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/raid1/www/Hosts/bankrupt/CAR_Public/110107.mbx C L A S S A C T I O N R E P O R T E R Friday, January 7, 2011, Vol. 13, No. 5 Headlines ADVANCED HEARING: Claims Must Be Filed By Apr. 1, 2011 ALBERTO-CULVER: February 21 Class Action Settlement Hearing Set ANTHEM INSURANCE: Shareholder Class Action Pending in Indiana BROOKLAND GREENS: Faces Class Action Over Remnant Methane Gas BUCYRUS INTERNATIONAL: Being Sold to Caterpillar for Too Little DIESEL USA: Removes "Labrador" Labor Complaint to N.D. Calif. LERNER SAMPSON: Faces Class Action Over Frivolous Foreclosures LEUCADIA NATIONAL: Judge Junks Bid to Dismiss Racketeering Suit LOWER MERION: November Trial Set for 2007 Discrimination Suit MATCH.COM LLC: Sued Over Fraudulent Profiles on Dating Site MECOX LANE: Pomerantz Law Firm Files Securities Class Action NEW BALANCE: Faces Class Action Over Toning Shoes NORTHWEST PIPE: Fraud Claims Added in Shareholders' Class Action VODAFONE GROUP: Taskforce to Fix Network After Legal Threat SALSA CYCLES: Recalls 6,500 Salsa Handlebar Stems UNITEDHEALTH GROUP: SPDR(R) Funds Receive Settlement Payments * Attorney Generals Expect Foreclosure Settlements with Banks * Securities Class Action Filings in Ninth Circuit Declines Asbestos Litigation ASBESTOS UPDATE: Parker Resident Sentenced to 40-Day Jail Term ASBESTOS UPDATE: Shreve, Webster Lawsuits Filed in St. Clair Cty. ASBESTOS UPDATE: Union Carbide, Others Seek Reforms in Madison ASBESTOS UPDATE: Cooperative Group Fined for Safety Violations ASBESTOS UPDATE: U.K. Govt. to Give GBP5,000 Payout to Victims ASBESTOS UPDATE: Court OKs $3.6MM for Cleanup of Encycle/ASARCO ASBESTOS UPDATE: Travelers to Pay $445MM for Asbestos Settlements ASBESTOS UPDATE: Miss. DEQ Probes Possible Breaches at Lafayette ASBESTOS UPDATE: 7 Former Hardie Directors Cleared in ASIC Claim ASBESTOS UPDATE: Quincy Off the Hook for Abatement at Mall Site ASBESTOS UPDATE: Vukoja Family Seeks Help in Compensation Claim ASBESTOS UPDATE: Schuderer's Family Awarded $1MM Payout in N.Y. ASBESTOS UPDATE: Aussie Ex-Teacher Aide Files Compensation Claim ASBESTOS UPDATE: Halifax Inquest Rules on Former Cleaner's Death ASBESTOS UPDATE: Abatement at Pearson Middle School Costs $390T ASBESTOS UPDATE: Navistar Int'l. Still Subject to Exposure Cases ASBESTOS UPDATE: Esterline Subject to Potential Asbestos Actions ASBESTOS UPDATE: Joy Global Still Involved in Liability Actions ASBESTOS UPDATE: Tipping Widow Gets GBP95,000 in Asbestos Payout ASBESTOS UPDATE: Crestmoor Community in Calif. Cleared of Hazard ASBESTOS UPDATE: Inquest Links Cheshire Worker's Death to Hazard ASBESTOS UPDATE: Asbestos at Bull Savannah Still to be Removed ASBESTOS UPDATE: Reservoir Resident Seeking Payout From Goodyear ASBESTOS UPDATE: EPA Releases Results on Tests at Zonolite Site ASBESTOS UPDATE: Asbestos Mine at Netaji Ka Bara, India Reopened ASBESTOS UPDATE: Deleon Awaits Sentencing for Asbestos Breaches ASBESTOS UPDATE: Asbestos Claims in New South Wales Still Rising ASBESTOS UPDATE: Hazard at Mt. Umunhum's Vicinity to be Removed ASBESTOS UPDATE: Riverhead, N.Y Still to Hire Removal Contractor ASBESTOS UPDATE: No Unsafe Asbestos Found at Ambler's Tap Water ASBESTOS UPDATE: Dist. Ct. Plan Hearing in Leslie Controls Case ASBESTOS UPDATE: Court Affirms Board's Decision in Lykins Action ASBESTOS UPDATE: N.C. Appeals Court OK'd Ruling in Kingston Case ASBESTOS UPDATE: Court Partially Grants Waters' Dismissal Motion ASBESTOS UPDATE: Split Ruling Issued in Anco Insulations Lawsuit ASBESTOS UPDATE: Mo. Court Affirms Remand Motion in Elsea Action ASBESTOS UPDATE: Telecoms Engineer Awarded GBP115T Compensation ASBESTOS UPDATE: U.K. Inquest Rules on Derby Technician's Death ASBESTOS UPDATE: Laurel Residents Claim Asbestos Made Them "Ill" ASBESTOS UPDATE: Hazard Removed From Morony Natatorium Basement ASBESTOS UPDATE: Hazard to be Cleared From Garden Walk in Chico ASBESTOS UPDATE: Trustee Wants Dismissal of Quigley's Bankruptcy ASBESTOS UPDATE: Greenford to Assume Abatement at Three Schools ASBESTOS UPDATE: Cleanup Ongoing at Liverpool Elementary School ASBESTOS UPDATE: Kittle Case v. 97 Firms Filed Dec. 10 in W.Va. ASBESTOS UPDATE: Most 2010 Asbestos Actions Given to Judge Floyd ASBESTOS UPDATE: Judge to Rule on W.R. Grace Plan This Month ASBESTOS UPDATE: Mancuso Ordered to Pay $17,972 in Restitution ASBESTOS UPDATE: Seward Museum Cleanup, Demolition to Cost $39T ASBESTOS UPDATE: Cleanup at Aspen City Market to Start Jan. 2011 ASBESTOS UPDATE: Kumar Urged to Stop Asbestos Factory Operations ASBESTOS UPDATE: Hazard Cleared From Rongotai College Gym Ruins ASBESTOS UPDATE: Asbestos "Timebomb" Continues to "Tick" in York ASBESTOS UPDATE: Sellwood Widow Claims Victory and Compensation ASBESTOS UPDATE: Miss. Court Junks Defendants' Bids in ICRC Case ASBESTOS UPDATE: Tenn. Appeal Court OKs Ruling in Miller Action ASBESTOS UPDATE: Appeals Court Reverses Ruling in Laverty Action ASBESTOS UPDATE: District Court Junks McCurdy's Move for Relief ASBESTOS UPDATE: La. Court Upholds Ruling in Rapid-American Case ASBESTOS UPDATE: Summary Judgment Denied in Faddish Case ********* ADVANCED HEARING: Claims Must Be Filed By Apr. 1, 2011 ------------------------------------------------------ STATE OF OHIO BUTLER COUNTY COMMON PLEAS COURT Craig ) ) v. ) Case No. CV2009-01-0196 ) Advanced Hearing ) Technologies, Inc. ) NOTICE OF FINAL JUDGMENT ENTRY APPROVING SETTLEMENT OF CLASS ACTION To: Ohio Residents who purchased hearing aid(s) from Advanced Hearing Technologies, Inc. or who were sued by Advanced Hearing Technologies, Inc. between January 1, 2006, and January 20, 2009, and who have not previously excluded themselves in writing: You are hereby notified that there has been entered a final judgment entry approving settlement of the class action. Details of said judgment entry can be reviewed at http://www.proseniors.org/AHTClassAction/ If the class member is deceased, returned the hearing aids within 60 days, or incurred actual damages because he/she was sued, said class member may be entitled to compensation if he/she submits a claim for damages. Class members who wish to file claims for damages must send an affidavit and documentation to: Advanced Hearing Technologies Class Action Litigation Notice Administrator c/o Pro Seniors, Inc. 7162 Reading Road, Suite 1150 Cincinnati, OH 45237 Said claim must be received by the Notice Administrator no later than APRIL 1, 2011. * * * Notice of this class action proceeding appeared in the Feb. 17, 2010, edition of the Class Action Reporter, and notice of the Dec. 21, 2010, Settlement Hearing appeared in the Class Action Reporter on Nov. 2, 2010. ALBERTO-CULVER: February 21 Class Action Settlement Hearing Set --------------------------------------------------------------- IN THE COURT OF THE CHANCERY OF THE STATE OF DELAWARE IN RE ALBERTO-CULVER COMPANY Consolidated SHAREHOLDER LITIGATION C.A. No. 5873-VCS SUMMARY NOTICE OF PENDENCY AND PROPOSED SETTLEMENT OF SHAREHOLDER LITIGATION TO: ALL PERSONS AND ENTITIES WHO HELD SHARES OF ALBERTO CULVER COMPANY ("ALBERTO-CULVER") COMMON STOCK EITHER OF RECORD OR BENEFICIALLY, TOGETHER WITH THEIR SUCCESSORS AND ASSIGNS, AT ANY POINT BETWEEN AND INCLUDING SEPTEMBER 27, 2010 AND THE CLOSING OF THE MERGER (AS DEFINED HEREIN). YOU ARE HEREBY NOTIFIED, under Delaware Court of Chancery Rule 23 and an Order of the Court, that: (i) the above-captioned action (the "Action") is pending as a class action in the Court of Chancery of the State of Delaware (the "Court"), and that the Court has preliminarily certified a settlement class in the Action that includes all persons and entities (and their successors and assigns) who held shares of Alberto-Culver common stock at any point between and including the September 27, 2010 announcement of the sale of Alberto-Culver to Unilever N.V., Unilever PLC, Conopco, Inc., and Ace Merger, Inc. (collectively, "Unilever") and the closing of the transaction with Unilever (the "Merger"), excluding Defendants, their subsidiary companies, affiliates and members of their immediate families (the "Class"); and (ii) a proposed settlement (the "Settlement") has been reached on behalf of the Plaintiffs, Plaintiffs' Counsel, and each and every member of the Class dismissing all claims asserted against the Defendants in this Action. A hearing will be held before the Court, in the New Castle County Courthouse, 500 North King Street, Wilmington, DE 19801, on February 21, 2011 at 2:00 p.m. (the "Settlement Hearing Date"), to, among other things, determine whether the proposed Settlement should be approved by the Court as fair, reasonable and adequate; to determine whether Plaintiffs and Plaintiffs' Counsel have adequately represented the Class; and to consider the application of Plaintiffs' Counsel for an award of attorneys' fees and expenses. IF YOU WERE AN ALBERTO-CULVER SHAREHOLDER AT ANY POINT BETWEEN AND INCLUDING SEPTEMBER 27, 2010 AND THE CLOSING OF THE MERGER, YOUR RIGHTS WILL BE AFFECTED BY THE SETTLEMENT OF THE ACTION. This is a summary notice only. Additional information about the claims asserted in the Action and the terms and benefits of the proposed Settlement are available in the full printed Notice of Pendency and Proposed Settlement of Shareholder Litigation (the "Notice"). A copy of the Notice is available at: http://www.alberto.com http://www.gelaw.com http://www.blbglaw.com If you were an Alberto-Culver shareholder at any point between and including September 27, 2010 and the closing of the Merger, you will be bound by the Order of the Court granting final approval to the Settlement. Any objections to the Settlement and/or Plaintiffs' Counsel's application for an award of attorneys' fees and expenses must be filed no later than ten business days before the Settlement Hearing Date, in accordance with the procedures set forth in the Notice. By Order of The Court ANTHEM INSURANCE: Shareholder Class Action Pending in Indiana ------------------------------------------------------------- Delaney & Delaney LLC, Keller Rohrback L.L.P., Zagrans Law Firm LLC, Berger & Montague, P.C. and Becker Law Firm Co., L.P.A., on Tuesday disclosed that former members of Anthem Insurance Company who received shares of stock as a result of Anthem's demutualization in 2001 face the risk that the claims asserted in a pending federal court action might not be certified for class action treatment. The lawsuit known as Jorling v. Anthem was filed on June 26, 2009 against Anthem Inc. and Anthem Insurance, Inc. (now known as WellPoint, Inc.) in the United States District Court for the Southern District of Indiana. Plaintiff seeks to have the Court certify the case as a class action on behalf of all former Anthem members who received shares of Anthem common stock as compensation in the demutualization. The lawsuit alleges that each former mutual member in the proposed class received fewer shares of Anthem common stock than they were legally entitled to receive. A companion lawsuit, Ormond v. Anthem, was filed in 2005 on behalf of a class of the former mutual members who received cash compensation in the demutualization, and who contend that they, too, received less cash than they were legally entitled to receive in the demutualization process. That lawsuit was certified as a class action by the same Court in September 2009. On December 23, 2010, the Honorable Tanya Walton Pratt of the United States District Court for the Southern District of Indiana issued an order denying class certification "for now" on the basis that Mr. Jorling is not typical of the proposed class with respect to two of the claims alleged in the case and with respect to any person who was covered by Anthem Insurance as part of an employer- sponsored group health insurance benefit. However, the Court specifically stated that "the certification question may be revisited" if the pleadings are amended or additional parties intervene or are joined in the case. If you received shares of Anthem common stock in connection with Anthem's 2001 demutualization, you may be eligible to serve as a class representative if you: 1. Had Anthem insurance through an employer-sponsored group insurance policy; or 2. Were a member of Community Mutual Insurance Company (Anthem's predecessor in Ohio) at any time from 1990 to 1995; or 3. Were a member of Blue Cross & Blue Shield of Connecticut, Inc. (Anthem's predecessor in Connecticut) at any time from 1990 to 1997. If you wish to discuss the Jorling v. Anthem litigation or have any questions, please contact: Cari Laufenberg, Esq. Jennifer Tuato'o, Paralegal KELLER ROHRBACK L.L.P. 1201 Third Avenue, Suite 3200 Seattle, WA 98101-3052 Telephone: (800) 776-6044 E-mail: claufenberg@kellerrohrback.com If you would like further information about the Ormond lawsuit, please visit http://www.anthemcashclass.com/ BROOKLAND GREENS: Faces Class Action Over Remnant Methane Gas ------------------------------------------------------------- Michael Randall, writing for Berwick Leader, reports Stevensons Rd Landfill dominated Casey residents' psyches with worries over remnant methane gas in the Brookland Greens Estate, a class action by its residents and the wider impact the clean-up bill would have on rates. Mediation talks between Slater and Gordon, representing about 600 Brookland Greens residents, Casey Council and 11 other parties broke down in October, leading to action that will see the case heard in the Supreme Court in July. Last July, resident Rachel McNamara -- whose home backs on to the landfill -- told the harrowing story of her child's battle to recover from brain surgery, while contractors toiled on mediation works outside her bedroom. The then ALP state government gave the council $20.5 million for the works, but the Liberals trumped that, with the announcement of an extra $17.3 million, just before the state election. Cranbourne racing identities Sylvia and Eddie Laing bore the brunt of remnant methane gas in their Powerscout Retreat home and were forced into a rental property as the council struggled to extract the gas. The council decided to buy their property and provide compensation in October. Also during the year, Endeavour Hills resident Tricia Clarke led the charge to keep rates low. A planned 11.69% rate rise was held to 5.96% in August, at the expense of the Casey Chiefs Rugby Club, which missed out on a pavilion at its Casey Fields home. BUCYRUS INTERNATIONAL: Being Sold to Caterpillar for Too Little --------------------------------------------------------------- Courthouse