things, making material misstatements or omissions
concerning our Phase 2 and Phase 3 clinical trials of Lonidamine
(TH-070).
On Nov. 14, 2008, Defendants moved to dismiss the second
consolidated amended complaint. On April 3, 2009, the Court
granted in part and denied in part the motions to dismiss,
dismissing with prejudice all claims arising under the Securities
Act and all claims against Ms. Swearson, while narrowing the
remaining claims.
On Oct. 30, 2009, the parties entered into a stipulation of
settlement to resolve the lawsuit.
The settlement provides for a payment to the plaintiff class
solely by the company's insurers. On Dec. 1, 2009, the Court
entered an order granting preliminary approval of the proposed
settlement.
The settlement is subject to final approval by the Court, and a
hearing at which the Court will consider whether to grant final
approval of the settlement was scheduled for April 15, 2010.
Threshold Pharmaceuticals, Inc., --
http://www.thresholdpharm.com/-- is a biotechnology company
focused on the discovery and development of drugs targeting Tumor
Hypoxia, the low oxygen condition found in microenvironments of
most solid tumors. This approach offers broad potential to treat
most solid tumors. By selectively targeting tumor cells,
Threshold is building a pipeline of drugs that hold promise to be
more effective and less toxic to healthy tissues than
conventional anticancer drugs.
THOR INDUSTRIES: Suits on Formaldehyde in Housing Units Pending
---------------------------------------------------------------
Thor Industries, Inc., remains named in several complaints, some
of which are putative class actions, filed against manufacturers
of travel trailers and manufactured homes supplied to the Federal
Emergency Management Agency to be used for emergency living
accommodations in the wake of Hurricane Katrina.
The company has been named in approximately 325 complaints, some
of which were originally styled as putative class actions (with
respect to which class certification was ultimately denied) and
some of which were filed by individual plaintiffs, filed against
manufacturers of travel trailers and manufactured homes supplied
to the Federal Emergency Management Agency for use as emergency
living accommodations in the wake of Hurricanes Katrina and Rita.
The complaints have been transferred to the Eastern District of
Louisiana by the federal panel on multidistrict litigation for
consideration in a matter captioned in re FEMA Trailer
Formaidehyde Products Liability Litigation, Case Number MDL 07-
1873, U.S. District Court for the Eastern District of Louisiana.
The complaints generally assert claims for damages (for health
related problems, medical expenses, emotional distress and lost
earnings) and for medical monitoring costs due to the presence of
formaidehyde in the units.
Some of the lawsuits also seek punitive and/or exemplary damages.
Thus far, however, none of the lawsuits allege a specific amount
of damages sought and instead make general allegations about the
nature of the plaintiffs' claims without placing a dollar figure
on them, according to the company's March 8, 2010, Form 10-Q
Filing with the U.S. Securities and Exchange Commission for the
quarter ended Jan. 31, 2010.
Thor Industries, Inc. -- http://www.thorindustries.com/--
produces and sells a range of recreation vehicles, and small and
mid-size buses in the U.S. and Canada. The company's principal
recreation vehicle operating subsidiaries are Airstream, Inc.,
CrossRoads RV, Dutchmen Manufacturing, Inc., Four Winds
International, Inc., Keystone RV Company, Komfort Corp., Citair,
Inc., and Damon Corp. Its principal bus operating subsidiaries
are Champion Bus, Inc., General Coach America, Inc., ElDorado
National California, Inc., ElDorado National Kansas, Inc., and
Goshen Coach, Inc. The company operates through three segments:
towable recreation vehicles, motorized recreation vehicles and
buses.
TREE.COM INC: "Carson" Suit Proceeding on Individual Claim Basis
----------------------------------------------------------------
The matter Sylvia Carson v. LendingTree, LLC, No. 3:08-cv-247, is
proceeding on an individual (non-class) basis, according to
Tree.com, Inc.' March 8, 2010, Form 10-K/A filing with the U.S.
Securities and Exchange Commission for the year ended Dec. 31,
2009.
Several putative class actions were filed arising out of
LendingTree, LLC's April 21, 2008 announcement that unauthorized
persons had gained access to non-public information relating to
its customers.
The actions are:
-- Constance Spinozzi v. LendingTree, LLC, No. 3:08-cv-229
(U.S. Dist. Ct., W.D.N.C.);
-- Sylvia Carson v. LendingTree, LLC, No. 3:08-cv-247 (U.S.
Dist. Ct., W.D.N.C.);
-- Mitchell v. Home Loan Center, Inc., No. 08-303-RJC (U.S.
Dist. Ct., W.D. N.C.);
-- Miller v. LendingTree, LLC, No. 08cv2300 (U.S. Dist.
Ct., N.D. Ill.);
-- Marvin Garcia v. LendingTree, LLC, No. 08 Civ. 4551
(U.S. Dist. Ct., S.D.N.Y.);
-- Amy Bercaw v. LendingTree, LLC, No. SACV08-660 (U.S.
Dist. Ct., C.D. Cal.);
-- Shaver v. LendingTree, LLC, et al., SACV08-755 (U.S.
Dist. Ct. C.D. Cal.); and
-- Bradley v. LendingTree, LLC, et al., SACV08-755 (U.S.
Dist. Ct. C.D. Cal.).
Plaintiffs allege that LendingTree is a "consumer reporting
agency" within the meaning of the federal Fair Credit Reporting
Act and has violated the FCRA by failing to maintain reasonable
procedures designed to limit the furnishing of consumer reports.
Plaintiff also asserts claims for negligence, breach of implied
contract, invasion of privacy and misappropriation of
confidential information.
Plaintiffs purport to represent all LendingTree customers
affected by the information security breach, and seek damages,
attorneys' fees and injunctive relief.
The cases were transferred for consistent pre-trial treatment
into In re LendingTree, LLC Customer Data Security Breach
Litigation in the Western District of North carolina, Charlotte
Division, and the court ordered each case to individual
arbitration.
The Carson case is proceeding on an individual (non-class) basis.
Tree.com, Inc. -- http://www.tree.com/-- through its various
subsidiaries, operates a lending business (the Lending Business)
and a real estate business (the Real Estate Business). The
Lending Business consists of online networks, principally
LendingTree.com and GetSmart.com, as well as call centers, which
match consumers with lenders and loan brokers. In addition, the
Lending Business originates, processes, approves and funds
various types of residential real estate loans under two brand
names, LendingTree Loans and HomeLoanCenter.com, and offers
residential mortgage loan settlement services under the name
LendingTree Settlement Services. The Real Estate Business
consists of an Internet-enabled national residential real estate
brokerage that operates offices in 14 markets under the brand
name RealEstate.com, REALTORS.
TREE.COM INC: LendingTree Defends "Love" Suit in Milwaukee
----------------------------------------------------------
Tree.com, Inc.'s subsidiary LendingTree, LLC, continues to defend
a putative class action styled Lavette Love v. LendingTree, et
al, No. 09cv009598, pending in the Milwaukee County Circuit
Court, Milwaukee, according to the company's March 8, 2010, Form
10-K/A filing with the U.S. Securities and Exchange Commission
for the year ended Dec. 31, 2009.
The action was filed June 24, 2009 by Plaintiff, individually and
on behalf of all similarly-situated Wisconsin residents, against
LendingTree and LendingTree Loans/Home Loan Center, Inc.
The complaint alleges that LendingTree failed to provide certain
disclosures required by the Wisconsin Mortgage Broker Act.
The complaint requests an award of statutory penalties,
forfeiture of all fees paid and recovery of actual costs,
including attorneys' fees. This matter is currently in
discovery.
Tree.com, Inc. -- http://www.tree.com/-- through its various
subsidiaries, operates a lending business (the Lending Business)
and a real estate business (the Real Estate Business). The
Lending Business consists of online networks, principally
LendingTree.com and GetSmart.com, as well as call centers, which
match consumers with lenders and loan brokers. In addition, the
Lending Business originates, processes, approves and funds
various types of residential real estate loans under two brand
names, LendingTree Loans and HomeLoanCenter.com, and offers
residential mortgage loan settlement services under the name
LendingTree Settlement Services. The Real Estate Business
consists of an Internet-enabled national residential real estate
brokerage that operates offices in 14 markets under the brand
name RealEstate.com, REALTORS.
TREE.COM INC: No Class Certification Yet in "Boschma" Suit
----------------------------------------------------------
Plaintiffs in the matter Boschma v. Home Loan Center, Inc., No.
SACV07-613, has yet to file a motion for class certification,
according to Tree.com, Inc.'s March 8, 2010, Form 10-K/A filing
with the U.S. Securities and Exchange Commission for the year
ended Dec. 31, 2009.
On May 25, 2007, Plaintiffs filed this putative class action
against Home Loan Center, Inc., in the U.S. District Court for
the Central District of California.
Plaintiffs allege that HLC sold them an option "ARM" (adjustable-
rate mortgage) loan but failed to disclose in a clear and
conspicuous manner, among other things, that the interest rate
was not fixed, that negative amortization could occur and that
the loan had a prepayment penalty. Based upon these factual
allegations, Plaintiffs assert violations of the federal Truth in
Lending Act, violations of the California Unfair Competition Law,
breach of contract, and breach of the covenant of good faith and
fair dealing.
Plaintiffs purport to represent a class of all individuals who
between June 1, 2003 and May 31, 2007 obtained through HLC an
option ARM loan on their primary residence located in California,
and seek rescission, damages, attorneys' fees and injunctive
relief.
Plaintiffs have not yet filed a motion for class certification.
No trial date has been set.
Tree.com, Inc. -- http://www.tree.com/-- through its various
subsidiaries, operates a lending business (the Lending Business)
and a real estate business (the Real Estate Business). The
Lending Business consists of online networks, principally
LendingTree.com and GetSmart.com, as well as call centers, which
match consumers with lenders and loan brokers. In addition, the
Lending Business originates, processes, approves and funds
various types of residential real estate loans under two brand
names, LendingTree Loans and HomeLoanCenter.com, and offers
residential mortgage loan settlement services under the name
LendingTree Settlement Services. The Real Estate Business
consists of an Internet-enabled national residential real estate
brokerage that operates offices in 14 markets under the brand
name RealEstate.com, REALTORS.
TREE.COM INC: HLC Subsidiary Defends "Gaines" Suit in California
----------------------------------------------------------------
Tree.com, Inc.'s subsidiary, Home Loan Center, Inc., continues to
defend a putative class action captioned Gaines v. Home Loan
Center, Inc., No. SACV08-667, according to the company's March 8,
2010, Form 10-K/A filing with the U.S. Securities and Exchange
Commission for the year ended Dec. 31, 2009.
On June 13, 2008, Plaintiffs filed this putative class action
against HLC and LendingTree in the U.S. District Court for the
Central District of California.
Plaintiffs allege, in essence, that:
(1) HLC failed to disclose that the bundled amount for
certain loan closing services (called the "TrueCost")
that HLC charged to Plaintiffs was greater than HLC's
actual costs for those services;
(2) HLC's option ARM (adjustable-rate mortgage) note failed
to tell Plaintiffs that the stated interest rate and
payment amounts would change after the first month and
that the payment amount stated in the note was not
sufficient to pay interest charges, resulting in
negative amortization; and
(3) HLC misrepresented that Plaintiffs would have to obtain
a home equity line of credit in order to obtain a low
interest rate on their option ARM loans.
Based upon these factual allegations, Plaintiffs assert
violations of the federal Racketeer Influenced and Corrupt
Organizations Act, the Truth in Lending Act, the California
Unfair Competition Law, California Business and Professions Code
Section 17500, the Consumers Legal Remedies Act, breach of
contract, breach of the implied covenant of good faith and fair
dealing, unjust enrichment, conversion, and money had and
received.
Plaintiffs purport to represent all HLC customers who, since Dec.
14, 2004:
(1) were charged by HLC and paid an amount that exceeded
HLC's actual costs for those services; and/or
(2) entered into option ARM loan agreements with HLC;
and/or
(3) were misled into taking out a home equity line of
credit along with their option ARM mortgage.
Plaintiffs seek restitution, disgorgement, damages, attorneys'
fees and injunctive relief.
Plaintiffs have not yet filed a motion for class certification.
No trial date has been set.
Tree.com, Inc. -- http://www.tree.com/-- through its various
subsidiaries, operates a lending business (the Lending Business)
and a real estate business (the Real Estate Business). The
Lending Business consists of online networks, principally
LendingTree.com and GetSmart.com, as well as call centers, which
match consumers with lenders and loan brokers. In addition, the
Lending Business originates, processes, approves and funds
various types of residential real estate loans under two brand
names, LendingTree Loans and HomeLoanCenter.com, and offers
residential mortgage loan settlement services under the name
LendingTree Settlement Services. The Real Estate Business
consists of an Internet-enabled national residential real estate
brokerage that operates offices in 14 markets under the brand
name RealEstate.com, REALTORS.
TREE.COM INC: "Schnee" Plaintiffs Appeal Certification Denial
-------------------------------------------------------------
The appeal of the plaintiffs on the denial of class certification
in the matter Schnee v. LendingTree, LLC and Home Loan Center,
Inc., No. 06CC00211, remains pending, according to Tree.com,
Inc.'s March 8, 2010, Form 10-K/A filing with the U.S. Securities
and Exchange Commission for the year ended Dec. 31, 2009.
On Oct. 11, 2006, four individual plaintiffs filed this putative
class action against LendingTree and HLC in the California
Superior Court for Orange County.
Plaintiffs allege that they used the LendingTree.com website to
find potential lenders and without their knowledge were referred
to LendingTree's direct lender, HLC; that Lending Tree, LLC and
HLC did not adequately disclose the relationship between them;
and that HLC charged Plaintiffs higher rates and fees than they
otherwise would have been charged.
Based upon these allegations, Plaintiffs assert that LendingTree
and HLC violated the California Unfair Competition Law,
California Business and Professions Code Section 17500, and the
Consumers Legal Remedies Act.
Plaintiffs purport to represent a nationwide class of consumers
who sought lender referrals from LendingTree and obtained loans
from HLC since Dec. 1, 2004. Plaintiffs seek damages,
restitution, attorneys' fees and injunctive relief.
On Sept. 25, 2009, Plaintiffs' motion for class certification was
denied in its entirety, which action has been appealed by
Plaintiffs. No trial date has been set.
Tree.com, Inc. -- http://www.tree.com/-- through its various
subsidiaries, operates a lending business (the Lending Business)
and a real estate business (the Real Estate Business). The
Lending Business consists of online networks, principally
LendingTree.com and GetSmart.com, as well as call centers, which
match consumers with lenders and loan brokers. In addition, the
Lending Business originates, processes, approves and funds
various types of residential real estate loans under two brand
names, LendingTree Loans and HomeLoanCenter.com, and offers
residential mortgage loan settlement services under the name
LendingTree Settlement Services. The Real Estate Business
consists of an Internet-enabled national residential real estate
brokerage that operates offices in 14 markets under the brand
name RealEstate.com, REALTORS.
TREE.COM INC: Class Certification Motion Remains Pending
--------------------------------------------------------
The motion of the plaintiffs for class certification in the
matter Mortgage Store, Inc. v. LendingTree Loans d/b/a Home Loan
Center, Inc., No. 06CC00250, remains pending, according to
Tree.com, Inc.'s March 8, 2010, Form 10-K/A filing with the U.S.
Securities and Exchange Commission for the year ended Dec. 31,
2009.
On Nov. 30, 2006, The Mortgage Store, Inc. and Castleview Home
Loans, Inc. filed this putative class action against HLC in the
California Superior Court for Orange County.
Plaintiffs, two former Network Lenders, allege that HLC
interfered with LendingTree's contracts with Network Lenders by
taking referrals from LendingTree. The complaint is largely
based upon the factual allegations made in the complaint styled
Schnee v. LendingTree, LLC and Home Loan Center, Inc., No.
06CC00211.
Based upon these factual allegations, Plaintiffs assert claims
for intentional interference with contractual relations,
intentional interference with prospective economic advantage, and
violation of the Unfair Competition Law and California Business
and Professions Code Section 17500.
Plaintiffs purport to represent all Network Lenders from Dec. 14,
2004 to date, and seek damages, restitution, attorneys' fees, and
punitive damages.
Plaintiffs have filed a motion for class certification. No trial
date has been set.
Tree.com, Inc. -- http://www.tree.com/-- through its various
subsidiaries, operates a lending business (the Lending Business)
and a real estate business (the Real Estate Business). The
Lending Business consists of online networks, principally
LendingTree.com and GetSmart.com, as well as call centers, which
match consumers with lenders and loan brokers. In addition, the
Lending Business originates, processes, approves and funds
various types of residential real estate loans under two brand
names, LendingTree Loans and HomeLoanCenter.com, and offers
residential mortgage loan settlement services under the name
LendingTree Settlement Services. The Real Estate Business
consists of an Internet-enabled national residential real estate
brokerage that operates offices in 14 markets under the brand
name RealEstate.com, REALTORS.
VALASSIS COMMS: Settlement Agreement Gets Court's Final Approval
----------------------------------------------------------------
The U.S. District Court for the District of Connecticut gave its
final approval to the settlement agreement resolving the
consolidated class action lawsuit against ADVO Inc., according to
Valassis Communications, Inc.'s March 8, 2010, Form 10-K filing
with the U.S. Securities and Exchange Commission for the year
ended Dec. 31, 2009.
Upon completion of the company's acquisition of ADVO, the company
assumed responsibility for ADVO's pending securities class action
lawsuits.
In September 2006, three securities class action lawsuits (Robert
Kelleher v. ADVO, Inc., et al., Jorge Cornet v. ADVO, Inc., et
al., Richard L. Field v. ADVO, Inc., et al.) were filed against
ADVO and certain of its officers in the U.S. District Court for
the District of Connecticut by certain ADVO shareholders seeking
to certify a class of all persons who purchased ADVO stock
between July 6, 2006 and Aug. 30, 2006.
The cases were consolidated under a single action titled Robert
Kelleher et al. v. ADVO, Inc., et al., Civil Case No.
3:06CV01422(AVC) and a consolidated amended complaint was filed
on June 8, 2007.
The complaint generally alleges ADVO violated federal securities
law by making a series of materially false and misleading
statements concerning ADVO's business and financial results in
connection with the proposed merger and, as a result, the price
of ADVO's stock was allegedly inflated.
On Aug. 24, 2007, the defendants filed a Motion to Dismiss the
complaint, which was denied.
On Aug. 29, 2008, plaintiff moved for certification of the case
as a class action. This motion was granted on March 27, 2009.
On Oct. 28, 2009, the parties entered into an agreement providing
for the settlement of the action and filed papers seeking
preliminary approval of a settlement agreement in the Court. The
settlement amount of $12.5 million will be paid from the proceeds
of ADVO's directors and officers' insurance policy, with no
adverse impact to Valassis' financial statements.
The deadline for objecting to the settlement or for opting out of
the class passed without any members of the class providing
notice of objection or opting out.
On March 3, 2010, the court held a settlement approval hearing,
issued final approval of the settlement, and entered final
judgment dismissing the claims with prejudice. The deadline for
any appeal from the judgment and order of final approval was
April 2, 2010.
Valassis Communications, Inc. -- http://www.valassis.com/-- is a
media and marketing services company, offering reach and scale to
more than 15,000 advertisers. Its portfolio of products and
services delivers value on a weekly basis to over 100 million
shoppers across a multi-media platform, in the mailbox, in the
newspaper, on the doorstep, in store and online. The company
operates through four segments: Shared Mail, Neighborhood
Targeted, Free-standing Inserts (FSI), International, Digitial
Media & Services. In January 2008, the Company launched RedPlum,
its consumer brand, across its portfolio of offerings. In
conjunction with the brand launch, Redplum.com was introduced in
the marketplace on Jan. 3, 2008, extending the company's print
advertisers' reach online and offering consumers national and
local deals.
ZIPREALTY INC: Files Counter Claim in "Williams" Suit
-----------------------------------------------------
ZipRealty, Inc., has filed its counter claim in the suit
captioned Elizabeth Williams v. ZipRealty, Inc., et al.,
according to the company's March 10, 2010, Form 10-K filing with
the U.S. Securities and Exchange Commission for the year ended
Dec. 31, 2009.
On Jan. 22, 2010, the company was named in a class action lawsuit
filed in the Superior Court of California, County of Alameda, by
a former employee agent of the company.
The complaint seeks monetary relief and alleges, among other
things, that the company's practice of classifying agents as
exempt employees pursuant to the "outside salesperson" exemption
under California law, and compensating agents accordingly,
violates applicable law regarding the payment of minimum wages
and overtime.