News Service reports that mining equipment manufacturer Bucyrus International is selling itself too cheaply to Caterpillar through an unfair process, including a $200 million termination fee, for $92 a share or $8.6 billion, Bucyrus shareholders claim in Federal Court. A copy of the Complaint in Impens v. Sullivan, et al., Case No. 10-cv-01179 (E.D. Wis.), is available at: http://www.courthousenews.com/2011/01/03/SCA.pdf The Plaintiff is represented by: Eduard Korsinsky, Esq. William Scott Holleman, Esq. LEVI & KORSINSKY, LLP 30 Broad Street, 15th Floor New York, NY 10004 Telephone: (212) 363-7500 E-mail: ek@zlk.com sholleman@zlk.com - and - Robert L. Elliott, Esq. 633 W. Wisconsin Avenue, Suite 1001 Milwaukee, WI 53203 Telephone: (414) 225-9000 DIESEL USA: Removes "Labrador" Labor Complaint to N.D. Calif. ------------------------------------------------------------- Megan Labrador, individually and on behalf of others similarly situated v. Diesel U.S.A., Inc., et al., Case No. 10-505710 (Calif. Super. Ct., San Francisco Cty.), was filed on December 1, 2010. The plaintiff, who was employed by defendants from November 2004 to June 27, 2008, as a sales associate, accuses the clothing designer and retailer of failing to compensate its employees for all hours worked, non-payment of overtime wages, failing to provide rest and meal periods, failing to pay all wages due upon termination of employment, and failing to furnish itemized wage statements, in violation of California's wage and hour laws. On the basis of original diversity jurisdiction, Diesel U.S.A., Inc., on January 3, 2011, removed the lawsuit to the Northern District of California, and the Clerk assigned Case No. 11-cv-00014 to the proceeding. The Plaintiff is represented by: Daniel L. Feder, Esq. LAW OFFICES OF DANIEL FEDER 332 Pine Street, Suite 700 San Francisco, CA 94104 Telephone: (415) 391-9476 E-mail: danfeder@pacbell.net The Defendant is represented by: Harry I. Johnson, III, Esq. Paul Rigali, Esq. ARENT FOX LLP 555 West Fifth Street, 48th Floor Los Angeles, CA 90013-1065 Telephone: (213) 629-7400 E-mail: johnson.harry@arentfox.com rigali.paul@arentfox.com LERNER SAMPSON: Faces Class Action Over Frivolous Foreclosures -------------------------------------------------------------- Tom Beres, writing for WKYC-TV, reports Ohio's former embattled attorney general Marc Dann is taking on his first high-profile lawsuit since a sexual harassment scandal forced him to resign from the job in 2008. Mr. Dann and co-counsel James Douglass on Tuesday filed a class- action lawsuit against a law firm he says files frivolous foreclosures. The lawsuit filed in Cuyahoga County Common Pleas Court claims the debt collection firm -- Lerner, Sampson and Rothfuss -- doesn't have the right to file foreclosures and has created incorrect documentation. One of the plaintiffs is Phillip Turner, of Shaker Heights. He lost his job and he and his wife waged an expensive legal battle to keep their house from foreclosure. "Financially, it pretty much ruined us. You feel victimized. You feek cheated," he said, after learning that the law firm bringing the foreclosure may have cut corners in the complicated foreclosure process to do so. Mr. Dann said, "They are making millions of dollars. They are filing claims where they don't represent companies or investors who hold the mortgage, where they manufacture documents in their office that are inaccurate. . . . It is a business arrangement by nature causing intentional harm to these people." He said the firm has filed an average of 4,500 foreclosures a year in Cuyahoga County alone and also files them statewide. He recommends that people who have been involved with the firm in foreclosure actions have a lawyer or Legal Aid review their case. Mr. Turner also claims he is doing this both to get compensation for his expenses and to prevent others from suffering the same experience. Rick DeBlasis, a partner in the firm, said, "We have read the suit. It is completely groundless and mis-states the facts for the purpose of sensationalism. The actions of the employees of this firm are well within the bounds of the law, ethical, and properly authorized." Messrs. Dann and Douglass hope to make this a statewide class- action. Mr. Dann is rebuilding his personal and professional life after being forced to resign as state attorney general. He claims this is the kind of case he enjoys working on. He says he is glad to be out of politics. LEUCADIA NATIONAL: Judge Junks Bid to Dismiss Racketeering Suit --------------------------------------------------------------- Daniel Fisher, writing for Forbes.com's Full Disclosure, reports a federal judge in New York has rejected attempts by Leucadia National and the debt-collection law firm Mel Harris & Associates to dismiss a class-action lawsuit accusing them of a racketeering scheme to obtain judgments in New York courts against unwitting consumers around the country. In the ruling issued Dec. 29, U.S. District Judge Denny Chin said the plaintiffs could proceed with claims they were the victims of a "sewer service" scheme in which process servers fraudulently told the court they'd presented debt-collection papers to their targets as required under the law. The lawsuit on behalf of up to 100,000 borrowers claims lawyers at Mel Harris then used those statements to obtain default judgments against the consumers and threaten to garnish their wages or freeze money in their bank accounts. The customer for these services was Leucadia, a financial-services firm that bought hundreds of thousands of defaulted debt claims for pennies on the dollar and hired Mel Harris to recover what it could. The suit has echoes of the "robosigner" controversy over home mortgages, but with important differences. Mortgages are loans secured by a physical property, so there's rarely any dispute over what the homeowner owes and what the lender can seize if he doesn't pay. Leucadia was trying to collect on unsecured debt, where there is no collateral and little recourse for the lender. To get judgments against the borrowers, the judge said, a single Mel Harris employee named Todd Fabacher signed 40,000 affidavits attesting to the accuracy of debt claims. "Assuming 260 business days a year, Fabacher had to have personally (and purportedly knowledgeably) issued an average of twenty affidavits of merit per hour, i.e., one every three minutes, over a continuous eight-hour day. Mel Harris has drawn attacks from consumer advocates over its debt-collection practices, which include filing more than 100,000 lawsuits in state courts around the country. The Federal Trade Commission has expressed concern about debt collectors who obtain default judgments against consumers who were never told of the lawsuit against them and never appeared in court. The term "sewer service" refers to the practice of throwing service papers in the sewer but telling the court the target received them in person. The judge dismissed RICO claims against individual employees of the debt collection firms but allowed them to proceed against the companies. He also rejected an attempt by Mel Harris to claim it isn't a debt collector under federal law, as well as its argument statements it made in court were protected under the so-called "litigation exception" preventing suits over statements in court filings. The class action is Monique Sykes vs. Mel Harris, 09-cv8-486 (S.D.N.Y.). LOWER MERION: November Trial Set for 2007 Discrimination Suit ------------------------------------------------------------- Richard Ilgenfritz, writing for Main Line Times, reports a discrimination lawsuit filed July 30, 2007, is back on the dockets after a judge set a new trial schedule after the recent breakdown of mediation talks between the two parties. The case, Blunt et al. vs. Lower Merion School District, is returning to the trial pool in November. Eight black families filed the suit in federal court in Philadelphia claiming the district failed to provide an adequate education for their children. Lawyers from the Public Interest Law Center of Philadelphia and DLA Piper are handling the case. The plaintiffs have argued through previous court documents and statements that the district has systematically denied African- American students a proper education by putting them in classes where the students were not significantly challenged and as a result they were unprepared for the job market or for college once they graduated from the Lower Merion School District. Concerned Black Parents of Lower Merion and the NAACP Main Line Branch were also involved in the initial suit filing. "The district is essentially wrongly using its special-education programs to resegregate their schools," Sonja Kerr, director of the Law Center's Disabilities Rights Project, said in a statement. "Teachers and other staff often have unfairly low expectations for minority students, and they also often misperceive cultural differences as disabilities. What we hear from families is that this has been going on for generations. Those attitudes and misunderstandings lead directly to the racial disparity you see in Lower Merion schools. LMSD has definitely been aware of this problem since 1997 when it first created committees to address the problem, but the system has not improved." According to the schedule order put out by Judge Harvey Bartle III, discovery will last until April 29. The plaintiffs have until May 31 to file and serve any reports of expert witnesses. The district has until June 30 to file a response to the expert witnesses. Any motions for summary judgment or any other dispositive motion -- a motion to end the case -- must be filed by July 15. A pretrial settlement conference will be held in October. In 2009 Judge Bartle denied the plaintiffs class-action status in the case. "Each of the plaintiffs is disheartened that mediation failed and the case will linger into a fourth year before going to trial to amend these injustices," said Loraine Carter of Concerned Black Parents. "With each passing year, black students miss post- secondary and career opportunities. Clearly the federal court must compel the LMSD to expedite school reform and ensure that its entire staff is effectively trained in cultural proficiency -- something that will require more than a two- to five-hour professional-development workshop. Looking forward, we remain hopeful that sustained change is imminent with the court's help." District's Response to Trial Scheduling Issuing a statement Monday afternoon, school officials said they do not believe the plaintiffs will be able show that the district discriminated against the students. "While the District shares the Plaintiffs' goal of ensuring that every student is achieving and that every student receives the appropriate supports, continued litigation of the Blunt case is not the vehicle to achieve this outcome," school officials wrote in a statement Monday afternoon. "When this case was originally filed, PILCOP was seeking systematic relief for perceived inequities at LMSD. Now that the Court has refused to certify this case as a class action, the ability to secure any type of systematic relief has been extremely limited. Moreover, because the Court has gutted most of the original claims from the lawsuit, PILCOP will have to prove intentional racial discrimination to prevail. There is no evidence of intentional racial discrimination and the general statistical data being assembled by PILCOP does not prove intentional racial discrimination." LMSD requested mediation last year so that resources could be focused on improved outcomes for students rather than the demands of protracted legal proceedings. The mediation process followed a ruling favorable to the District in 2009 that dismissed the Pennsylvania Department of Education as a defendant, removed various organizations from the Plaintiffs' case and refused to certify the case as a class action. Despite extensive, aggressive, ongoing efforts on the part of the District to address achievement gaps, eight months of mediation and continued setbacks to their case, the Plaintiffs have chosen to prolong the matter -- and burden taxpayers with the associated costs -- in the courtroom. What is perhaps most frustrating to school community members is PILCOP's continued practice of ignoring, dismissing and condemning at every turn the District's commitment to improving student achievement. By any measure, the District has taken a leadership role in the effort to close the achievement gap and will continue to do so in the coming months and years. LMSD is one of only a handful of districts in Pennsylvania to include the "achievement gap" as a primary focus of its strategic plan. A full-text copy of the District's response, including examples of the District's overall commitment to supporting the achievement of African American students, is available at http://is.gd/k8Voffrom mainlinemedianews.com. MATCH.COM LLC: Sued Over Fraudulent Profiles on Dating Site ----------------------------------------------------------- Courthouse News Service reports that a federal class action claims Match.com keeps thousands of fraudulent or expired profiles on its dating site, to mislead customers about their chances of finding a mate. A copy of the Complaint in Robinson, et al. v. Match.com, LLC, et al., Case No.10-cv-02651 (N.D. Tex.), is available at: http://www.courthousenews.com/2011/01/03/Dating.pdf The Plaintiffs are represented by: Roger F. Claxton, Esq. LAW OFFICE OF ROGER F. CLAXTON 10000 N. Central Expressway, Suite 725 Dallas, TX 75231-2351 Telephone: (214) 969-9029 E-mail: roger@claxtonlaw.com - and - Jeffrey M. Norton, Esq. Randolph M. McLaughlin, Esq. HARWOOD FEFFER LLP 488 Madison Avenue New York, NY 10022 Telephone: (212) 935-7400 E-mail: jnorton@hfesq.com rmclaughlin@hfesq.com - and - David B. Lever, Esq. Howard B. Stolzenberg, Esq. Evan Spencer, Esq. LEVER & STOLZENBERG, LLP 303 Old Tarrytown Road White Plains, NY 10603 Telephone: (914) 299-9191 E-mail: dlever@lsnjurylaw.com hstolzenberg@lsinjurylaw.com evanspenceresq@aol.com MECOX LANE: Pomerantz Law Firm Files Securities Class Action ------------------------------------------------------------ Pomerantz Haudek Grossman & Gross LLP has filed a class action lawsuit against Mecox Lane Limited and certain of its directors and officers. This class action is on behalf of investors who acquired Mecox American Depositary Shares traceable to the Company's October 26, 2010 initial public