The company filed a counter claim against Plaintiff Elizabeth
Williams alleging, among other things, that Ms. Williams engaged
in conduct violating her employment agreement with ZipRealty.
ZipRealty, Inc. -- http://www.ziprealty.com/-- is a leading
full-service residential real estate brokerage that uses an
innovative combination of a comprehensive online presence, robust
proprietary technology and knowledgeable local agents in the
field to offer its clients fast, responsive and transparent
service. The company's award-winning, user-friendly website
gives its users access to comprehensive local Multiple Listing
Services home listings data, as well as other relevant market and
neighborhood information and tools. The company's proprietary
technology, including its agent productivity platform, helps it
to increase agent efficiency and reduce costs, allowing the
Company to pass on significant savings to consumers as permitted
by law. Founded in 1999, the company operates in 35 major
markets in 22 states and the District of Columbia.
Asbestos Litigation
ASBESTOS UPDATE: Asbestos Found in 216 Eldorado-Reno Hotel Rooms
----------------------------------------------------------------
NGA HoldCo, LLC says that asbestos has been determined to be
present in the acoustic ceilings of about 216 of the original
Eldorado Hotel and Casino's older hotel rooms.
The Eldorado Hotel and Casino is located in Reno, Nev.
Removal of the asbestos will be required only in the event of the
demolition of the affected rooms or if the asbestos is otherwise
disturbed.
At this time, management has no plans to renovate or demolish the
affected rooms in a manner that would require removal of the
asbestos, according to the Company's annual report filed on April
14, 2010 with the Securities and Exchange Commission.
Based in The Woodlands, Tex., NGA HoldCo, LLC was formed on Jan.
8, 2007 for the purpose of holding equity, directly or indirectly
through affiliates, in one or more entities related to the gaming
industry. The Company has two subsidiaries, NGA Blocker, LLC and
AcquisitionCo, LLC, each of which was formed on Jan. 8, 2007.
ASBESTOS UPDATE: PPG Industries' Settlement at $544M in March 31
----------------------------------------------------------------
PPG Industries, Inc.'s asbestos settlement (under current
liabilities) was US$544 million during the three months ended
March 31, 2010, compared with US$484 million as of March 31,
2009, according to a Company report, on Form 8-K, filed on April
15, 2010 with the U.S. Securities and Exchange Commission.
The Company's asbestos settlement (under current Liabilities) was
still at US$534 million as of Dec. 31, 2009, the same as for the
period ended Sept. 30, 2009. (Class Action Reporter, Jan. 29,
2010)
Net asbestos settlement expense was US$3 million during the three
months ended March 31, 2010, compared with US$4 million during
the three months ended March 31, 2009.
Based in Pittsburgh, PPG Industries, Inc. serves customers in
industrial, transportation, consumer products, and construction
markets and aftermarkets. The Company operates in more than 60
countries. Sales in 2009 were US$12.2 billion.
ASBESTOS UPDATE: Hopedale Firm Fined $28,625 for Cleanup Breach
---------------------------------------------------------------
The Massachusetts Department of Environmental Protection assessed
a US$28,625 penalty to Water Falls Construction and Landscaping,
Inc. for violations of state asbestos regulations that occurred
during a demolition project conducted at 1103 Main Street in
Worcester, according to a MassDEP press release dated April 16,
2010.
The Company is based in Hopedale, Mass.
During an April 2008 inspection, MassDEP personnel found
asbestos-containing transite wall panels and asbestos-containing
floor tiles in the partially demolished structure. Inspectors
also observed pieces of the dry, broken asbestos-containing
materials uncontained in demolition debris at the site.
No prior notification of the demolition or asbestos removal
activities was made to MassDEP, as required by law.
Upon discovery of the violations, the Company was required to
hire a Massachusetts Division of Occupational Safety licensed
asbestos contractor to properly remove, handle, package and
dispose of all the asbestos waste materials, and to decontaminate
all impacted areas of the property.
Additionally, the Company was required to retain a DOS-licensed
asbestos inspector to identify all remaining asbestos-containing
materials in the building, and have those materials properly
removed prior to conducting any further demolition work.
Under the terms of the consent order with MassDEP, the Company
must pay US$7,500 of the assessed penalty, with an additional
US$21,125 suspended provided that the Company does not have
repeat violations for one year.
State asbestos regulations require that advance notification be
provided to MassDEP at least 10 working days prior to the removal
of asbestos-containing materials, and that the materials be
removed wet, and in a manner that minimizes breakage.
The regulations also mandate that asbestos-containing materials
be removed from structures prior to commencing demolition and
that the asbestos waste be sealed, while wet, into leak-tight
containers that have the appropriate asbestos warning labels
affixed to them.
Martin Suuberg, director of MassDEP's Central Regional Office in
Worcester, said, "Contractors must recognize their responsibility
to ensure that asbestos materials are identified and properly
removed and handled in full compliance with the regulations
before commencing any demolition or renovation operations.
"Improper removal and handling of asbestos materials is a serious
matter that potentially exposes workers, tenants, and the general
public to a known carcinogen. Failure to follow the required work
procedures inevitably results in escalated cleanup,
decontamination, and monitoring costs, as well as significant
penalty exposure."
ASBESTOS UPDATE: Saugus Firm Fined $14,310 for Cleanup Breaches
---------------------------------------------------------------
The Massachusetts Department of Environmental Protection assessed
a US$14,310 penalty to National Abatement, Inc. for violating
state asbestos regulations at a site in Fitchburg, according to a
MassDEP press release dated April 15, 2010.
The Company is based in Saugus, Mass.
MassDEP inspectors identified the violations during an April 2009
inspection of an asbestos removal project that the Company was
conducting at the Rollstone Bank & Trust, 780 Main St.,
Fitchburg.
MassDEP staff observed that the Company was improperly removing
exterior asbestos-containing panels, and failed to wet, properly
containerize and label asbestos-containing waste at the site.
Under the terms of a consent order signed with MassDEP, the
Company must pay US$3,000 of the assessed penalty, with the
remaining US$11,310 suspended provided the Company does not have
repeat violations for one year.
MassDEP regulations require that asbestos removal contractors wet
and remove exterior asbestos-containing panels intact and
carefully lower them to the ground to avoid breakage. Once
lowered to the ground, the wetted asbestos-containing waste
materials are required to be sealed, while wet, into leak-tight
containers that have appropriate asbestos warning labels affixed
to them.
These work procedures are critical measures designed to prevent
exposure of asbestos fibers to the general public, and to ensure
the fibers are not released into the environment.
Martin Suuberg, director of MassDEP's Central Regional Office in
Worcester, said, "Licensed asbestos contractors are fully aware
that following the prescribed regulatory work practices is
crucial to protect their workers, as well as the public health
and environment.
"Failure to comply with all required work practices inevitably
results in significant penalty exposure as well as escalated
cleanup, decontamination and monitoring costs."
ASBESTOS UPDATE: Thompson Action Filed on April 9 in Kanawha Co.
----------------------------------------------------------------
An asbestos lawsuit styled Mary F. Thompson, individually and as
executrix of the Estate of William D. Thompson, deceased vs. CSX
Transportation, Inc., individually and as successor-in-interest
to Chesapeake & Ohio Railway Company, was filed on April 9, 2010
in Kanawha Circuit Court, W.Va., The West Virginia Record
reports.
Mrs. Thompson claims that during Mr. Thompson's employment with
the defendant, he was exposed to toxic substances, including
asbestos, chemicals and diesel exhaust, which in whole or in
part, caused him to develop lung cancer. He was diagnosed with
lung cancer on July 10, 2008.
Mrs. Thompson claims the defendant failed to test asbestos-
containing products prior to requiring employees to work with
them. She seeks damages for Mr. Thompson's wrongful death and
personal injury.
James A. McKowen, Esq., and John E. Guerry III, Esq., represent
Mrs. Thompson.
Case No. 10-C-674 is assigned to a visiting judge.
ASBESTOS UPDATE: Kunkel's Action Filed on April 8 in Kanawha Co.
----------------------------------------------------------------
An asbestos lawsuit styled Darryl Kunkel and Dianne C. Burkhart,
his wife vs. A.O. Smith Corporation, in its own right and as
successor-in-interest to the Clark Controller Company and A.O.
Smith Corporation; A.W. Chesterton Company; Ajax Magnethermic
Corporation; et al., was filed on April 8, 2010 in Kanawha
Circuit Court, W.Va., The West Virginia Record reports.
Mr. Kunkel and Ms. Burkhart, a couple from Pennsylvania, claim
the 89 defendants are responsible for Mr. Kunkel's mesothelioma,
of which he was diagnosed Jan. 22, 2010.
The defendants were negligent in that they produced, used, sold
and otherwise put into the stream of interstate commerce,
asbestos and asbestos-containing materials which they knew were
deadly, poisonous and highly harmful, according to the suit.
Mr. Kunkel and Ms. Burkhart are seeking compensatory and punitive
damages.
Brian A. Prim, Esq., represents Mr. Kunkel and Ms. Burkhart.
Case No. 10-C-672 is assigned to a visiting judge.
ASBESTOS UPDATE: Carroll's Widow Launches Claim for Compensation
----------------------------------------------------------------
Anita Carroll, the widow of David Carroll, a native of Leeds,
England, who died of workplace exposure to asbestos, is appealing
to his former workmates to come forward and help her in her
compensation action, the Yorkshire Evening Post reports.
Mr. Carroll died on June 24, 2007 at the age of 67, eight month
after developing pleural mesothelioma.
Mrs. Carroll has now instructed industrial disease experts at
legal firm Irwin Mitchell to pursue a civil claim against his
former employers.
Mr. Carroll is believed to have inhaled asbestos while working as
a welder for Samuel Butlers, Albion Works, Stanningley, from 1953
to 1960. He also worked as a crane driver and welder for Clyde
Crane and Booth Limited and Clark Chapman John Thompson Limited,
the Leeds branch of the national crane manufacturer, from 1970 to
1972 and 1977 to 1978.
An inquest into Mr. Carroll's death on Aug. 13, 2008 at Leeds
Coroner's Court recorded a verdict of death by industrial
disease.
Solicitor Ian Toft, from the Leeds office of law firm Irwin
Mitchell, said, "The inquest into David's death has confirmed
that he died as a direct result of being exposed to asbestos
fibers.