offering. If you are a shareholder who purchased Mecox securities, you have until February 1, 2011 to ask the Court to appoint you as Lead Plaintiff for the class. A copy of the complaint can be obtained at http://www.pomerantzlaw.com/ To discuss this action, contact: Rachelle R. Boyle POMERANTZ HAUDEK GROSSMAN & GROSS LLP Telephone: 888-476-6529 (ext. 237) E-mail: rrboyle@pomlaw.com Those who inquire by e-mail are encouraged to include their mailing address and telephone number. The Claims The Company operates China's leading online platform for apparel and accessories as measured by revenues in 2009, offering a wide selection of fashion products through its e-commerce website and physical store network. In connection with the Company's IPO, Defendants failed to disclose at the time of the IPO that: (1) it was already foreseeable that Mecox would not be able to achieve results for the third quarter of 2010 that were in line with either historical growth trends or defendants' guidance; (2) the Company had already experienced disappointing results for the third quarter of 2010, including a significant decline in gross margins that were adversely impacted by increased costs and expenses; (3) defendants had not conducted an adequate due diligence investigation into Mecox; (4) the Company lacked adequate internal and financial controls; and (5) as a result of the above, the Company's financial statements were materially false and misleading at all relevant times. On November 29, 2010, Mecox disclosed disappointing financial results for the third quarter of 2010, including a decline in gross margins of almost 400 basis points year-over-year, a 20.4% increase in Selling, General and Administrative expenses, and a 19.8% increase in Operating expenses. These increases were driven, in part, by an 11.6% increase in marketing expenses and a 40.2% increase in competition and benefits expenses. As a result of the disclosures, Mecox ADS declined $6.73 or more than 57% over two trading days. This lawsuit has been filed in the Southern District of New York, (Civil Action No.: 11-cv-034). Claims asserted arise under Sections 11, 12(a)(2) and 15 of the Securities Act of 1933. The Pomerantz Firm -- http://www.pomerantzlaw.com/-- concentrates its practice in the areas of corporate, securities, and antitrust class litigation. The firm has offices in New York, Chicago and Washington, D.C. NEW BALANCE: Faces Class Action Over Toning Shoes ------------------------------------------------- Jenn Abelson, writing for The Boston Globe, reports Boston sneaker maker New Balance is facing charges in a new class-action lawsuit that it falsely represented the physical benefit of its popular toning shoes that promise consumers a tighter butt and legs. The lawsuit, filed on Monday in U.S. District Court in Boston, is seeking damages in excess of $5 million on behalf of a California woman, Bistra Pashamova, and other people who have allegedly been harmed by New Balance. "[Pashamova] was exposed to and saw New Balance's advertising claims, purchased New Balance toning shoes in reliance on these claims, and suffered injury in fact and lost money as a result," the lawsuit said. Ms. Pashamova and her attorney did not return messages seeking comment. New Balance also could not be reached on Tuesday. New Balance, which last year launched a multi-million dollar toning shoe campaign, is one of several major sneaker companies that are facing class action lawsuits from consumers in recent months. Toning shoes are designed with an unstable sole so leg muscles have to work harder to maintain balance during everyday activities. They are the fastest growing segment in the footwear industry and sales were expected to soar last year to roughly $1.5 billion. But a growing number of consumer complaints and a study last summer by the nonprofit American Council on Exercise found that toning shoes failed to live up to claims made by manufacturers. Some reports of injuries have also raised concerns that the shoes, which costs roughly $100 a pair, could be doing more harm than good. New Balance has promoted its toning shoes with claims that they increase muscle activation by at least 27 percent and increase calorie burn by up to 10 percent with each step using either a rounded of flexible spring sole. Ms. Pashamova, in the lawsuit, is demanding that New Balance "halt the dissemination of this false and misleading advertising message, correct the false and misleading perception New Balance has created in the minds of consumers, and to obtain redress for those who have purchased any New Balance toning shoes." New Balance spokeswoman Amy Dow, in a previous interview with the Globe, defended the company's sneakers. "Having tested our products with hundreds of consumers in the lab and field combined, we are confident that increased muscle activation occurs when wearing our toning footwear," Ms. Dow said. NORTHWEST PIPE: Fraud Claims Added in Shareholders' Class Action ---------------------------------------------------------------- Aaron Corvin, writing for The Columbian, reports investors in Northwest Pipe Co. have updated their class action lawsuit against the Vancouver-based steel pipe manufacturer, adding allegations of wrongdoing and fraud by former and current company executives. The new claims build on a suit first filed in December 2009, when shareholders accused Northwest Pipe of making "false and misleading" statements that inflated the company's stock. At the time, the pipe maker had said that it would have to restate past financial reports. The company finally filed those belated documents in November 2010, and used them to more fully explain why it had overstated its profits by tens of millions of dollars. The company pointed to a lack of internal financial controls, a failure of communication and other procedural hiccups. But the updated shareholders' class action lawsuit paints a darker picture of why the company was plunged into an internal investigation of its accounting methods that saw it stop regularly talking to investors and ultimately led it to restate several years' worth of financial statements. The updated lawsuit, re-filed on Dec. 20 in U.S. District Court in Tacoma, levels new allegations, including that former and current company executives deliberately misled shareholders about when revenue was recognized, manipulated the assignment of costs to make unprofitable contracts look profitable and pressured plant managers to order steel before it was needed in order to inflate quarterly revenue. The company's restatement of its financial information "was not due to simple mathematical errors or honest misapplication or oversight of complex accounting standards," wrote San Francisco attorneys Eli Greenstein and Christopher Wood, who are representing shareholders. Messrs. Greenstein and Wood may be reached at: Eli Greenstein, Esq. Christopher M. Wood, Esq. ROBBINS GELLER RUDMAN & DOWD LLP Post Montgomery Center One Montgomery Street, Suite 1800 San Francisco, CA 94104 Telephone: (415) 288-4545 E-mail: elig@rgrdlaw.com cwood@rgrdlaw.com Reached by phone Monday, George Mernick, the Washington, D.C., attorney who is leading the defense of Northwest Pipe, said he will file a motion to dismiss by the Feb. 3 deadline. He declined to comment further on the allegations against the company. Mr. Mernick may be reached at: George H. Mernick, III, Esq. HOGAN LOVELLS US LLP Columbia Square 555 Thirteenth Street, NW Washington, DC 20004 Telephone: 202-637-5726 E-mail: george.mernick@hoganlovells.com Those allegations are based, in part, on first-hand accounts of confidential witnesses who are former employees of Northwest Pipe, according to the lawsuit. The suit names three defendants: former chief executive and president Brian Dunham, chief financial officer and senior vice president of finance Stephanie Welty and the company itself. It demands compensatory damages, in an amount to be proven at trial, and other costs, including attorneys' fees. The updated lawsuit -- led by Plumbers and Pipefitters Local Union No. 630 Pension-Annuity Trust Fund -- is the latest challenge to Northwest Pipe, which manufactures large-diameter, high-pressure steel pipelines, primarily for drinking water systems. The company has 1,100 full-time workers and owns several manufacturing plants, including in Oregon, Colorado, California, West Virginia, Texas and Utah. Although the company's major manufacturing operations are located elsewhere, its headquarters in Vancouver -- which employs about 50 people and houses the accounting and executive offices -- looms large in the company's accounting woes, according to the lawsuit. Attorneys allege that Northwest Pipe's "premature ordering of steel to inflate revenues" and the "resulting accumulation of unneeded steel" was in large part due to the company's decision to "centralize the procurement of steel in the company's headquarters -- giving ultimate authority to Dunham." Before steel orders were centralized in Vancouver, the company's plants ordered their own steel and, at the company's Adelanto facility in California, for example, "the steel was used quickly," resulting in less inventory at any one time. However, when the Vancouver headquarters took over the purchase of steel, the Adelanto plant's inventory of unused steel "skyrocketed . . .," according to the lawsuit. While Northwest Pipe was allowed to recognize revenue when materials such as raw steel entered the manufacturing process, attorneys allege the company implemented the "fraudulent practice" of recognizing revenue when such materials were purchased. This practice was "well known throughout the company" and the company's employees "raised their concerns with the company's senior management, only to be rebuffed." As a result of this "improper revenue recognition," the lawsuit contends, reported net sales were "overstated by tens of millions of dollars." Attorneys also allege Dunham and Welty were motivated to engage in such practices because a major portion of their annual compensation was "directly tied" to the company's financial performance, including specifically the company's net income. Had the company issued "honest" financial results, the lawsuit alleges, "defendants' bonus compensation would have been significantly reduced, if not eliminated." As a result of Northwest Pipe's actions, the company "caused tens of millions of dollars of losses" to shareholders who had purchased stock at prices inflated by the accounting misdeeds, attorneys allege. Problems first emerged at Northwest Pipe in November 2009, when the company announced it had delayed its third-quarter earnings report until it could resolve an internal investigation of accounting matters. More challenges In addition to the class-action lawsuit, the company faces other challenges, which it reported in 2010: * On March 16, Northwest Pipe said in a regulatory filing that it was the subject of an investigation by the U.S. Securities and Exchange Commission and that it would "cooperate fully." * On May 17, the company announced it was unable to timely file its third and fourth quarterly earnings reports, its annual report for 2009 and its quarterly earnings report for the period ending March 31. This news put it at increased risk of being removed from the Nasdaq stock exchange. * On July 30, the company disclosed through the SEC that it had overstated its profits by $37 million to $47 million over the course of a number of years. * On Oct. 8, the company said Dunham had resigned as president, more than six months after he stepped down as chief executive. Richard Roman, CEO since April, became president, too. On Nov. 4, Northwest Pipe finally brought itself up to speed with financial reports, releasing its 2009 annual report, along with other restated financial reports going back to 2007 and more recent results. In its 2009 annual report, the company listed its challenges but also said it was taking steps to improve financial controls and that it was confident in its ability to do business. On Nov. 23, the company held its first earnings conference call in more than a year. The company reported a return to third-quarter profitability, with a gain of $693,000, or 7 cents per share, for the period ended Sept. 30. That compares with a loss of $5.5 million, or 59 cents per share, for the same period a year ago. "We're glad to be back talking to people again," Mr. Roman said during the earnings call. VODAFONE GROUP: Taskforce to Fix Network After Legal Threat ----------------------------------------------------------- Ben Grubb, writing for The Sydney Morning Herald, reports Vodafone has set up "a number of taskforce teams" to try to fix network problems following a class action legal threat in which about 9000 customers have expressed an interest in joining. Sydney law firm PiperAlderman last month sought disgruntled Vodafone customers to press a class action over dropped calls, bad reception and poor data performance. On Wednesday, it posted an update on its site saying that approximately 9000 Vodafone customers had registered their interest. "In the next five to ten business days, we will be sending group members a request for further information relating to their specific circumstances," it said. "Upon receipt of this information, we will process it and take the matter forward." Vodafone has faced customer backlash over thousands experiencing poor service over the past few months. The company initially blamed software bugs and argued that there were no serious problems with its network. However, just before Christmas, its CEO, Nigel Dews, issued an apology. In it, Mr. Dews reminded customers of plans to "significantly" upgrade the Vodafone network. In a blog post on Tuesday, the company's director of customer service and experience, Cormac Hodgkinson, said Vodafone had set up "a number of taskforce teams" that were "working to continue to resolve the current network issues which have been affecting some customers". Mr. Hodgkinson also said Vodafone was "monitoring and testing the network across the country to evaluate its performance". "While signs are encouraging, there are some customers who may not be experiencing these benefits as yet, and we will continue our program of work to ensure that customers see improvements over time." Between January and March, Mr. Hodgkinson said, the company would be upgrading approximately 141 sites which transmit signals to mobile devices. "These improvements focus on areas where there is either high traffic where capacity is a priority (which will help with data performance) or in areas where coverage is a priority (which will help with general coverage)," Mr. Hodgkinson said. SALSA CYCLES: Recalls 6,500 Salsa Handlebar Stems -------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with Salsa Cycles, a subsidiary of Quality Bicycle Products, of Bloomington, Minn., announced a voluntary recall of about 6,500 Salsa Handlebar Stems. Consumers should stop using recalled products immediately unless otherwise instructed. The handlebar stems can crack or break, posing a fall hazard to the rider. Salsa Cycles has received one report of a handlebar stem breaking that resulted in minor injuries. This recall involves all CroMoto S.U.L. 25.4 and 26.0 threadless handlebar stems and all CroMoto S.U.L. 26.0 quill handlebar stems sold as individual aftermarket units after April 1, 2010. The handlebar stems are black and have the word "Salsa" painted on the extension. The recalled handlebar stems have a hash mark on the inside of the stem bar clamp area. Pictures of the recalled products are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml11/11083.html The recalled products were manufactured in Taiwan and sold through bicycle retailers and websites from April 2010 through October 2010 for about $65. Consumers should stop riding bicycles containing these handlebar stems immediately and contact an authorized Salsa Bicycles dealer for a free inspection and a handlebar stem replacement or a full refund. For additional information, contact Quality Bicycle Products toll-free at (877) 774-6208 between 8:00 a.m. and 6:00 p.m., Central Time, Monday through Friday or visit their Web site at http://www.salsacromotostem.com/ UNITEDHEALTH GROUP: SPDR(R) Funds Receive Settlement Payments ------------------------------------------------------------- The SPDR(R)S&P 500 ETF Trust and the Health Care Select Sector SPDR Fund on Tuesday disclosed receiving payment as an authorized claimant from a class action settlement related to UnitedHealth Group Inc. The total amount payable to each Fund is listed below. When the Funds calculate their net asset value ("NAV") per share on Wednesday, January 5, 2011, it is estimated that each Fund's NAV will be impacted by the receipt of the corresponding payment in the amount stated below based on the shares outstanding as of January 3, 2011. Shares Settlement Outstanding as of Per Share Fund Payment January 3, 2011 Amount ---- ---------- ----------------- --------- SPDR(R)S&P 500 ETF Trust (ticker: SPY) $2,754,178 716,682,116 $0.0038 Health Care Select Sector SPDR Fund (ticker: XLV) $437,724 87,465,324 $0.0050 State Street manages more than $235 billion in SPDR ETF assets worldwide (as of December 31, 2010) and is one of the largest ETF providers in the US and globally. State Street Global Advisors is the asset management business of State Street, a provider of financial services to institutional investors. * Attorney Generals Expect Foreclosure Settlements with Banks ------------------------------------------------------------- Margaret Cronin Fisk and Prashant Gopal, writing for Bloomberg News, report that the five largest loan servicers, including Bank of America Corp. and JPMorgan Chase & Co., may be the first to settle with the 50 state attorneys general probing foreclosure practices, Iowa Attorney General Tom Miller said. No settlements have been reached yet, Mr. Miller said Jan. 3 in a phone interview. The other three are Citigroup Inc., Wells Fargo & Co. and Ally Financial Inc., said Mr. Miller, the leader of the 50-state investigation. The five have 59% of the U.S. market, Mr. Miller said. "What we're looking at is five separate agreements with the five largest servicers," Mr. Miller said. "We're still a ways away" from reaching agreements, he said. "We're working very hard to figure out what should be in the settlement." All 50 U.S. states are investigating whether banks and loan servicers used false documents and signatures to justify hundreds of thousands of foreclosures. The probe, announced Oct. 13, came after JPMorgan and Ally Financial's GMAC mortgage unit said they would stop repossessions in 23 states where courts supervise home seizures, and Bank of America, the largest U.S. lender, froze foreclosures nationwide. Tom Kelly, a spokesman for JPMorgan in New York, declined to comment. Shannon Bell, a spokeswoman for New York-based Citigroup, declined to comment. Gina Proia of Detroit-based Ally declined to comment. Shirley Norton, a spokeswoman for Charlotte, North Carolina-based Bank of America, declined to comment. Teri Schrettenbrunner, a spokeswoman for San Francisco-based Wells Fargo, declined to comment, saying it was premature since no agreement has been reached. Probe Widens The probe has since widened to include other mortgage practices, with attorneys general suggesting a potential resolution should include improving the loan modification process, barring foreclosures when people are modifying loans and creating a general fund to compensate homeowners who may have been victims of wrongful foreclosures. Mr. Miller said the attorney-general group has had at least one face-to-face meeting with representatives from all five of the largest banks, along with "follow-up phone calls." The group will reach individual settlements rather than a global agreement with the servicers, he said. "It won't be the same document for everybody," he said. "There are differences in the companies and in performances." 'Not Criminal' The group isn't pursuing a criminal investigation, Mr. Miller said. "Our focus is to reform the servicing process and that's inherently civil, not criminal," he said. In an interview last week, Mr. Miller said the group might consider matters including whether servicers are charging borrowers appropriate fees. "We hear stories far too often of it taking months before servicers get back to people, or they lose documents and that they don't modify a loan when it makes sense," Miller said last week. The 50-state group "offers one of the most promising avenues to increasing loan modification and servicer accountability that we have seen so far," said Paul Leonard, California director for the nonprofit Center for Responsible Lending in Durham, North Carolina. He said the group would act more independently than Congress or federal regulators because of the influence of industry lobbyists in Washington. "The attorneys general come at this with a fresh eye," Leonard said in an interview yesterday. "They can assess and make changes that they feel necessary." * Securities Class Action Filings in Ninth Circuit Declines ----------------------------------------------------------- Timothy T. Scott, Esq., at King & Spalding LLP, writing for The Metropolitan Corporate Counsel, reports that in the last five years, the trends in the filing of securities class actions have resulted in a decline in filings in the Ninth Circuit, which formerly was the epicenter of securities class action litigation, and an increase in filings in the Second Circuit. More recently, as that trend toward filing in the Southern District of New York reverses itself and more actions are filed in the Ninth Circuit again, the jurisprudence of the Ninth Circuit becomes an increasingly important consideration in drafting corporate disclosures for public companies. A series of recent Ninth Circuit decisions have reversed course from prior Ninth Circuit pronouncements regarding the safe harbor provisions of the Private Securities Litigation Reform Act and loss causation in ways that impact issuer drafting strategies. In In re Cutera Securities Litigation, 610 F.3d 1103 (9th Cir. 2010), the Ninth Circuit held that the safe harbor provisions of the Private Securities Litigation Reform Act protect even statements made with actual knowledge of their falsity. This decision was a dramatic departure from dicta in No. 84 Employer- Teamster Joint Council Pension Trust Fund v. American West Holding Corp., 320 F.3d 920, 937 n. 15 (9th Cir. 2003), which stated that a "strong inference of actual knowledge" of falsity could exempt forward-looking statements from the safe harbor of the Reform Act. In Cutera, the court unequivocally characterized this statement as dicta and held that the defendant's state of mind is not relevant to the determination of whether the defendant's statements are protected by the safe harbor afforded by meaningful cautionary statements. The court may, however, have signaled in a footnote its approval of a different approach to statements made with actual knowledge of falsity, i.e., acceptance of the statutory safe harbor protection, but with an intense focus on whether the company's risk factors constitute "meaningful cautionary language" in the context of a knowingly false statement. See Cutera at 1113 n. 5. The benefits afforded by the safe harbor provisions as interpreted by Cutera are substantial and should be a focal point of any corporate disclosure strategy. As an initial matter, extreme care should be taken to satisfy the first requirement of the safe harbor, the identification of forward-looking statements as such. More complex and difficult, the potential scrutiny regarding the sufficiency of the "meaningful cautionary language" accompanying such forward-looking statements suggests that practitioners should take heed of the Second Circuit opinion in Slayton v. American Express, 604 F.3d 758 (2d Cir 2010). That court found that "boilerplate" risk factors that were not specific, that did not change over time, and that were not tailored to the forward looking statements which they accompanied were not "meaningful cautionary statements" and thus did not protect the company's forward-looking statements. Practitioners should therefore take particular care to revise their client's risk factor warnings with every filing, constantly updating them with a quantitative as well as qualitative date relevant to the particular quarter and the particular forward-looking statements being made at the time. At the same time, it is not critical that every risk factor be repeated in every filing. Ninth Circuit law is clear that the safe harbor does not require that the cause of a market decline be previously identified as a risk factor in the companies' filings. Rather than including every risk factor, it is more important that the risks that are described are described adequately and that they relate to the forward-looking statement that they accompany. A similar change of course has taken place in the Ninth Circuit regarding loss causation. In Metzler Investment GMBH v. Corinthian Colleges, Inc., 540 F.3d 1049 (9th Cir. 2008), the Ninth Circuit rejected the "materialization of the risk" theory of loss causation. That theory, accepted by the Second Circuit, holds that if the alleged fraud resulted in a disappointing revenue or earnings miss, the stock drop resulting from the revenues or earnings miss constitutes a "materialization of the risk" sufficient to satisfy loss causation requirements. In Metzler, the Ninth Circuit found that because a release announcing an earnings miss did not reveal or otherwise attribute the miss to alleged enrollment fraud, it did not satisfy loss causation principles. In In re Gilead Securities Litigation, 536 F.3d 1049 (9th Cir. 2008), decided almost simultaneously as Metzler, the court seemed to decide just the opposite. It found that a stock decline following a disappointing earnings announcement served to establish loss causation with respect to an allegation of off- label promotion that was revealed by an FDA warning letter six weeks prior. While the court suggested that the six-week delay in the market reaction was a question of fact, the real basis of its holding was the "materialization of the risk" theory of loss causation; i.e. , that the off-label marketing generated a demand that dissipated upon issuance of the FDA's warning letter, thereby resulting in the disappointing earnings announcement. The tension between Metzler and Gilead was recently resolved by the Ninth Circuit in In re Oracle Securities Litigation, 2010 WL 4608794 (9th Cir. November 16, 2010), which reaffirmed Corinthian and expressly rejected the materialization of the risk theory of loss causation. Metzler, the court reasoned, requires that "the market learn[] of a react[] to the practices the plaintiff contends are fraudulent." It expressly rejected plaintiffs' assertion that loss causation can be proven by the market's "react[ion] to the purported 'impact' of the alleged fraud -- the earnings miss -- rather than to the fraudulent acts themselves." The Ninth Circuit's rejection of the "materialization of the risk" theory of loss causation is significant to the preparation of corporate disclosures both prior to and after any revenue or earnings disappointment. First, at its heart, loss causation as articulated by the Ninth Circuit is comprised primarily of a comparison of earlier disclosures with the disclosures that precipitate a market disappointment. This approach suggests the importance of the drafter's intimate familiarity of his or her client's prior disclosures. While this would seem self-evident, it is actually a difficult goal to accomplish, particularly for the in-house counsel who is privy to the day-to-day operations of the client. With such daily exposure, it becomes difficult to distinguish what has been disclosed and discussed publicly from what has been kept internal to the client. Second, the Ninth Circuit's view of loss causation places a premium on the adequacy and accuracy of the factual investigation leading to the disclosure of the disappointment. Simply announcing a revenue or earnings miss without attributing such a miss to any causes is not acceptable to the market, yet that attribution will likely define whether or not the plaintiffs in the upcoming securities litigation will be able to plead and prove loss causation. It is absolutely critical that the investigation leading to the causal attribution be thorough and accurate and that the drafter of the client's disclosure not simply accept the easiest or most obvious explanation. This is particularly true where the miss is attributable to intervening events. The resulting disclosure should be fulsome; it should disclose both the positive and negative events leading to the miss, and it should not simply be retrospective but should include the impact of the miss on future quarters (with appropriate safe harbor cautionary language) as