"During his time at Samuel Butlers, Clyde Crane and Booth Limited
and Clark Chapman John Thompson Limited he worked directly with
the deadly material.
"At the moment we have very limited information about the firms
and their insurers, although we do know a close colleague was
called Edward Toomes.
"It's vital to our inquiries that we track down David's former
colleagues or hear from people that may have dealt with the
companies during the 1950s, 60s and 70s."
ASBESTOS UPDATE: Michelin Tyre Worker Awarded GBP23.3T in Payout
----------------------------------------------------------------
Roy Ibbs, a retired pipe fitter suffering from asbestosis, was
awarded GBP23,300 in compensation from his former employer,
Michelin Tyre Plc, The Sentinel Reports.
Mr. Ibbs also lives with an increased risk of developing
mesothelioma.
Mr. Ibbs, of Trent Vale, England, was described by High Court
judge Mr. Justice Mackay as an "active, industrious working man"
before being struck down by illness.
Mr. Ibbs, who was unable to attend the London High Court to give
evidence on April 16, 2010, worked for Michelin between 1969 and
1985 and was exposed to, "frequent and heavy" clouds of asbestos
dust, according to his barrister Colin McCaul QC.
Mr. Ibbs worked at the Company's Campbell Road, Stoke, factory,
from the 1960s, when it employed more than 9,000 workers. By the
1980s, the motor industry was hit by a rise in oil prices and the
firm started cutting back on production.
The Company now employs more than 1,000 workers. About 200 of
these are in the same engineering and maintenance department Mr.
Ibbs worked in.
After giving his ruling, Mr. Justice Mackay was told Mr. Ibbs had
been offered GBP20,000 by lawyers acting for Michelin's insurers
to settle out of court.
During the case they argued damages should be about GBP12,000,
while Mr. Ibbs's legal team asked for about GBP35,000.
ASBESTOS UPDATE: Ore. DEQ Issues Notice to Revoke Able's License
----------------------------------------------------------------
The Oregon Department of Environmental Quality has issued a
notice to revoke the Oregon asbestos abatement license of Able
Contractors Inc., a Brush Prairie, Wash.-based asbestos removal
service company, after the latest in a series of violations of
Oregon asbestos laws, according to an Oregon DEQ press release
dated April 19, 2010.
The Company first obtained its Oregon asbestos abatement license
in 1999.
In its notice dated April 5, 2010, DEQ stated that Able
Contractors "has repeatedly violated Oregon regulations and
statutes pertaining to licensed asbestos abatement contractors."
DEQ has issued Able Contractors four penalties for asbestos
abatement violations since 2001.
The most recent penalty came March 16, 2010, when DEQ issued Able
Contractors US$20,925 in penalties for violations related to a
project on a commercial building at 2220 Pacific Boulevard SE in
Albany, Ore., last October 2009.
Oregon has adopted regulations governing the proper removal,
packaging and disposal of asbestos to protect the public from
exposure to asbestos fibers.
DEQ issued US$20,925 in penalties to the Company for its
mishandling of asbestos during removal of about 26,000 square
feet of asbestos-containing vinyl floor tiles at the building in
Albany from Oct. 8, 2009 to Oct. 12, 2009. The project involved
removal of asbestos materials that were friable, or capable of
breaking off into airborne fibers that could be harmful to the
public.
DEQ penalized Able Contractors US$16,200 for failing to properly
enclose the areas where friable asbestos materials were to be
removed. Specifically, the Company failed to enclose the asbestos
removal area with an adequate number of negative air machines
used to exchange and properly ventilate air in the work areas.
DEQ also penalized the Company US$3,150 for failing to install
the required minimum number of viewing windows in one of the
enclosed asbestos removal areas to ensure work was being done
properly. In addition, DEQ assessed a US$1,575 penalty for
allowing uncertified persons to perform an asbestos abatement
project.
Able Contractors has appealed its March 16, 2010 penalty and has
until April 26, 2010 to appeal the proposed revocation of its
asbestos abatement license.
ASBESTOS UPDATE: Court OKs Summary Judgment in Sedlacek, Crooks
---------------------------------------------------------------
The Superior Court of Pennsylvania upheld the ruling of the Court
of Common Pleas of Westmoreland County, Civil Division, which
granted summary judgment in favor of ALCOA, Inc., in asbestos
actions filed by Lou Crooks and Mary Kay Sedlacek.
Judges Kate Ford Elliott, Christine L. Donohue, and Robert E.
Colville entered judgment in the cases on Feb. 25, 2010.
Frank C. Crooks and Edward Sedlacek were both employed by ALCOA
and later, long after their employment terminated, and long after
either man had had an occupational exposure to asbestos,
developed mesothelioma, from which they both succumbed.
Mr. Crooks was a tool and die maker for ALCOA from 1945 to 1975,
was diagnosed with mesothelioma on Oct. 11, 2004, and died from
that disease on Feb. 20, 2005. Mr. Sedlacek worked at ALCOA from
1956 to 1993, was diagnosed with mesothelioma on May 31, 2005,
and died from that disease on Nov. 15, 2006.
Both parties filed personal injury actions in the Court of Common
Pleas of Westmoreland County, contending that the contraction of
mesothelioma was due to ALCOA's negligence.
Ostensibly, efforts at recovery in tort were undertaken because
the parties were of the well-grounded opinion that the
disability/deaths suffered were not compensable under either the
Workers' Compensation Act (WCA) or the Occupational Disease Act
("ODA") due to language in those acts limiting recovery to injury
or disease manifesting within a certain period of time from the
date of last exposure/employment.
Subsequently, ALCOA filed a motion for summary judgment
contending that the plaintiff's cause of action was barred by
provisions in the WCA and ODA, "which provide employees
compensation for disability or death occurring during their
employment without regard to negligence in exchange for employer
immunity from common law suits filed by employees."
The court agreed and entered orders granting summary judgment to
ALCOA. Following settlement prior to trial with the remaining
named defendants, this order was made final and the present
appeals followed.
ASBESTOS UPDATE: Appeal Court Flips Ruling in Schellinger Action
----------------------------------------------------------------
The Court of Appeal, First District, Division 5, California,
reversed the ruling of the San Francisco County Superior Court,
in an asbestos suit styled Bonny Schellinger, Plaintiff and
Appellant; Denice Schellinger, Plaintiff and Respondent v.
Asbestos Defendants, et al., Defendants.
Judges Henry E. Needham Jr., Barbara J.R. Jones, and Terence L.
Bruiniers entered judgment in Case No. A125554 on Feb. 24, 2010.
Bonny Schellinger appealed from an order distributing the
settlement proceeds of a wrongful death and survival action
equally between Bonny and her sister, Denice Schellinger. Bonny
Bonny contended the court erred because she had a much closer and
more dependent relationship with the deceased. The Court reversed
the order.
In 2005, Thomas Schellinger died as the result of asbestos-
related causes. He was survived by his older daughter Denice, his
younger daughter Bonny, and his wife (Bonny's mother), who died a
little more than a month after Thomas.
In February 2006, Denice in her capacity as a statutory wrongful
death heir, and Bonny in her capacity as a statutory wrongful
death heir and successor-in-interest to Thomas's estate, filed a
wrongful death and survival action against several defendants.
In March 2006, the attorneys for Bonny and Denice sent them a
letter seeking their proposals for the allocation of anticipated
proceeds from the litigation. In May 2006, Bonny and Denice
agreed in writing to share equally in all proceeds from the
litigation.
Certain defendants in the litigation settled and, between May
2006 and February 2008, about US$39,467 in net settlement
proceeds were distributed to Bonny and Denice in equal shares
under their written agreement.
In February 2008, however, Bonny informed the attorneys that she
no longer agreed to equal distribution and wanted to change the
distribution agreement. The attorneys placed a hold on the
distribution of any future net proceeds until the parties could
reach another agreement.
As of August 2008, Bonny and Denice were unable to agree on the
allocation of the proceeds. Bonny proposed that she receive 90
percent, while Denice proposed that the funds continue to be
divided equally. In the meantime, US$132,921.17 in additional
funds was recovered from settling defendants for distribution.
In April 2009, the attorneys for Bonny and Denice filed a motion
for apportionment. In connection with the motion, declarations
were submitted to the court from Bonny, Denice, Thomas's sister
(Dorothy Nagatoshi), Thomas's friend (Douglas Ayers), and
Thomas's father (Edward Schellinger).
The court determined that the settlement proceeds should be
distributed equally between Bonny and Denice. A written order was
entered, and this appeal followed.
The order is vacated. The matter was remanded to the trial court
to determine anew the respective rights of the decedent's heirs
to the settlement funds and to order distribution of the funds
accordingly. Denice shall pay Bonnie's costs on appeal.
Jason M. Skaggs, Esq., in Palo Alto, Calif., represented Bonny
Schellinger.
Aaron Paul Minnis, Esq., of Mattingley & Minnis, LLP, David James
Mattingly, Esq., in San Francisco, represented Denice
Schellinger.
ASBESTOS UPDATE: Court Issues Split Ruling in Lichtenfels Action
----------------------------------------------------------------
The U.S. District Court, Western District of Pennsylvania, issued
split rulings in the asbestos case styled Raymond K. Lichtenfels,
and Karen I. Lichtenfels, Plaintiffs v. Electro-Motive Diesel,
Inc., Defendant.
District Judge Nora Barry Fischer entered judgment in Civil
Action No. 09-1590 on Feb. 22, 2010.
This case was before the Court on the Lichtenfels' Motion to
Remand. The case involved an asbestos exposure-related claim
originally filed in the Court of Common Pleas of Westmoreland
County, Pa. One of the named Defendants in the state proceeding,
Electro-Motive Diesel, Inc. (EMD), filed a Notice of Removal of
the Lichtenfels' claims in this Court.
EMD stated that it is indemnified by General Motors Corporation
(GM), which company is currently in bankruptcy proceedings before
the U.S. Bankruptcy Court for the Southern District of New York.
Raymond Lichtenfels was an employee of Pittsburgh & Lake Erie
Railroad, and Buffalo & Pittsburgh Railroad, from 1965 through
2004. During his period of employment, Mr. Lichtenfels worked as
a machinist, and was allegedly exposed to asbestos products and
residue. Mr. Lichtenfels now suffers from lung cancer, diagnosed
on July 15, 2008.