well as how the company intends to avoid a similar miss in those future quarters (with the same cautionary language). King & Spalding is a full-service, international law firm with offices in the United States, Europe, the Middle East and Asia. With more than 800 lawyers and offices in Abu Dhabi, Atlanta, Austin, Charlotte, Dubai, Frankfurt, Geneva, Houston, London, New York, Paris, Riyadh (affiliated office), San Francisco, Silicon Valley, Singapore and Washington, D.C., the firm continues to provide the legal counsel to clients from the United States and abroad. King & Spalding represents half of the Fortune 100 and, according to a Corporate Counsel survey in August 2009, ranks fifth in its total number of representations of those companies. The firm also represents hundreds of clients with new ventures and mid-sized companies in emerging industries. Contact: Timothy T. Scott, Esq. KING & SPALDING 333 Twin Dolphin Drive, Suite 400 Redwood Shores, CA 94065 Telephone: (650) 590-0700 E-mail: tscott@kslaw.com Asbestos Litigation ASBESTOS UPDATE: Parker Resident Sentenced to 40-Day Jail Term -------------------------------------------------------------- Colorado Attorney General John Suthers said an Elbert County District Court judge has sentenced 46-year-old Michael Merit of Parker, Colorado, to 40 days in jail for his role in contributing to the release of asbestos into the air by misleading state officials and forging lab results, according to a Colorado AG press release dated Dec. 20, 2010. Mr. Merit's sentence follows his September 2010 guilty plea to causing or contributing to a hazardous substance incident, a class-four felony. According to the indictment, handed down in April 2010, Mr. Merit falsely claimed to be a certified asbestos inspector between Nov. 1, 2007 and Jan. 30, 2008, to obtain work in connection with the demolition of a mobile home park in Elizabeth, Colo. Once hired by the demolition company, he performed the wrong tests to determine if asbestos was present in the mobile homes. Mr. Merit then delivered the forged test results to the demolition company, which used them to apply for a demolition permit from the Colorado Department of Public Health and Environment. In addition to the 40 days imprisonment, Mr. Merit also will be required to pay US$5,000 into the Colorado Department of Public Health and Environment's Environmental Crimes Investigation fund, which is used to test materials during the investigation of environmental crimes. The Office of the Attorney General investigated Mr. Merit and secured its indictment and Mr. Merit's sentence with the assistance of the Colorado Environmental Crime Task Force, the Air Quality Unit of the Colorado Department of Public Health and Environment, and the Environmental Protection Agency's Criminal Investigation Division. ASBESTOS UPDATE: Shreve, Webster Lawsuits Filed in St. Clair Cty. ----------------------------------------------------------------- On Nov. 22, 2010, Claudia Gail Shreve filed a complaint against 68 defendant companies on behalf of her deceased husband, Kenneth L. Shreve, while Harold Webster filed a complaint against 65 defendant companies on behalf of his recently deceased brother, Gerald Webster, The Madison/St. Clair Record reports. Both lawsuits were filed in St. Clair County. Randy L. Gori, Esq. -- Randy@Gorijulianlaw.com -- and Barry Julian, Esq. -- Barry@gorijulianlaw.com -- at Gori, Julian and Associates in Edwardsville, Ill., represent Mrs. Shreve and Mr. Webster. In her complaint, Mrs. Shreve alleges the defendant companies caused Mr. Shreve to develop lung cancer after his exposure to asbestos-containing products throughout his career. According to the complaint, Mr. Shreve worked as a member of the Plumbers Local 653 and worked as a pipefitter at Shell Oil, as a pipefitter at Hartford Refinery from 1988 until 1994 and as a pipefitter at Exxon-Shell from 2000 until 2002. In his complaint, Harold Webster alleges the defendant companies caused his brother to develop lung cancer after his work through the Ironworkers Local 167 from 1969 until 2002. In her 10-count complaint, Mrs. Shreve seeks economic damages of more than US$200,000, a judgment of more than US$150,000, compensatory damages of more than US$100,000 and unspecified punitive and exemplary damages. In his 10-count complaint, Harold Webster seeks economic damages of more than US$200,000, a judgment of more than US$150,000, unspecified punitive and exemplary damages and compensatory damages of more than US$100,000. ASBESTOS UPDATE: Union Carbide, Others Seek Reforms in Madison -------------------------------------------------------------- Several defendants in asbestos cases filed in Madison County, Ill., including Union Carbide Corporation, Riley Stoker, CertainTeed Corporation, Ford Motor Co., Maremont Corporation, General Electric and ArvinMeritor Inc. urged Circuit Judge Barbara Crowder to curtail the county's role as a litigation magnet, The Madison/St. Clair Record reports. On Dec. 20, 2010, they proposed radical revision of a management order that has governed the county's asbestos docket since 2004. Robert Shultz of Edwardsville, Ill., filed the proposal for the companies. He wrote that plaintiffs filed 455 asbestos suits in Madison County in 2007, 639 in 2008, 814 in 2009, and 738 in 2010. The motion states that asbestos claims accounted for 57% of suits seeking more than US$50,000 in 2009, and 59% in 2010. Mr. Shultz supplied figures showing three Madison County mesothelioma suits for every mesthelioma diagnosis in Illinois. He wrote that out of state plaintiffs can guarantee themselves a trial slot within seven to 10 months of filing. From Nov. 1, 2010 to Dec. 1, 2010, defendants took depositions in 86 cases, and that from them, seven of the plaintiffs lived or worked in Madison County. Depositions took place in California, Texas, Ohio, Nebraska, Wyoming, Michigan, South Carolina, Colorado, Nevada, Arizona, New York, Idaho and Oregon, Shultz wrote. Mr. Shultz also pleaded for access to records of plaintiffs in bankruptcy trusts. He wrote that disclosure would increase transparency and prevent the possibility or perception of improper or double recoveries. He wrote that in other jurisdictions, plaintiffs filed inconsistent exposure allegations in the trust and tort systems to inflate their potential recovery. Mr. Shultz wrote that the circuit court of Kanawha County, W.Va., adopted an order requiring statements of existing claims against bankruptcy trusts. He wrote that a plaintiff there must provide proof of claim along with work histories, medical records, depositions, testimony and other supporting materials. ASBESTOS UPDATE: Cooperative Group Fined for Safety Violations -------------------------------------------------------------- The Manchester Minshull Street Crown Court penalized Co-operative Group Ltd. for exposing its employees and shoppers to asbestos, the Manchester Evening News reports. Co-operative Group bosses took no immediate action despite being told there was brown asbestos in the ceiling when they took over the shop in Market Square, Royton, Manchester, England. The Court was told a subcontractor sent in to fit a fire alarm smashed a hole in one of the asbestos panels with a hammer. Two female shop workers cleaned up the mess he had made and left the debris in an open bag at the rear of the store for two weeks. Asbestos debris was found on top of a food cabinet and inside a freezer three months later. Prosecuting for Oldham council, Lisa Judge, said, "Staff and members of the public were potentially exposed to asbestos." Manchester-based Co-operative Group Ltd. admitted one offense under the Health and Safety At Work Act 1974. SF Fire Protection Services Ltd., the West Yorkshire-based sub-contractor, admitted two offenses under the same act. The Court heard asbestos was found in a survey when the shop was owned by United Co-operative stores in 2002. It was said Co- operative Group Ltd was made aware of the survey when it took over the shop in 2007, but no action was taken. The Company warned SF Fire Protection Services asbestos was present but failed to tell it the exact location when the alarm was fitted in November 2007. Judge Peter Lakin fined Co-operative GBP30,000 and ordered it to pay more than GBP7,360 costs. He fined SF Fire Protection Services GBP6,000 for each offense -- a total of GBP12,000. Judge Lakin also ordered the firm to pay more than GBP7,360 costs. ASBESTOS UPDATE: U.K. Govt. to Give GBP5,000 Payout to Victims -------------------------------------------------------------- Campaigners welcomed a change in a United Kingdom Government ruling that will provide GBP5,000 in compensation payments to families of asbestos victims, The Northern Echo reports. Next of kin will now receive GBP5,000 as long as an application for compensation was submitted the death of the pleural plaques sufferer. Ministers had refused to make posthumous payments and campaigners in the region, where the legacy of heavy industry like ship building meant there were many sufferers, accused them of penny pinching. However, the Government has now had a change of heart. The TUC Asbestos Support and Campaign Group, based in Wallsend, England, was one of the groups that lobbied ministers to do right by asbestos victims and their families. Northern TUC Regional Secretary Kevin Rowan said, "It has taken some considerable time and much struggle for pleural plaques victims to persuade Government to introduce a compensation scheme for illnesses that have clearly been entirely as a result of their exposure to asbestos, entirely down to their employers' negligence." However, the Government is still refusing to give compensation if a sufferer dies without making an application to the scheme. The scheme will make payments if someone diagnosed as having pleural plaques submitted an application for compensation before Oct. 17, 2007. In 2007, the House of Lords decided that automatic payouts should end. ASBESTOS UPDATE: Court OKs $3.6MM for Cleanup of Encycle/ASARCO --------------------------------------------------------------- The U.S. Bankruptcy Court approved US$3.6 million for the demolition of 50 buildings, silos and storage tanks and for the removal of asbestos at the Encycle/ASARCO plant in Corpus Christi, Tex., Mesothelioma.com reports. The Encycle/ASARCO plant is a former zinc smelting and commercial waste management site. The Austin-based Energy Renewal Partners may begin preparing the site for demolition later in December 2010. Before any demolition can take place, asbestos must be removed to prevent creating an environmental hazard. Should demolition take place with asbestos still present, asbestos fibers could be released into the air and inhaled by workers and the surrounding community. Water sprayers and tarps will be used to control and isolate demolition dust, and wrecking balls and explosives will not be used. Once demolition has been completed, contaminated soil also will be removed from the site. According to the agreement between the bankruptcy trustee and Energy Renewal Partners, the project deadline is May 29, 2013 and seven general use buildings will not be demolished, but rather offered for sale once demolition of the other structures is complete. About Asarco LLC Based in Tucson, Arizona, ASARCO LLC -- http://www.asarco.com/-- is an integrated copper mining, smelting and refining company. Grupo Mexico S.A. de C.V. is ASARCO's ultimate parent. ASARCO LLC filed for Chapter 11 protection on August 9, 2005 (Bankr. S.D. Tex. Case No. 05-21207). Attorneys at Baker Botts L.L.P., and Jordan, Hyden, Womble & Culbreth, P.C., represented the Debtor in its restructuring efforts. On December 9, 2009, Grupo Mexico, S.A.B., consummated the Chapter 11 plan that it sponsored for Asarco LLC. The Plan, which was confirmed both by the bankruptcy and district courts, reintegrated Asarco LLC back to parent Grupo Mexico concluding the four-year Chapter 11 proceeding. Bankruptcy Creditors' Service, Inc., publishes ASARCO Bankruptcy News. The newsletter tracks the Chapter 11 proceeding undertaken by ASARCO LLC and its various affiliates. (http://bankrupt.com/newsstand/or 215/945-7000) ASBESTOS UPDATE: Travelers to Pay $445MM for Asbestos Settlements ----------------------------------------------------------------- U.S. Bankruptcy Court Judge Burton Lifland, on Dec. 16, 2010, ordered The Travelers Companies, Inc. to pay at least US$445 million into claims funds set up by a 2004 asbestos settlement, ClaimsJournal.com reports. The funds were set up to resolve a number claims brought in state courts over asbestos liability for the Johns Manville Corp., which made asbestos-containing product that Travelers began insuring in the 1940s. In this latest decision, Judge Lifland said the amount owed by Travelers may rise, too. There is still the pending questions of whether interest must be added -- a legal question which Judge Lifland vowed to take up in the next few months if Travelers and the plaintiffs cannot come to an agreement through a mediator. The settlement was reached in 2004 between Travelers and groups of plaintiffs who had sued the insurer in state courts for asbestos- related claims. Bankruptcy had been a major sticking point in the asbestos litigation. Johns Manville declared bankruptcy in 1982, and in 1986, a federal bankruptcy court barred lawsuits against the insurer for asbestos liability. Despite the ruling, at least 26 different state lawsuits were filed. The 2004 settlement called for Travelers to pay at least US$445 million into three different claims funds that would handle asbestos-related payments. The settlement also released the insurer from future lawsuits related to those claims. However, Travelers never paid, and more legal complications followed when Chubb Corporation sued Travelers over asbestos settlements. More legal battles led to a June 2009 ruling by the Supreme Court that essentially affirmed the US$445 million settlement. Judge Lifland ruled that Travelers has been legally obligated to pay the US$445 million since the Supreme Court's decision that total may be subject to interest. A copy of Judge Lifland's Memorandum Decision dated December 16, 2010, is available at http://is.gd/j2Jacfrom Leagle.com. ASBESTOS UPDATE: Miss. DEQ Probes Possible Breaches at Lafayette ---------------------------------------------------------------- The Mississippi Department of Environmental Quality is checking what authorities believe is an illegal