The Lichtenfels filed their state court claims, seeking damages
from his employers and other related companies for his exposure
to the asbestos and asbestos-containing products that those
companies allegedly distributed, supplied, manufactured, or
otherwise used in the course of each defendant's respective
business.
The Lichtenfels filed their action in the Court of Common Pleas
of Westmoreland County, Pa., on Nov. 2, 2009. EMD filed its
Notice of Removal to the Western District of Pennsylvania on Dec.
3, 2009. EMD then filed its Answer to the Lichtenfels' Complaint
on Dec. 7, 2009. The Lichtenfels filed their Reply to EMD's
Answer and the instant Motion to Remand on Dec. 16, 2009.
EMD then filed a Response and Brief in Opposition on Dec. 30,
2009. The Lichtenfels sought leave of Court to file a Reply
Brief, which was granted on Jan. 5, 2010, and filed same on Jan.
15, 2010.
The Lichtenfels' Motion to Remand to State Court was granted, in
part, and denied, in part. It was granted in that the
Lichtenfels' claims were hereby remanded to the Court of Common
Pleas of Westmoreland County. It was denied in that attorney fees
shall not be awarded.
ASBESTOS UPDATE: Tex. Appeal Court Upholds Ruling in Kelly-Moore
----------------------------------------------------------------
The Court of Appeals of Texas, Fort Worth, upheld the ruling of
the 153rd District Court of Tarrant County, which granted summary
judgment in favor of Kelly-Moore Paint Company, Inc., in an
asbestos suit filed on behalf of Dorman Smith.
The case is styled Rosemary Smith, Brady Smith, and Donna
Hubbard, Individually and as Personal Representative of the Heirs
and Estate of Dorman Smith, Deceased, Appellants v. Kelly-Moore
Paint Company, Inc., Appellee.
Judges Terrie Livingston, Bob McCoy, and Bill Meier entered
judgment in Case No. 2-08-198-CV on Feb. 25, 2010.
In a single issue, Rosemary Smith, Brady Smith, and Donna
Hubbard, Individually and as Personal Representative of the Heirs
and Estate of Dorman Smith, Deceased (collectively, the Smiths),
contended that the trial court erred by granting a no-evidence
summary judgment on the ground that the Smiths failed to adduce
sufficient evidence that Dorman Smith had been exposed to
chrysotile asbestos in Kelly-Moore's drywall joint compounds in a
dose sufficient to have been a substantial factor in causing his
mesothelioma.
Dorman Smith began working in the construction business,
specifically as a self-employed drywaller finisher using joint
compound, around 1955, and he performed the same type of work
through the mid 1980s. Doctors eventually diagnosed him with
mesothelioma in 2005.
As a result, the Smiths sued several defendants, including Kelly-
Moore, in Tarrant County, claiming that exposure to the asbestos
in those defendants' joint compound products proximately caused
Dorman Smith's mesothelioma. He died after filing suit on Dec. 9,
2005.
The case was transferred to the 11th District Court, the Texas
multidistrict litigation pretrial court. Before trial, Kelly-
Moore moved for both a no-evidence and traditional summary
judgment. The 11th District Court granted Kelly-Moore's no-
evidence motion for summary judgment and transferred the
remaining claims back to the 153rd District Court in Tarrant
County for trial.
However, the remaining claims against the other defendants were
either settled or dismissed, making the summary judgment final.
The Smiths then appealed the summary judgment ruling in favor of
Kelly-Moore.
Charles S. Siegel, Esq., represented Rosemary Smith, Brady Smith,
and Donna Hubbard, Individually and as Personal Representative of
the Heirs and Estate of Dorman Smith, Deceased.
ASBESTOS UPDATE: N.C. Appeal Court Affirms Ruling in Pepper Case
----------------------------------------------------------------
The Court of Appeals of North Carolina affirmed the Dec. 4, 2008
ruling of the North Carolina Industrial Commission, which denied
William W. Pepper's request for worker's compensation benefits
based on his contention that he had contracted asbestosis as a
result of exposure to asbestos from working for Norandal, USA.
The case is styled William W. Pepper, Employee-Plaintiff v.
Norandal, USA, Employer-Defendant and CIGNA/ACE USA/ESIS,
Carrier-Employer-Defendant.
Judges Sam Ervin IV, Martha A. Geer and Donna S. Stroud entered
judgment in Case No. COA09-383 on March 2, 2010.
The Norandal facility is located in Salisbury and was built in
1965. Mr. Pepper worked for Norandal and its predecessors from
Aug. 17, 1976 until Dec. 1, 2004.
On Feb. 14, 2000, Mr. Pepper filed a Form 18B seeking workers'
compensation benefits for asbestosis. On Oct. 17, 2001, he
requested that his claim be assigned for hearing. On Oct. 22,
2001, Norandal and ACE USA filed a Response to Request that Claim
be Assigned for Hearing in which they denied that Mr. Pepper's
claim was compensable.
On Dec. 28, 2003, Mr. Pepper, Norandal, and CIGNA/ACE entered
into a stipulation which recited that Defendants "deny that
[Plaintiff] was exposed to the hazards of asbestos during his
employment with Norandal" and that, in the event that Mr. Pepper
"was injuriously exposed to the hazards of asbestos during his
employment with Norandal," then "CIGNA/ACE and Norandal shall be
responsible for any benefits awarded to [Plaintiff] for any
occupational disease or other compensable condition under the
Workers' Compensation Act."
On Feb. 23, 2004, Norandal and ACE USA/ESIS filed a Form 61
denying the compensability of Mr. Pepper's claim. On Sept. 12,
2005, the Commission, in an Order by Commissioner Christopher
Scott, concluded that "[t]he appealing party has shown good
ground to reconsider the evidence in this matter;" reversed "the
verbal Order by Deputy Commissioner Glenn made on or about Feb.
25, 2004;" vacated "the March 8, 2005, Opinion and Award of
Deputy Commissioner Glenn;" and remanded "the matter to a deputy
commissioner for a full evidentiary hearing on all the issues in
this matter."
Although Mr. Pepper noted an appeal to this Court from the
Commission's order, the Court dismissed Mr. Pepper's appeal on
the grounds that it had been taken from an unappealable
interlocutory order on Jan. 10, 2006.
A consolidated hearing involving took place before Chief Deputy
Commissioner Stephen T. Gheen beginning May 1, 2006. In an
Opinion and Award filed March 4, 2008, Chief Deputy Commissioner
Gheen denied Mr. Pepper's claim for workers' compensation
benefits. Mr. Pepper appealed Chief Deputy Commissioner Gheen's
decision to the Commission.
By means of an Opinion and Award by Commissioner Christopher
Scott filed Dec. 4, 2008, the Commission affirmed Chief Deputy
Commissioner Gheen's order "with minor modifications." Mr. Pepper
noted an appeal to this Court from the Commission's order.
Wallace and Graham, P.A., by Edward L. Pauley, Esq., represented
William W. Pepper.
ASBESTOS UPDATE: N.C. Appeal Court Affirms Ruling in Bowles Case
----------------------------------------------------------------
The Court of Appeals of North Carolina affirmed the Dec. 4, 2008
ruling of the North Carolina Industrial Commission, which denied
a claim for workers' compensation benefits based on a contention
that Arnold Bowles suffered and died from asbestosis from
asbestos exposure that occurred during his employment with
Norandal, USA.
The case is styled Charles R. Bowles, Administrator of the Estate
of Arnold Dean Bowles, Deceased, Employee-Plaintiff v. Norandal,
USA, Employer-Defendant and CIGNA/ACE USA/ESIS, Carrier-Employer-
Defendant.
Judges Martha A. Geer, Donna S. Stroud, and Sam Ervin IV entered
judgment in Case No. COA09-384 on March 2, 2010.
The Norandal facility is located in Salisbury and was constructed
in 1965. Arnold Dean Bowles worked for Norandal and its
predecessors from October 1966 June 23, 1992.
Arnold Bowles died on Nov. 11, 2003. His final diagnosis
"included respiratory failure secondary to pneumonia and
congestive heart failure, severe brain damage due to lack of
oxygen, chronic renal failure due to diabetes, hypertension, and
chronic lung disease, a mass in his left upper lung thought to be
cancerous and ischemic heart disease with a probable small
myocardial infarction."
On April 4, 2002, Arnold Bowles filed a Form 18B seeking workers
compensation benefits for asbestosis. On Nov. 12, 2002, Norandal
and ACE USA filed a Form 61 denying the compensability of Arnold
Bowles' claim. On April 17, 2003, Arnold Bowles requested that
his claim be assigned for hearing. On April 24, 2003, Norandal
and Cigna/ACE USA submitted a Response to Request that Claim be
Assigned for Hearing in which they denied the compensability of
Arnold Bowles' claim for workers' compensation benefits.
On Feb. 4, 2003, Arnold Bowles, Norandal, and CIGNA/ACE entered
into a stipulation which recited that Defendants "deny that
[Arnold Bowles] was exposed to the hazards of asbestos during his
employment with Norandal" and that, in the event that Arnold
Bowles "was injuriously exposed to the hazards of asbestos during
his employment with Norandal," then "CIGNA/ACE and Norandal shall
be responsible for any benefits awarded to [Arnold Bowles] for
any occupational disease or other compensable condition under the
Workers' Compensation Act."
On Feb. 19, 2004, Charles R. Bowles filed a Form 18B seeking
workers compensation benefits stemming from the death of Arnold
Bowles. Charles R. Bowles' claim was consolidated for hearing
with similar claims advanced against Norandal by five other
claimants.
A consolidated hearing took place before Chief Deputy
Commissioner Stephen T. Gheen beginning May 1, 2006. In an
Opinion and Award filed Jan. 31, 2008, Chief Deputy Commissioner
Gheen denied Charles R. Bowles' claim for workers' compensation
benefits arising from Arnold Bowles' employment at the Norandal
facility. Charles R. Bowles' appealed Chief Deputy Commissioner
Gheen's decision to the Commission.
By means of an Opinion and Award by Commissioner Christopher
Scott filed Dec. 4, 2008, the Commission affirmed Chief Deputy
Commissioner Gheen's order "with minor modifications."
Based upon these findings, the Commission concluded that, "[a]s
of the date of death, [Arnold Bowles] had not developed
asbestosis, the characteristic fibrotic condition of the lungs
caused by the inhalation of asbestos dust," and denied
Plaintiff's claim for workers' compensation benefits arising from
Arnold Bowles' employment with Norandal.