dump in Lafayette County, Miss., after asbestos was found there, The Associated Press reports. The asbestos was found in the rubble of several condemned duplexes that were dumped and buried on property. The Oxford Eagle reports that MDEQ sent a letter to the property owner, ordering him to stop dumping at the site and to come to Jackson for a hearing on Dec. 29, 2010. Lafayette County Solid Waste manager Bobby Jones said the property was being used as a dump for five old condemned duplexes that were torn down and dumped on the property. ASBESTOS UPDATE: 7 Former Hardie Directors Cleared in ASIC Claim ---------------------------------------------------------------- The Australian reports seven former James Hardie Industries SE directors including Meredith Hellicar, Michael Brown, Michael Gillfillan, Martin Koffel, Dan O'Brien, Greg Terry and Peter Willcox have won an appeal against the Australian Securities and Investments Commission, with a court on Dec. 17, 2010 clearing them of having breached the Corporations Act. ASIC had taken the directors and other Company executives to court, saying they had approved a draft announcement to the ASX in February 2001 that related to the establishment of a foundation to cover asbestos claims. While the foundation was set to be "fully funded," it later turned out to be underfunded to the tune of about US$1 billion. Chief Justice James Spigelman said the proceedings on appeal were "lengthy and complex." However, he said ASIC "did not prove that the resolution was passed" and said ASIC had failed to call a key witness "whose role was such that there was a significant probability that he had relevant knowledge." Former James Hardie chief executive Peter MacDonald was the only defendant to accept an earlier judge's ruling. He has been banned from managing a company for 15 years and was ordered to pay AU$350,000. Hardie was not successful in its appeal and was ordered on Dec. 17, 2010 to pay 90% of ASIC's legal costs. Former general counsel Peter Shafron was partially successful in his appeal. The court's decision will be a blow to ASIC, which has lost several major court cases in recent years. ASBESTOS UPDATE: Quincy Off the Hook for Abatement at Mall Site --------------------------------------------------------------- The state of Massachusetts said the city of Quincy will not have to pay for increased costs tied to asbestos discoveries at the Quincy Fair Mall demolition site, one of which a city official said should have been detected by a pre-work inspection, The Patriot Ledger reports. Project costs potentially doubled after contractor J.R. Vinagro began tearing down the building in the summer of 2010. Crews found asbestos-containing tiles hidden under a false floor in a shuttered movie theater in the building. Officials said it is not uncommon for asbestos to go undetected in screenings when hidden under false floors. However, an Oct. 29, 2010 discovery of asbestos in floor tiles of the former motor vehicle registry building was considered less forgivable. The state Department of Transportation, which is building a concourse road through Quincy Center using federal stimulus money, has yet to pay J.R. Vinagro for the Oct. 29, 2010 work. All contaminated material has been trucked off the site to a hazardous-material disposal site in Ohio. Before the state took the job over as a stimulus project in 2009, the city was funding and building the roadway. It hired the pre-demolition asbestos inspector for the project, CBI Consulting Inc. of Boston, which the state retained. CBI hired a subcontractor, Tetra Tech Rizzo of Framingham, to do asbestos inspections. A CBI representative, Wayne Lawson, referred all questions on the project to the state Department of Transportation. Richard Nangle, a spokesman for the department, said an extra work order was produced for the October 2010 asbestos find, but that it would not be clear what it will cost until the end of December 2010. Mr. Nangle did not confirm that the state had refused to pay for any work but did say the city would not be held responsible for cost overruns despite hiring the pre-demolition inspector. About 3,000 tons of asbestos material was removed from the site. The removal was monitored by the state Department of Environmental Protection, and regular air quality monitoring was performed. The concourse project is funded through a US$8.1 million federal stimulus grant. Of that, US$500,000 was for demolition work. The first asbestos discovery is thought to have added US$700,000 to US$1 million to the demolition cost. A final cost would not be known until the tons of material disposed of and cleaned are tallied. Officials have said the stimulus award can absorb all cost overruns tied to asbestos discovery, which is common in older buildings such as the Quincy Fair Mall, which dates to 1940. ASBESTOS UPDATE: Vukoja Family Seeks Help in Compensation Claim --------------------------------------------------------------- The family of Anton "Tony" Vukoja, of St. Albans, Hertfordshire, England, is appealing for anyone who may have worked with him to come forward, the Brimbank Weekly reports. Mr. Vukoja worked at the former Firestone tire factory in Sunshine between 1970 and 1980. His family, including granddaughter Melita Maraldo, believe he was exposed to asbestos as part of his work as a laborer mixing tire rubber. She said it was his dying wish that others be alerted to the possible danger. Mrs. Maraldo said her grandfather's health deteriorated quickly ahead of his death in February 2010 at the age of 70. Mr. Vukoja was diagnosed with lung cancer at the start of 2010, with doctors believing his work contributed to his death. Asbestos lawyer Margaret Kent, of Slater & Gordon, said the firm would like to hear from those who worked at the factory or knew about its work, as part of an investigation into an asbestos compensation claim. Mrs. Maraldo believes some of her grandfather's old workmates might also be suffering ill health. She wanted to alert them to the possible threat, as well as seek justice for her grandmother. ASBESTOS UPDATE: Schuderer's Family Awarded $1MM Payout in N.Y. --------------------------------------------------------------- The family of Richard Schuderer, who died following exposure to asbestos, was awarded US$1 million by a New York jury, LawyersandSettlements.com reports. The Schuderer family filed a wrongful death lawsuit, after Mr. Schruderer died as a result of mesothelioma in June 2009. Other asbestos lawsuits have been filed against various companies, alleging injury to people who were exposed to asbestos throughout their employment. Mr. Schruderer worked on tugboats for about 35 years and was exposed to asbestos when he repacked valves and fabricated gaskets. A jury found that John Crane, Inc., the company that manufactured the gaskets, was 60% responsible for Mr. Schruderer's death. Other defendants had already settled with the Schruderer family. ASBESTOS UPDATE: Aussie Ex-Teacher Aide Files Compensation Claim ---------------------------------------------------------------- In a recent lawsuit filed in Queensland, Australia, a former teacher aide seeks compensation after being exposed to asbestos during the 1980s and developing mesothelioma, Asbestos.com reports. During the time, the unidentified teacher aide was working at Shailer Park State Pre-School in 1983, the school was undergoing renovations to meet enrollment demands. Throughout the construction, classes continued even though the presence of asbestos had been confirmed. The former teacher is now in her 60s. Others who may have been present at the time of the construction in 1983 have been encouraged to register in an asbestos database. ASBESTOS UPDATE: Halifax Inquest Rules on Former Cleaner's Death ---------------------------------------------------------------- An inquest at a court in Halifax, West Yorkshire, England, ruled that the death of Lesley Shirley, a retired cleaner, was related to secondary exposure to asbestos, the Hebden Bridge Times reports. Mrs. Shirley's parents worked at the Cape Asbestos factory, Old Town. She died of mesothelioma. The inquest also learned the disease also caused the death of her brother. The siblings' parents had worked at Acre Mill, as spinners during the 1950s and 1960s. The children were exposed to asbestos at Christmas parties held in the factory's canteen. There was no evidence Mrs. Shirley had encountered the mineral during her own employment. Mrs. Shirley was diagnosed with malignant mesothelioma in 2007. She died aged 57 at her home in Master Lane, Halifax, on April 7, 2010. Her older brother, who had moved to the USA, died aged 47 from the same disease. Coroner Roger Whittaker recorded a verdict of death by industrial disease. ASBESTOS UPDATE: Abatement at Pearson Middle School Costs $390T --------------------------------------------------------------- The estimated cost to abate asbestos at the Pearson Middle School in Winsted, Conn., would be US$390,000, the Republic American reports. Mystic Air Quality Consultants Inc. in Groton wrote to town officials on Dec. 10 that it recommends all floor tile and mastics in the entire school, totaling 68,000 square feet, be removed and replaced. The floor tiles have exceeded their life expectancy and have failed in a number of locations. The consultant added that two classrooms have been sealed off until the asbestos can be abated and throw rugs have been used to cover damaged tiles in a number of areas, which is not an acceptable method of abatement. Replacement costs an extra US$100,000. The Board of Selectmen voted unanimously on Dec. 20, 2010 to give the School Building Committee authorization to spend US$175,000 to abate as much of the asbestos as possible. ASBESTOS UPDATE: Navistar Int'l. Still Subject to Exposure Cases ---------------------------------------------------------------- Navistar International Corporation is subject to an increase in the number of asbestos-related claims in recent years, according to the Company's annual report filed on Dec. 22, 2010 with the Securities and Exchange Commission. In general, these claims relate to illnesses alleged to have resulted from asbestos exposure from component parts found in older vehicles, although some cases relate to the alleged presence of asbestos in the Company's facilities. In these claims, the Company is not the sole defendant, and the claims name as defendants numerous manufacturers and suppliers of a wide variety of products allegedly containing asbestos. Headquartered in Warrenville, Ill., Navistar International Corporation is an international manufacturer of International brand commercial and military trucks, IC Bus brand buses, MaxxForce brand diesel engines, Workhorse Custom Chassis brand chassis for motor homes and step vans, and Monaco RV recreational vehicles, as well as a provider of service parts for all makes of trucks and trailers. ASBESTOS UPDATE: Esterline Subject to Potential Asbestos Actions ---------------------------------------------------------------- Esterline Technologies Corporation is subject to potential liabilities relating to certain products it manufactured containing asbestos, according to the Company's annual report filed on Dec. 21, 2010 with the Securities and Exchange Commission. To date, the Company's insurance has covered claims against it relating to those products. Commencing Nov. 1, 2003, insurance coverage for asbestos claims has been unavailable. However, the Company continues to have some insurance coverage for exposure to asbestos contained in its products prior to that date. Headquartered in Bellevue, Wash., Esterline Technologies Corporation is a specialized manufacturing company principally serving aerospace and defense customers. The Company designs, manufactures and markets highly engineered products and systems for application within the industries it serves. ASBESTOS UPDATE: Joy Global Still Involved in Liability Actions --------------------------------------------------------------- Joy Global Inc. and subsidiaries are involved in various unresolved legal matters that arise in the normal course of operations, the most prevalent of which relate to product liability (including over 1,000 asbestos and silica-related cases), employment, and commercial matters. Headquartered in Milwaukee, Joy Global Inc. manufactures and services high productivity mining equipment for the extraction of coal and other minerals and ores. Its equipment is used in major mining regions throughout the world to mine coal, copper, iron ore, oil sands, and other minerals. ASBESTOS UPDATE: Tipping Widow Gets GBP95,000 in Asbestos Payout ---------------------------------------------------------------- Mary Tipping, a pensioner, received GBP95,000 in damages from British Rail after her husband, Charles Tipping, died as a result of exposure to asbestos at work, This is Wiltshire.co.uk reports. Mrs. Tipping, of Highworth, England, lost Mr. Tipping to mesothelioma in February 2010. Mr. Tipping, who died at the age of 91, had worked for the Great Western Railway in Swindon from 1932 to 1965. The claim was brought by the Tipping family's solicitor, Brigitte Chandler of law firm, Charles Lucas & Marshall and a specialist in asbestos claims. Mr. Tipping was exposed to asbestos in a number of shops in the railways. He was the third generation of his family to work at British Rail and all three family members are mentioned in the railway museum's list of past employees. After completing his apprenticeship, Mr. Tipping went on to work in several railway sheds where steam pipes were lagged with asbestos and where boilers, covered in thick white asbestos, came in for repair. He was regularly in contact with boilers, pipes and cylinder which were covered in asbestos. ASBESTOS UPDATE: Crestmoor Community in Calif. Cleared of Hazard ---------------------------------------------------------------- Traces of asbestos have been found in the air of a San Bruno, Calif. site, but according to the county environmental health department, the amounts were not large enough to be considered dangerous to residents' health, Mesothelioma.com reports. Asbestos and hazardous metals have been found in the debris left by a fire that ripped through the San Bruno, Calif., Crestmoor neighborhood on Sept. 9, 2010. Of course, there are scientists and health specialists that believe no amount of asbestos exposure is safe. Crews finished demolishing the burnt houses two months ago, and the county's environmental