Charles R. Bowles noted an appeal to this Court from the
Commission's order on Dec. 17, 2008.
Wallace and Graham, P.A., by Edward L. Pauley, Esq., represented
Charles R. Bowles.
ASBESTOS UPDATE: CSX Corporation Still Subject to Exposure Cases
----------------------------------------------------------------
CSX Corporation is still subject to occupational claims that
arise from allegations of exposure to certain materials in the
workplace, such as asbestos, solvents and diesel fuels.
No other asbestos-related matters were disclosed in the Company's
quarterly report filed on April 19, 2010 with the Securities and
Exchange Commission.
Based in Jacksonville, Fla., CSX Corporation's rail and
intermodal businesses provide rail-based transportation services
including traditional rail service and the transport of
intermodal containers and trailers.
ASBESTOS UPDATE: Crane Facing 67,479 Exposure Claims at March 31
----------------------------------------------------------------
Crane Co. was a defendant in 67,479 asbestos exposure claims as
of March 31, 2010, compared with 75,266 claims as of March 31,
2009, according to a Company report, on Form 8-K, filed on April
20, 2010 with the Securities and Exchange Commission.
As of March 31, 2010, the Company was a defendant in cases filed
in various state and federal courts alleging injury or death as a
result of exposure to asbestos.
The Company faced 66,341 asbestos claims as of Dec. 31, 2009,
compared with 74,872 claims as of Dec. 31, 2008. (Class Action
Reporter, Jan. 29, 2010)
During the three months ended March 31, 2010, the Company
recorded 913 new claims, 290 settlements, 467 dismissals, and 982
other claims.
During the three months ended March 31, 2009, the Company
recorded 847 new claims, 165 settlements, and 288 dismissals.
Of the 67,479 pending claims as of March 31, 2010, about 25,100
claims were pending in New York, about 14,200 claims were pending
in Mississippi, about 9,900 claims were pending in Texas and
about 2,100 claims were pending in Ohio, all jurisdictions in
which legislation or judicial orders restrict the types of claims
that can proceed to trial on the merits.
Substantially all of the claims the Company resolves are either
dismissed or concluded through settlements. To date, the Company
has paid two judgments arising from adverse jury verdicts in an
asbestos matter.
The first payment, in the amount of US$2.54 million, was made on
July 14, 2008, about two years after the adverse verdict, in the
Joseph Norris matter in California, after the Company had
exhausted all post-trial and appellate remedies. The second
payment in the amount of US$20,000 was made in June 2009 after an
adverse verdict in the Earl Haupt case in Los Angeles on April
21, 2009.
During the fourth quarter of 2007 and the first quarter of 2008,
the Company tried several cases resulting in defense verdicts by
the jury or directed verdicts for the defense by the court, one
of which, the Patrick O'Neil claim in Los Angeles, was reversed
on appeal and is currently the subject of further appellate
proceedings before the Supreme Court of California, which
accepted review of the matter by order dated Dec. 23, 2009.
Based in Stamford, Conn., Crane Co. manufactures highly
engineered industrial products. The Company provides products and
solutions to customers in the aerospace, electronics, hydrocarbon
processing, petrochemical, chemical, power generation, automated
merchandising, transportation and other markets.
ASBESTOS UPDATE: Crane Co. Still Mulls Appeal in Baccus Verdict
---------------------------------------------------------------
Crane Co. still intends to pursue all available right to appeal a
verdict in favor of James Baccus, according to a Company report,
on Form 8-K, filed on April 20, 2010 with the Securities and
Exchange Commission.
On March 14, 2008, the Company received an adverse verdict in the
James Baccus claim in Philadelphia, with compensatory damages of
US$2.45 million and additional damages of US$11.9 million.
The Company's post-trial motions were denied by order dated Jan.
5, 2009.
Based in Stamford, Conn., Crane Co. manufactures highly
engineered industrial products. The Company provides products and
solutions to customers in the aerospace, electronics, hydrocarbon
processing, petrochemical, chemical, power generation, automated
merchandising, transportation and other markets.
ASBESTOS UPDATE: Bid in Brewer Action Still Pending in La. Court
----------------------------------------------------------------
Crane Co. continues to pursue an appeal in Chief Brewer's
asbestos-related claim, according to a Company report, on Form 8-
K, filed on April 20, 2010 with the U.S. Securities and Exchange
Commission.
On May 16, 2008, the Company received an adverse verdict in the
Chief Brewer claim in Los Angeles. The amount of the judgment
entered was US$680,000 plus interest and costs.
Based in Stamford, Conn., Crane Co. manufactures highly
engineered industrial products. The Company provides products and
solutions to customers in the aerospace, electronics, hydrocarbon
processing, petrochemical, chemical, power generation, automated
merchandising, transportation and other markets.
ASBESTOS UPDATE: Plaintiffs' Bid in Woodard Action Still Pending
----------------------------------------------------------------
Plaintiffs in the Dennis Woodard asbestos claim appealed a ruling
entered in favor of Crane Co., according to a Company report, on
Form 8-K, filed on April 20, 2010 with the Securities and
Exchange Commission.
On Feb. 2, 2009, the Company received an adverse verdict in the
Dennis Woodard claim in Los Angeles. The jury found that the
Company was responsible for one-half of one percent (0.5 percent)
of plaintiffs' damages of US$16.93 million. However, based on
California court rules on allocation and damages, judgment was
entered against the Company in the amount of US$1.65 million,
plus costs.
Following entry of judgment, the Company filed a motion with the
trial court requesting judgment in the Company's favor
notwithstanding the jury's verdict, and on June 30, 2009 the
court advised that the Company's motion was granted and judgment
was entered in favor of the Company.
Based in Stamford, Conn., Crane Co. manufactures highly
engineered industrial products. The Company provides products and
solutions to customers in the aerospace, electronics, hydrocarbon
processing, petrochemical, chemical, power generation, automated
merchandising, transportation and other markets.
ASBESTOS UPDATE: Crane Filed Post-Trial Motions in Nelson, Bell
---------------------------------------------------------------
Crane Co. and plaintiffs filed post-trial motions in the James
Nelson and Larry Bell asbestos-related claims, and judgment will
be entered after those motions are resolved, according to a
Company report, on Form 8-K, filed on April 20, 2010 with the
Securities and Exchange Commission.
On March 23, 2010, a Philadelphia County, Pa., state court jury
found the Company responsible for a 1/11th share of a US$14.5
million verdict in the James Nelson claim, and for a 1/20th share
of a US$3.5 million verdict in the Larry Bell claim.
If necessary, the Company intends to pursue all available rights
to appeal the verdicts.
Based in Stamford, Conn., Crane Co. manufactures highly
engineered industrial products. The Company provides products and
solutions to customers in the aerospace, electronics, hydrocarbon
processing, petrochemical, chemical, power generation, automated
merchandising, transportation and other markets.
ASBESTOS UPDATE: Crane Co. Incurs $27.5M for Settlement, Defense
----------------------------------------------------------------
The gross settlement and defense costs incurred (before insurance
recoveries and tax effects) for Crane Co. totaled US$27.5 million
for the three months ended March 31, 2010, compared with US$22.3
million for the three months ended March 31, 2009.
The Company's gross settlement and defense costs incurred (before
insurance recoveries and tax effects) totaled US$110.1 million
for the year ended Dec. 31, 2009 and US$97.1 million for the year
ended Dec. 31, 2008. (Class Action Reporter, Jan. 29, 2010)
The Company's total pre-tax payments for settlement and defense
costs, net of funds received from insurers, for the three-month
periods ended March 31, 2010 and March 31, 2009 totaled a US$11.1
million net payment and a US$2.7 million net receipt, (reflecting
the receipt of US$14.5 million for full policy buyout from
Highlands Insurance Company), respectively.
Cumulatively through March 31, 2010, the Company has resolved (by
settlement or dismissal) about 69,600 claims. The related
settlement cost incurred by the Company and its insurance
carriers is about US$243 million, for an average cost per
resolved claim of US$3,493.
The average cost per claim resolved was US$4,781 during the year
ended Dec. 31, 2009 and US$4,186 during the year ended Dec. 31,
2008.
Based in Stamford, Conn., Crane Co. manufactures highly
engineered industrial products. The Company provides products and
solutions to customers in the aerospace, electronics, hydrocarbon
processing, petrochemical, chemical, power generation, automated
merchandising, transportation and other markets.
ASBESTOS UPDATE: Crane Long-Term Liability at $697MM at March 31
----------------------------------------------------------------
Crane Co.'s long-term asbestos liability was US$696,768,000 as of
March 31, 2009, compared with US$720,713,000 as of Dec. 31, 2009,
according to a Company report, on Form 8-K, filed on April 20,
2010 with the Securities and Exchange Commission.
The Company's current asbestos liability was US$100,300,000 as of
March 31, 2009, the same as for the period ended Dec. 31, 2009.
The Company's long-term asbestos insurance receivable was
US$200,184,000 as of March 31, 2010, compared with US$213,004,000
as of Dec. 31, 2009.
The Company's current asbestos insurance receivable was
US$35,300,000 as of March 31, 2010, the same as for the period
ended Dec. 31, 2009.
Based in Stamford, Conn., Crane Co. manufactures highly
engineered industrial products. The Company provides products and
solutions to customers in the aerospace, electronics, hydrocarbon
processing, petrochemical, chemical, power generation, automated
merchandising, transportation and other markets.
ASBESTOS UPDATE: Georgia Pacific's Bid Granted in Wooten Action
---------------------------------------------------------------
The U.S. District Court, Western District of Arkansas, Fort Smith
Division, granted Georgia Pacific Corporation's motion in a case
involving asbestos styled Marie Wooten, Executrix of the Estate
of Eddie Joe Wooten, Deceased, Plaintiff v. Georgia Pacific
Corporation, Defendant.
District Judge Robert T. Dawson entered judgment in Case No. 07-
2004 on Feb. 24, 2010.
Currently before the Court was Mrs. Wooten's Motion in Limine.
She moved this Court in limine to prevent Georgia Pacific
impeaching her witness, Vernon Cagle, with his 1990 convictions
for fraud and bank fraud. Mr. Cagle was released from prison in
1992.
Georgia Pacific had responded in opposition to Mrs. Wooten's
motion and contended that because the level of asbestos exposure
to which Mr. Wooten was exposed will be a highly contested issue
and Mr. Cagle will testify in that regard, the convictions should
be admitted.