health department wants to dispel any fears that the Crestmoor neighborhood is still contaminated with toxic substances. Ignoring asbestos contamination would create tremendously hazardous situation, as prolonged asbestos exposure is the primary cause of mesothelioma. Dean Peterson, the director of the county's environmental health department said, "If we had not gone in as quickly as we did to clean that material up, then I would say, absolutely, there would still be an ongoing issue with contamination. But when you clean up the source, you're not adding to that contamination. That's really what we did." ASBESTOS UPDATE: Inquest Links Cheshire Worker's Death to Hazard ---------------------------------------------------------------- An inquest heard that the death of 65-year-old Philip Watkiss, a former heating engineer from Bollington, Cheshire, England, was related to workplace exposure to asbestos, the Manchester Evening News reports. Mr. Watkiss died in July 2010 at East Cheshire Hospice. His widow, the 57-year-old Jacqueline Watkiss, seeks legal advice to see if anyone is to blame for his death. At the inquest, Mrs. Watkiss told coroner Michael Wallbank, "We were always shouting at him for smoking as we had no idea -- you just don't think about asbestos." Mr. Watkiss did an apprenticeship at Ellesmere Engineering as a boiler and central heating engineer, where he was exposed to asbestos on pipework in service ducts. In March 2008, an X-ray showed shadowing round the lungs, indicating emphysema and bronchial carcinoma. In 2009, a CT scan showed he had lung cancer, which was spreading to his liver and bones and he was given chemotherapy and radiotherapy. He was told his cancer was not curable but was treatable and in April he stopped treatment at The Christie. Coroner Mr. Wallbank said, "Mr. Watkiss was exposed to asbestos up until 1969." He recorded that he had died of the industrial disease of lung cancer due to exposure to asbestos, contributed to by cigarette smoking. ASBESTOS UPDATE: Asbestos at Bull Savannah Still to be Removed -------------------------------------------------------------- Two years after official confirmation of its existence of asbestos at an abandoned building in Bull Savannah, St. Elizabeth, Jamaica, South East St Elizabeth, asbestos is yet to be removed, the Jamaica Observer reports. The man at the forefront of the effort to have the potential cancer-causing construction material taken away, councilor for the Junction Division, Cetany Holness (JLP) is very frustrated. The asbestos is said to be present in walls and roof of the old police station in Bull Savannah which was abandoned in 2005 following a strategic switch of police personnel to nearby Junction. Addressing the issue at a recent parish council meeting in Black River, Mr. Holness questioned whether about "about six deaths" from cancer-related illnesses close to the old police station in recent years could be related to the asbestos taint. He told the Observer West that the situation had grown critical since vandals were at work in the building and there was evidence of the structure falling apart. After being alerted to the presence of asbestos by a returning resident, Carroll Elliot, who also claims "asbestos is all over St Elizabeth," Mr. Holness, acting through the parish council called in the Government's environmental watchdog, NEPA (National Environment and Planning Agency) in 2008. The latter confirmed the existence of the hazardous material and wrote letters to relevant agencies and personalities including the National Security Ministry and Member of Parliament, Frank Witter recommending its removal. An estimate by a waste disposal agency placed the cost of safe removal and disposal at JMD2.355 million but two years on, no money has been granted for the project. Mr. Holness is awaiting a positive response from the Prime Minister's Office after the parish council sent a letter in November requesting funds. Another approach to the National Health Fund was met with a recommendation that a request be made to the CHASE Fund instead. ASBESTOS UPDATE: Reservoir Resident Seeking Payout From Goodyear ---------------------------------------------------------------- John Melissinos in Reservoir, Victoria, Australia, a 72-year-old dying from asbestosis, is reaching out to his former Thomastown Goodyear tire factory colleagues to help expose the toll of unsafe work practices, the Preston Leader reports. Mr. Melissinos, through lawyers Slater and Gordon, is pursuing compensation from Goodyear Dunlop Tyres 25 years after he left the business. While working at the Thomastown tire factory from 1975 to 1985, he said he was unknowingly exposed to and inhaled high quantities of asbestos. Mr. Melissinos said he believed the worst exposure occurred while he was removing and applying asbestos lagging to steam pipes and oil tanks and during the tire-manufacturing process. Daughter Poppy Marino said his health had deteriorated significantly since being diagnosed with asbestosis in 2000. Slater and Gordon lawyer Claire Setches said that by 1978, the dangers of asbestos were well known and so far there was no indication Goodyear Dunlop did anything to change its use of asbestos products in its tire-manufacturing process. Ms. Setches said Slater and Gordon lawyers had set up a Thomastown Goodyear Dunlop asbestos register for former employees to contact them. In a prepared statement, Goodyear Dunlop said it had recently received an initial statement of claim for proceedings started by Mr. Melissinos. ASBESTOS UPDATE: EPA Releases Results on Tests at Zonolite Site --------------------------------------------------------------- The U.S. Environmental Protection Agency announced test results for asbestos contamination of public land along the South Fork of Peachtree Creek on Dec. 9, 2010. A removal site evaluation has been conducted at the Site by EPA in response to an agency wide initiative to investigate vermiculite facilities that received vermiculite ore from the W.R. Grace vermiculite mine in Libby, Mont. The Site, also referenced as the "GAO 144 site" was the former location of a vermiculite expansion (or, exfoliation) plant. The expansion plant operated from 1950 until 1970 and between 499 and 1,225 tons of vermiculite concentrate from the W. R. Grace vermiculite mine in Libby were shipped to the GAO 144 site. Historical aerial photographs indicate that demolition of most the facility buildings was conducted in phases beginning sometime between 1960 and 1968 and ending sometime between 1988 and 1993. While some of the Site is paved, much of the remaining portion of the Site is either sparsely vegetated or heavily wooded. During the Spring of 2010 (March 24, 25, and 30; and April 15) EPA and EPA's contractor conducted activity-based air sampling (ABS) and bulk material sampling at the Site. The objective of the field effort was to evaluate potential human exposure risk from disturbance of materials potentially contaminated with asbestos. Of the four ABS events, three rounds did not yield detectable concentrations of asbestos in the air samples collected. The only detection of asbestos in any ABS air sample -- at the detection limit of the analytical technique -- was for an air sample associated with ABS Round 1, collected in the area that appeared somewhat elevated above the surrounding terrain (the "plateau" area). The preliminary analytical results for all bulk samples indicated either non-detect or trace (present but below levels that can be quantified) quantities of asbestos, except for two samples that reported low percentage levels of Libby amphibole asbestos (0.5% and 0.75%). These samples were also collected in the plateau area. A Site visit was conducted on Oct. 20, 2010 with iEPA's national Asbestos Technical Review Workgroup. Included in the input provided by the visiting group was a recommendation to conduct visual confirmation of the presence/absence of vermiculite below land surface in the soil plateau and surrounding areas. On Nov. 12, 2010 and again in December 2010, EPA and EPA's contractor conducted further investigation of the plateau area, including the taking of additional bulk samples. Further action will be based on the results of this sampling event. ASBESTOS UPDATE: Asbestos Mine at Netaji Ka Bara, India Reopened ---------------------------------------------------------------- Even after an India-wide ban on the mining of asbestos, one such mine has been allegedly revived and is flourishing at the Netaji Ka Bara in Udaipur district, The Times of India reports. After complaints from the Rajasthan State Mines Labour Union (RSMLU), the Mines Labour Protection Campaign (MLPC) has called up various officials of the mines department but are still awaiting action. According to Rooplal Vadera, a villager who used to work in the mines before it was officially closed, "I know the mine. It is an asbestos mine. I used to work in it, along with other villagers from my area, like Lalu Ram, Ram Lal as this was our only means of livelihood. It had been closed. But since the past three months work has resumed." Mining of asbestos has been banned in the country due to its harmful effects on the human body. Shocked by the developments the MLPC got into the act. Rana Sengupta, managing trustee of MLPC, said, "We are concerned because of the harmful effects that the mines may cause to people working in it. On one hand the state government is not taking any initiative in healing workers afflicted with asbestosis while on the other no measure is being taken by it to close illegal mines." The MLPC intervened into the matter as its representatives had been to Jhadole in Udaipur for showing solidarity with mines workers who were on a dharna and were demanding that their medical test reports done by the National Institute of Occupational Health (NIOH) be made public. ASBESTOS UPDATE: Deleon Awaits Sentencing for Asbestos Breaches --------------------------------------------------------------- The sentencing hearing for 41-year-old Albania Deleon, a recently extradited North Andover, Mass., woman facing up to 230 years in prison, has been postponed to January 2011, the Eagle-Tribune reports. Ms. Deleon spent 19 months as a fugitive after her 2008 federal conviction on 28 different counts involving her Methuen-based asbestos removal training school. Since her October 2010 apprehension in the Dominican Republic, she has faced a sentencing hearing in U.S. District Court. That hearing, scheduled for Dec. 9, 2010, was rescheduled for Jan. 20, 2011 at 2 p.m. The hearing was originally scheduled for Nov. 22, 2010. She is being held while awaiting sentencing. The reasons for moving the hearings are scheduling conflicts between attorneys, according to Christina DiIorio-Sterling, spokeswoman for the U.S. attorney's office. Dominican Republic officials picked up Deleon on Oct. 31, 2010, and eventually extradited her. ASBESTOS UPDATE: Asbestos Claims in New South Wales Still Rising ---------------------------------------------------------------- The recent figures from the New South Wales Dust Diseases Board revealed that payouts for mesothelioma are continuing to increase, ABC News reports. The Board grants no-fault compensation to workers who contracted a dust disease, so that if they die their dependents can be supported. It paid out AU$75 million in the last financial year. The Dust Diseases Board reports that the most common and deadly asbestos disease, mesothelioma, has risen for the third year in a row. There were 64 cases in 1992, but in 2010 there were 145. The Board was set up 80 years ago to help workers with silicosis but asbestos diseases now make up 90% of its work. The Dust Diseases Tribunal, which hears cases involving negligence, is receiving 300 to 400 asbestos claims annually. ASBESTOS UPDATE: Hazard at Mt. Umunhum's Vicinity to be Removed --------------------------------------------------------------- The San Jose Mercury News reports that the Midpeninsula Regional Open Space District still needs to secure US$13.1 million to clear toxic debris, like asbestos, left over from an air station and to repave the five-mile road in the vicinity of Mount Umunhum, Calif., The Associated Press reports. After being off limits for three decades, Mount Umunhum could be open to the public over the next few years for access to panoramic views of Monterey Bay and San Francisco. The district, which owns the land, was scheduled to vote on the plan for reopening the former home of Almaden Air Force Station. The 3,500-foot-high mountain is about 26 miles south of San Jose. Under the plan, Mount Umunhum would be open for permit-only access in two years, and full public access would be possible by 2016. A final vote on the plan is expected in 2011. ASBESTOS UPDATE: Riverhead, N.Y Still to Hire Removal Contractor ---------------------------------------------------------------- The town of Riverhead, N.Y., is attempting to rid its town of a long-time eyesore, but has had trouble lining up a contractor to remove asbestos from the property at an affordable price, the Mesothelioma Resource Center reports. According to Riverheadlocal.com, the town of Riverhead will solicit bids for the third time to award a contract for asbestos abatement at the former Weeping Willow motel. The town hopes to demolish the structure and develop the land as part of a riverfront greenbelt. The West Main Street property was purchased by the town in 2009 for US$1.2 million, the community website reported. The New York state Community Preservation Fund provided US$500,000 toward the purchase price because the site is one of 150 parcels in the Wading River corridor that the state has identified as environmentally significant. The preservation fund is funded by the collection of two-percent taxes on land transfers in local communities. ASBESTOS UPDATE: No Unsafe Asbestos Found at Ambler's Tap Water --------------------------------------------------------------- The Pennsylvania Department of Environmental Protection, in conjunction with Ambler Borough, completed a study to test for potential asbestos fibers in the local water supply, finding no unsafe presence of asbestos in the tested tap water, the Montgomery Media reports. The results of the study were presented at the Community Advisory Group's Dec. 1, 2010 meeting by its Health, Environment, Risk & Safety workgroup. The study was prompted by citizen concerns that the water supplied to homes by the Ambler Borough Water Department