Therefore, Mrs. Wooten's Motion in Limine was granted.
Also before the Court was Georgia-Pacific LLC's Motion for
Twelve-Person Jury. The Company's motion was granted.
Russell B. Winburn, Esq., of Odom Law Firm, P.A., in
Fayetteville, Ark., represented Marie Wooten.
Brent Karren, Esq., of Bailey Crowe Kugler LLP in Dallas, Jason
Reed, Esq., John Peyton Perkins III, Esq., of Shults Law Firm,
LLP in Little Rock, Ark., Steven T. Shults, Esq., of Shults Law
Firm in Little Rock, Ark., William Randall Bassett, Jr., Esq.,
King Spalding, Esq., of Atlanta, represented Georgia Pacific
Corporation.
ASBESTOS UPDATE: Sealtec Otago Fined NZD30T for Safety Breaches
---------------------------------------------------------------
Sealtec Otago Ltd, a roof repair and sealing company based in
Dunedin, New Zealand, was fined NZD30,000 after its contractor
water-blasted a brittle asbestos roof, spreading contamination
over nearby surroundings, stuff.co.nz reports.
The Company hired the contractor last May 2009 to water-blast the
corrugated asbestos roof of an engineering business before a
sealant was applied.
The engineering business reported suspected asbestos
contamination to the Department of Labour after residue and fiber
was deposited on floors, machinery and cars.
Sealtec admitted two charges under the Health and Safety in
Employment Act 1992, and was fined NZD15,000 on each charge in
Dunedin District Court on April 21, 2010.
The charges were of failing to take all practicable steps to
ensure the safety of the contractor, and of failing to take all
practicable steps to ensure that a hazard (asbestos) did not harm
people in the vicinity of a place of work.
Department of Labour Dunedin workplace service manager Mark
Murray said the Company and the contractor lacked experience of
working with asbestos and did not know the dangers of water-
blasting it.
The roof was brittle asbestos, which meant the contractor could
have fallen through it, six meters to the ground, Mr. Murray
said.
ASBESTOS UPDATE: Public Hearing in Eternit Case Held on April 12
----------------------------------------------------------------
An asbestos-related public hearing involving Eternit was held on
April 12, 2010 in the Court of Justice in Turin, Italy, according
to ground report.
The trial chronicles 2,052 victims between 1952 and 2008, between
workers and citizens, where Eternit had its factories.
The public prosecutor Raffaele Guariniello charges with permanent
intentional environmental disaster multinational company top
management, Stephan Schmidheiny and the baron Jean Marie Louis de
Cartier de Marchienne.
Associations and trade unions from France, Belgium and
Switzerland follow the lawsuit.
During the April 12, 2010 public hearing, Nicola Pondrano, the
first witness called by the public prosecutor, described the
dangerous situation in Eternit factories.
ASBESTOS UPDATE: Clarence House Courtier Death Linked to Hazard
---------------------------------------------------------------
An inquest heard that the death of Sir Alastair Sturgis Aird, a
courtier who served the Queen Mother for more than 40 years, was
linked to asbestos at the Clarence House in London, the Dorset
Echo reports.
The inquest was told that Sir Alastair died from an industrial
related disease after coming into contact with asbestos while
working at Clarence House.
Sir Alastair, the Queen Mother's former private secretary, who
spent his last years living at Marnhull, died at the age of 78 on
Sept. 30, 2009 after being diagnosed with peritoneal
mesothelioma.
An inquest into Sir Alastair's death held at County Hall in
Dorchester heard how he "always believed" he had come into
contact with asbestos while carrying out his royal duties at
Clarence House. He retired from his royal role and moved to
Dorset in 2002. He was diagnosed in with mesothelioma in
September 2007.
Graham Sharpe, director of property section of the Royal
Household, said when the asbestos was removed in around 1996 it
was done so in accordance with regulations and the buildings were
vacated.
West Dorset Coroner Michael Johnston said, "I think the
likelihood is that he was exposed to asbestos while working at
Clarence House. I am going to record a verdict that he died of an
industrial disease."
ASBESTOS UPDATE: De Havilland Worker's Death Linked to Exposure
---------------------------------------------------------------
An inquest at Chester, England, heard that the death of Edna
Jones, who was a former aircraft factory cleaner at the De
Havilland (n/k/a Airbus) aircraft factory in Broughton, was
linked to exposure to asbestos, The Chester Standard reports.
Mrs. Jones died at the age of 74 after developing mesothelioma
caused by a long period of exposure to asbestos in her place of
work.
Mrs. Jones worked for the firm from 1961 to 1962 and husband
Colin Jones told how she came directly into contact with dust
from pipe work being carried out by aircraft fitters. She later
went onto carry out office work for the firm.
Mr. Jones, a retired aircraft fitter who also worked for the firm
at the same time as his late wife, said, "In the sun you could
see all the dust coming from the pipes. As we were working she
would be vacuuming it up."
Mrs. Jones, who later became a housewife and mother, was
diagnosed with mesothelioma in December 2009. Last August 2009,
she was admitted to the Countess of Chester Hospital after
suffering increased respiratory problems. She died at the
hospital on Aug. 27, 2009.
Returning a verdict of death caused by an industrial disease,
Cheshire Deputy Coroner Dr. Janet Napier said, "This is very sad.
It is very unfortunate and seems rather like capital punishment
for people who do their jobs, work hard and never complain."
ASBESTOS UPDATE: Health and Safety Criticized for Breaching Laws
----------------------------------------------------------------
The Belfast Telegraph, on April 20, 2010, reported that the
Health and Safety Executive was criticized by the Industrial
Tribunals for breaching its own guidelines.
While an industrial tribunal upheld HSE's decision to issue a
demolition company with a prohibition notice following the
discovery of asbestos at a site in County Antrim, Northern
Ireland, it heavily criticized HSE's actions.
Asbestos was found by HSE inspectors at the Courtaulds site in
Carrickfergus in July 2009 but the quango, which falls under the
remit of the Department of Enterprise Trade and Investment, has
been accused of "signal failure" in the case.
The tribunal stated in its conclusions, "The essence of Health
and Safety legislation concerns the reasonable and sensible
management of risk. This was lacking in this case.
"The risk posed by the asbestos contamination of 1,700 square
meters of this site should have been ameliorated much more
quickly and not left to chance and the elements.
"It seems extraordinary to us that having identified a risk of
serious personal injury, and after sampling had shown a wide area
of contamination and further that third parties were identified
as having access to the site who had no knowledge or indeed
expertise of the hazard identified, the HSE took absolutely no
steps to minimize the risk until this tribunal expressed its
disquiet and concern."
There was one positive outcome for HSE after the panel
unanimously affirmed HSE's Prohibition Notice, which was served
on Bridgeline Demolition and its sister company Bridgeline
Environmental Services last July 2009.
The ruling comes almost two months after an Industrial Tribunal
hearing appeal by Bridgeline concluded at Killymeal House in
Belfast's Gasworks.
ASBESTOS UPDATE: Former Hardie Execs Filed Appeal Last April 19
---------------------------------------------------------------
On April 19, 2010, nine former James Hardie Industries N.V.
directors and executives lodged an appeal, claiming a judge was
wrong to infer a 2001 media release on asbestos compensation was
approved by the board, The Sydney Morning Herald reports.
On April 19, 2010, Tom Bathurst QC told a New South Wales Court
of Appeal that evidence presented at their trial was
"insufficient to find, on the balance of probabilities," that the
media release was ever presented to the board.
In April 2009, NSW Supreme Court judge Ian Gzell found 10 former
executives and directors breached their duty of care with
misleading statements about the adequacy of a compensation fund
for asbestos victims, and a corporate restructure in 2003.
Nine of them are appealing the findings, with Mr. Bathurst
representing four directors who breached their duties in relation
to the media release that suggested the asbestos compensation
fund was fully funded.
Mr. Bathurst said two draft media releases - one made at 7:24
a.m. and another at 9:35 a.m. on the morning of a James Hardie
board meeting on Feb. 15, 2001 - were not tabled and approved at
that day's board meeting.
The media release sent to the Australian Securities Exchange said
a compensation fund to be set up to provide a fund for asbestos
victims was "fully funded." However, it turned out the fund was
vastly underfunded.
Mr. Bathurst is representing former non-executive directors
Michael Brown, Meredith Hellicar, Michael Gillfillan and Martin
Koffel. The other five appealing are Dan O'Brien, Greg Terry,
Peter Willcox, Peter Shafron and Phillip Morley.
The penalties have been stayed pending the outcome of the appeal.
The appeal is being heard by NSW Court of Appeal chief justice
James Spigelman, Justice Margaret Beazley and Justice Roger
Giles. It is expected to run for nine days.
ASBESTOS UPDATE: Injury Cases Continuing Against Lockheed Martin
----------------------------------------------------------------
Like many other industrial companies in recent years, Lockheed
Martin Corporation continues to be a defendant in lawsuits
alleging personal injury as a result of exposure to asbestos
integrated into its premises and certain historical products.
The Company has never mined or produced asbestos and no longer
incorporates it in any manufactured products. It has been
successful in having a substantial number of these claims
dismissed without payment.
The remaining resolved claims have settled for amounts that are
not material individually or in the aggregate, according to the
Company's quarterly report filed on April 21, 2010 with the
Securities and Exchange Commission.
A substantial majority of the asbestos-related claims have been
covered by insurance or other forms of indemnity.
Based in Bethesda, Md., Lockheed Martin Corporation is a global
security company that principally is engaged in the research,
design, development, manufacture, integration, and sustainment of
advanced technology systems and products. The Company provides
management, engineering, technical, scientific, logistic, and
information services.
ASBESTOS UPDATE: Nichols Case v. 45 Firms Filed in St. Clair Co.
----------------------------------------------------------------
Ronald A. and Linda Nichols, a Massachusetts couple, on April 9,
2010, filed an asbestos lawsuit against 45 defendant corporations
in St. Clair County Circuit Court, Ill., The Madison/St. Clair
Record reports.
The Nichols case is the 14th asbestos case filed in St. Clair
County in 2010. David I. Cates, Esq., and Judy L. Cates, Esq., of
the Cates Law Firm in Swansea, Ill., represent the Nichols couple
in Case No. 10-L-165.
In the complaint filed, the Nichols couple alleges the defendants
caused Mr. Nichols to develop mesothelioma after his exposure to
asbestos-containing products throughout his career.
Mr. Nichols worked at the basic training electrician's mate
school for the U.S. Navy in 1957; worked as a machinist mate on
the USS Hailey from 1957 until 1959; worked as an assistant parts
manager at McKulkin Chevrolet from 1959 until 1960; worked as an
operator, laborer, boiler and furnace worker at Gas Service Inc.
from 1960 until 1987; performed home remodeling from 1965 until
1967; and worked as a shadetree mechanic from the 1950s until the
1960s, according to the complaint.
ASBESTOS UPDATE: Safe Environment Fined for Not Paying Employees
----------------------------------------------------------------
Safe Environment of America, Inc., an asbestos, lead and mold
abatement company based in Ludlow, Mass., was ordered to pay over
US$27,000 in fines and restitution for intentionally not paying
their employees properly, according to an April 20, 2010 press
release by the Massachusetts Attorney General's Office.
Safe Environment and its President, 49-year-old Todd M.
Scyocurka, of Ludlow, Mass., have been cited by Attorney General
Martha Coakley's Office for violating the state's prevailing
wage, payroll records keeping and wage laws.
The violations are related to lead abatement work performed from
June 2007 through April 2008 at the Fall River Housing Authority
Pleasant View Building Modernization public works project.
Attorney General Coakley said, "Particularly in today's economy,
it is critical that employees are properly compensated for the
hours that they work. Our office is committed to enforcing the
state's wage and hour laws, both to safeguard the rights of
hardworking men and women, and to ensure a level playing field
for businesses who do play by the rules."
In July 2009, the Attorney General's Fair Labor Division received
a wage complaint from a former employee of Safe Environment,
alleging that he had not been paid for work performed for the
company. Investigators from the Attorney General's Office cited
Safe Environment and Mr. Scyocurka after they discovered that the
company intentionally failed to pay the prevailing wage to six
employees.
The citation orders Safe Environment and Mr. Scyocurka to pay
US$1,481.39 in restitution to those six employees and a US$2,000
fine to the Commonwealth. Mr. Scyocurka and his company were also
cited for failing to pay an employee wages in a timely manner
from November 2007 through April 2008, and were ordered to pay
restitution in the amount of US$1,637.50 and a US$5,000 fine.
Additionally, Safe Environment and Mr. Scyocurka were cited
US$5,000 for intentionally failing to submit true and accurate
certified payroll records to the awarding authority; US$7,500 for
failing to furnish payroll records to the Attorney General's
Office for inspection and US$5,000 for intentionally failing to
submit certified payroll records to the awarding authority on a
weekly basis.
The matter was investigated by Inspector Joseph Drzyzga and
handled by Assistant Attorney General Bruce Trager, both of
Attorney General Coakley's Fair Labor Division.
ASBESTOS UPDATE: N.C. Appeals Court Affirms Decision in Plummer
---------------------------------------------------------------
The Court of Appeals of North Carolina affirmed a Dec. 5, 2008
ruling of the North Carolina Industrial Commission, which denied
Bobby Lee Plummer's request for worker's compensation benefits
based on his contention that he had contracted asbestosis as a
result of exposure to that substance in the course and scope of
his employment with Norandal, USA.
The case is styled Bobby Lee Plummer, Employee-Plaintiff v.
Norandal, USA, Employer-Defendant, and CIGNA/ACE USA/ESIS,
Carrier-Employer-Defendant.
Judges Sam Ervin IV, Martha A. Geer and Donna S. Stroud entered
judgment in Case No. COA09-382 on March 2, 2010.
The Norandal facility is located in Salisbury and was built in
about 1965. Mr. Plummer worked for Norandal and its predecessors
briefly in the fall of 1974, was rehired on Jan. 1, 1976, and was
still employed by Norandal at the time of the May 1, 2006 hearing
held before Deputy Commissioner Stephen T. Gheen.
On April 4, 2002, Mr. Plummer filed a Form 18B seeking worker's
compensation for asbestosis. On April 17, 2003, Mr. Plummer
requested that his claim be assigned for hearing. On April 24,
2003, Norandal and ACE USA/Cigna filed a Response to Request that
Claim be Assigned for Hearing in which they denied
compensability.
On Dec. 25, 2003, Mr. Plummer, Norandal, and CIGNA/ACE entered
into a stipulation, which recited that Defendants "deny that
[Plaintiff] was exposed to the hazards of asbestos during his
employment with Norandal" and that, in the event that Mr. Plummer
"was injuriously exposed to the hazards of asbestos during his
employment with Norandal," then "CIGNA/ACE and Norandal shall be
responsible for any benefits awarded to [Plaintiff] for any
occupational disease or other compensable condition under the
Worker's Compensation Act."
On Feb. 23, 2004, Norandal and ACE USA/ESIS filed a Form 61
denying liability.
A consolidated hearing involving this and four other cases took
place before Chief Deputy Commissioner Stephen T. Gheen beginning
May 1, 2006. In an Order and Award filed March 3, 2008, Chief
Deputy Commissioner Gheen denied Mr. Plummer's claim for workers'
compensation benefits. Mr. Plummer appealed Chief Deputy
Commissioner Gheen's decision to the Commission.
By means of an Opinion and Award by Commissioner Christopher
Scott filed on Dec. 5, 2008, the Commission affirmed Chief Deputy
Commissioner Gheen's decision with minor modifications.
On Dec. 17, 2008, Mr. Plummer noted an appeal from the
Commission's decision to this Court.
Wallace and Graham, P.A., by Edward L. Pauley, Esq., represent
Mr. Plummer.
Hedrick, Gardner, Kincheloe & Garofalo, L.L.P., by Harmony Whalen
Taylor, Esq., and William A. Smith, Esq., represented defendant-
appellees.
ASBESTOS UPDATE: Del. Court Reverses Ruling in Steppi's Lawsuit
---------------------------------------------------------------
The Supreme Court of Delaware reversed the ruling of the Superior
Court, which overturned an award of total disability benefits by
the Industrial Accident Board to James A. Steppi.
The case is styled James A. Steppi, Claimant-Appellant v. Conti
Electric, Inc., Employer-Appellee.
Judges Myron Steele, Randy Holland, Carolyn Berger, Jack Jacobs,
and Henry DuPont Ridgely entered judgment in Case No. 476, 2009
on March 2, 2010.
Mr. Steppi appealed from the Superior Court's decision
overturning an award of total disability benefits by the Board.
He contended that the Board's decision approving his worker's
compensation claim was supported by substantial evidence and that
the Superior Court committed reversible error by holding that the
findings of the Board were clearly wrong.
Mr. Steppi worked as an electrician with Conti Electric and was
assigned to work at the Valero Petroleum Refinery in Delaware
City in the "Sulfur Recovery Unit" ("SRU"). He and his fellow
workers carried two individual mobile gas meters intended to warn
of the presence of certain types of gas, including hydrogen
sulfide. Additionally, five stationary gas meters were located at
the more dangerous work-sites.
On Dec. 11, 2006, Mr. Steppi left the SRU to retrieve materials
and supplies from a supply trailer. As he was walking toward the
supply trailer, he recalled that a benzene leak had recently
occurred in the area. He proceeded another 40 feet and felt his
body become very warm and he suddenly felt very woozy. After
arriving at the supply trailer, the materials foreman told him to
sit down. An ambulance was called.
When the EMT workers and ambulance arrived they assessed Mr.
Steppi and prepared an EMT report. The EMT workers transported
Mr. Steppi to the hospital. Prior to leaving the hospital, Mr.
Steppi had no trouble walking.
Mr. Steppi was driven back to work to retrieve his lunch box, and
he drove himself home from the plant. After the incident, he saw
a series of doctors because of increasingly severe breathing,
heart and liver problems, as well as confusion and lack of focus.
He had previously seen one of the doctors for an asbestos claim,
and was afraid that his asbestosis had progressed to lung or
liver cancer.
At the hearing before the Board, all experts agreed that
"something" happened to Mr. Steppi on Dec. 11, 2006, while he was
at work.
The Board found that "Claimant has met his burden of proof that
he was exposed to hydrogen sulfide, and that his somatoform
disorder is related to the Dec. 11, 2006 work incident."
Notwithstanding Conti's argument that there was no gas leak, the
Board concluded there was after finding Mr. Steppi's testimony
and the testimony of Drs. Eliasson and Bleecker persuasive.
Specifically, the Board noted evidence of the lack of
dependability of the gas sensors and determined that there was a
gas leak even though the sensors did not go off.
Conti appealed and the Superior Court reversed after finding no
evidence of a gas leak and no causal connection between the
incident and Mr. Steppi's disability. This appeal followed.
ASBESTOS UPDATE: Court Denies Conrail's Summary Judgment Motion
---------------------------------------------------------------
The U.S. District Court, District of Columbia, denied
Consolidated Rail Corporation's (Conrail) motion for summary
judgment in an asbestos case involving James T. Ray on behalf of
Harold F. Boyd.
The case is styled Consolidated Rail Corporation, Plaintiff v.
James T. Ray, for the Estate of Harold F. Boyd, Defendant.
District Judge Ricardo M. Urbina entered judgment in Civil Action
No. 07-1148 (RMU) on March 2, 2010.
Mr. Boyd was a railroad worker employed by Erie Lackawanna from
May 1942 through March 1976. After the conveyance of Erie
Lackawanna's rail assets to Conrail, Mr. Boyd worked for Conrail
from April 1976 until his retirement in 1978. On May 8, 2002, Mr.
Ray filed a complaint in a state court of Ohio (Ohio complaint)
against various railroad defendants, including Conrail.
The Ohio complaint alleged that during the course of his
employment as a railroad worker, Mr. Boyd was negligently exposed
to asbestos, in violation of the FELA.
Conrail filed this complaint on June 26, 2007, seeking a
declaratory judgment that the Rail Act precludes the estate from
holding it liable for Mr. Boyd's pre-conveyance exposure to
asbestos by Erie Lackawanna. In addition, Conrail asked the court
to enjoin the estate from seeking to hold Conrail liable for any
FELA violations committed by Erie Lackawanna. The parties stayed
the Ohio action pending the resolution of this action.
On June 12, 2009, Mr. Ray moved for judgment on the pleadings
under Federal Rule of Civil Procedure 12(c). On July 2, 2009,
Conrail moved for summary judgment.
The court granted Mr. Ray's motion for judgment on the pleadings
and denied Conrail's motion for summary judgment.
*********
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