may contain asbestos fibers that could potentially enter the water from the area's asbestos sites or from asbestos piping. The department provides water to customers in a 6.5-square-mile area encompassing Ambler Borough and sections of Lower Gwynedd, Upper Dublin, Whitemarsh and Whitpain townships. In the study, Water Department Supervisor Philip Benigno collected tap water samples at four homes connected to the Ambler water system Nov. 8, 2010. The four homes were located in the Ambler section of Lower Gwynedd, the Ambler section of Whitpain, the Fort Washington section of Upper Dublin and the Fort Washington section of Whitemarsh, according to the report. According to the report, in three of the samples, no fibers longer than 0.5 microns were detected, and the concentration of fibers was less than the detection limit of 0.09 million fibers per liter. According to state maximum contaminant levels, water is allowed to have up to seven million fibers of asbestos per liter. In the fourth sample, one fiber longer than 0.5 microns suspected to be chrysotile asbestos was detected, according to the report. However, upon reanalysis, the presence of the fiber could not be confirmed. With these results showing asbestos concentrations far below the maximum contaminant levels, the PADEP determined the samples meet drinking water standards. About one-third of the Ambler Water Department's pipes are made of asbestos, but none of those pipes service downtown Ambler, according to Ambler Councilman Peter Amento. He pointed out the use of asbestos pipes is not limited to Ambler but is used for water distribution all over the country. ASBESTOS UPDATE: Dist. Ct. Plan Hearing in Leslie Controls Case --------------------------------------------------------------- CIRCOR International, Inc., on Dec. 23, 2010, announced an update on the timing of the Chapter 11 bankruptcy proceedings of its Leslie Controls, Inc. subsidiary. In its Oct. 28, 2010 press release, the Company announced bankruptcy court confirmation of the Leslie Controls reorganization plan and indicated that it was targeting Leslie's emergence from bankruptcy for the fourth quarter of 2010, pending required affirmation of the reorganization plan by the U.S. District Court. While the Company had hoped the District Court review would occur during the fourth quarter, the District Court has scheduled the hearing for January 2011. At the hearing, the District Court will review the Section 524(g) asbestos trust aspects of the reorganization plan and consider appeals lodged by certain of Leslie's insurers. Upon entry of a District Court order of approval and absent a stay pending any further appeals, Leslie and the Company would fund the Section 524(g) asbestos trust once various closing conditions are satisfied and the reorganization plan becomes effective. Leslie's emergence from bankruptcy and distributions from the trust to claimants would not occur, however, until any subsequent appeals from the District Court's order are favorably resolved. The Company and Leslie believe that the pending and any subsequent appeals are, and would be, without merit. CIRCOR International, Inc. designs, manufactures and markets valves and other highly engineered products and subsystems that control the flow of fluids safely and efficiently in the aerospace, energy and industrial markets. The Company is headquartered in Burlington, Mass. ASBESTOS UPDATE: Court Affirms Board's Decision in Lykins Action ---------------------------------------------------------------- The U.S. Court of Appeals for Veterans Claims upheld a Sept. 12, 2008 ruling of the Board of Veterans' Appeals, which denied Wesley Lykins' claim for entitlement to service connection for a respiratory condition/lung cancer, to include as secondary to asbestos exposure. The case is styled Wesley Lykins, Appellant v. Eric K. Shinseki, Secretary of Veterans Affairs, Appellee. Judge William A. Moorman entered judgment in Case No. 08-3798 on Oct. 26, 2010. Mr. Lykins served on active duty in the U.S. Navy from March 1952 to July 1955. According to his statements, while on active duty he was exposed to asbestos while serving aboard ship. In April 2004, he filed a claim for entitlement to service connection for "lung & breathing problems/cancer." In October 2004, a VA regional office (RO) denied Mr. Lykins' claim for service connection. In March 2006, Mr. Lykins requested a review of his claim. In support of his claim, he submitted letters from three private physicians. Mr. Lykins also submitted a February 2004 letter from another private physician, Dr. LaRocca. A letter from a third private physician, Dr. Rea, was also dated February 2004. In March 2008, the Board remanded Mr. Lykins' claim with instructions for the RO to obtain an opinion from a pulmonary examiner as to whether Mr. Lykins' condition was as likely as not related to exposure to asbestos while on active duty. In April 2008, a VA physician provided a medical opinion. The examiner noted that Mr. Lykins was diagnosed with "[chronic obstructive pulmonary disease] (Emphysema)" and "Squamous Cell Carcinoma of the Lung with local paratracheal advancement; stage IIIB." The examiner also opined that there was no objective evidence to support an asbestos-related condition. The examiner noted that Mr. Lykins had been diagnosed with "non-small cell carcinoma (adeno, squamous or large cell carcinoma) of the lung, initially felt to probably be adenocarcinoma, but definitively diagnosed as squamous cell carcinoma type." The physician stated that the predominant cause of both small cell and non-small cell lung carcinoma is smoking. In its September 2008 decision, the Board reviewed the evidence and concluded that the VA medical opinion was most probative on the issue of nexus between Mr. Lykins's respiratory condition/lung cancer and his military service. Based upon this conclusion, the Board denied Mr. Lykins' claim. This appeal followed. The Board's Sept. 12, 2008 decision was affirmed. ASBESTOS UPDATE: N.C. Appeals Court OK'd Ruling in Kingston Case ---------------------------------------------------------------- The Court of Appeals of North Carolina affirmed the ruling of the Rockingham County Superior Court, which ruled against Lyon Construction, Inc. and PMA Insurance Group (Respondents) in an asbestos case filed by Carl Benton Kingston. The case is styled Carl B. Kingston, Petitioner v. Lyon Construction, Inc. and PMA Insurance Group, Respondents. Judges Linda Stephens, Robert C. Hunter and Robert N. Hunter, Jr. entered judgment in Case No. COA10-193 on Nov. 2, 2010. Mr. Kingston was exposed to asbestos while employed by Lyon Construction from 1994 until 2000. In 2006, he was found to have pleural mesothelioma. On Oct. 24, 2009, he filed a workers' compensation claim against Lyon Construction and its workers' compensation insurance carrier, PMA Insurance. Respondents filed an Industrial Commission Form 61 denying the claim on Dec. 1, 2006. The matter was heard by Deputy Commissioner George T. Glenn II on Jan. 28, 2008. On June 26, 2008, Deputy Commissioner Glenn entered an Opinion and Award in favor of Mr. Kingston awarding indemnity compensation in the amount of US$730 per week and related medical benefits. The Full Commission heard Respondents' appeal on 10 December 2008. In an Opinion and Award entered Feb. 3, 2009, the Full Commission affirmed Deputy Commissioner Glenn's decision. During the pendency of the proceedings in Mr. Kingston's workers' compensation claim, he pursued tort claims against a number of manufacturers of asbestos products. His claims against several of the manufacturers were settled. On June 5, 2009, he filed a motion in Rockingham County Superior Court for determination of Respondents' lien. Mr. Kingston sought reduction or elimination of Respondents' potential lien due to the severity of his illness and the inability of the third parties, several of whom were in bankruptcy, to adequately compensate him for his injury. When the motion was heard on July 20, 2009, documents reflecting Mr. Kingston's settlements with third parties were admitted into evidence under seal. On July 30, 2009, Respondents filed a motion to introduce newly discovered evidence. Respondents alleged that a newly discovered document concerning Mr. Kingston's action against third parties conflicted with evidence he presented at the hearing. On Sept. 14, 2009, the trial court entered separate written orders (1) denying Respondents' motion to introduce newly discovered evidence and (2) reducing Respondents' lien to zero. Respondents filed notice of appeal from the trial court's orders on 21 October 2009. Accordingly, the Appeals Court concluded that the trial court did not abuse its discretion in reducing Respondents' lien to zero. Wallace and Graham, P.A., by Michael B. Pross, Esq., represented Mr. Kingston. Hedrick, Gardner, Kincheloe & Garofalo, L.L.P., by Rebecca L. Zoller Esq., and M. Duane Jones, Esq., represented PMA Insurance and Lyon Construction. ASBESTOS UPDATE: Court Partially Grants Waters' Dismissal Motion ---------------------------------------------------------------- The U.S. District Court, Eastern District of Michigan, Southern Division, granted in part Waters & Kraus, LLP's motion to dismiss for lack of personal jurisdiction a lawsuit involving asbestos. The case is styled Patricia King, as Personal Representative of the Estate of Pauline Ridenour, Patricia King, Michael Krinkie, and Kevin Ridenour, Plaintiffs v. Wallace John Ridenour, Jr., Gary D. Morgan, Waters & Kraus, LLP and Judy Messing Struble, Defendants. U.S. District Judge Stephen J. Murphy, III entered judgment in Case No. 10-cv-11739 on Oct. 28, 2010. This action involved claims for legal malpractice and breach of contract against Waters & Kraus, LLP, a Dallas-based law firm, with offices in Baltimore, Los Angeles, and San Francisco. Plaintiffs had also asserted various other claims against the other defendants. Pauline Ridenour resided in Michigan. She died intestate on July 14, 1999 from mesothelioma caused by second-hand contact with asbestos. Her son, Wallace Ridenour (a defendant in this case), was appointed personal representative of Pauline's estate by the Michigan probate court. Wallace decided to file a wrongful death action on behalf of the estate. On Aug. 23, 1999, Wallace entered into a retainer agreement with the Law Offices of Roger G. Worthington, P.C. in Dallas for the purposes of filing a lawsuit on behalf of Pauline's estate. On Oct. 19, 1999, Wallace and his siblings (Plaintiffs in this action) signed an addendum to the retainer agreement stating that Worthington was associating with Waters on the wrongful death action, and that the children agreed to the terms of the original retainer agreement with Worthington. The children also agreed that the attorneys would communicate solely with Wallace on all matters regarding the action, that Wallace would have full authority to settle any claims, and that the attorneys would disburse proceeds for any settlement equally to all children. On Jan. 5, 2000, Waters filed a lawsuit in a Texas state court against many asbestos-related defendants on behalf of Wallace. On March 7, 2000, Wallace filed a petition to open an unsupervised independent estate of Pauline Ridenour in the Livingston County, Mich., probate court. On March 8, 2000, the Livingston County probate court issued Letters of Authority to Wallace, granting him full power to collect, manage and dispose of the property of the estate without court supervision. On July 9, 2003, the Livingston County probate court issued Wallace additional Letters of Authority, and the siblings filed additional waiver/consent forms, indicating their consent to the issuance of new Letters of Authority. In June 2000, after the issuance of the first round of Letters of Authority, Wallace, through the Law Offices of John Ashmore, filed an action in the Dallas County probate court for Application for Ancillary Administration and Authorizing Ancillary Letters of Administration of the Ridenour estate. The probate court granted the application, authorizing ancillary letters of administration, and appointed Wallace as ancillary administrator of the estate. The asbestos action apparently settled in phases. The proceeds of the first two settlement phases were divided equally among the children. From 2003 through 2008, Wallace settled many of the asbestos-related claims against the various companies sued in that action. Each time, Wallace, with assistance of counsel other than Waters, filed a motion for approval of settlement in the Dallas county probate court seeking disbursement of the settlement to Wallace as personal representative of the estate. Plaintiffs assert that Waters caused the probate court's order to be styled so as to require disbursement solely to Wallace, despite having agreed with all the heirs that it would disburse the proceeds equally among them. Waters advised Wallace that although the probate court had ordered disbursement solely to Wallace in his capacity as personal representative of the estate, Wallace was obligated to distribute the settlement proceeds among his siblings in accordance with the distribution agreement the children all signed. Wallace apparently never distributed funds from the later settlement phases to his siblings. The siblings who received no proceeds from the later settlement phases sued Waters, Wallace, and Wallace's alleged boyfriend in state court in Livingston County, Mich. Judy Messing Struble (a sibling), was named as a defendant though she was more properly considered a plaintiff, for Plaintiffs did not allege any wrongdoing on her part and instead alleged that she was harmed by the actions of Defendants. It was ordered that Waters' motion to dismiss was granted in part. Plaintiffs' claims against Waters were dismissed for lack of personal jurisdiction. ASBESTOS UPDATE: Split Ruling Issued in Anco Insulations Lawsuit ---------------------------------------------------------------- The U.S. District Court, Middle District of Louisiana, issued split rulings in a case involving asbestos styled Anco Insulation, Inc., a Louisiana Corporation v. Royal Indemnity Company, a Delaware Corporation, et al. U.S. District Judge Brian A. Jackson entered judgment in Civil Action No. 07-657-BAJ-DLD on Nov. 1, 2010. This matter was before the Court on a motion for partial summary judgment filed by the American Guarantee & Liability Insurance Company, Zurich American Insurance Company, and Anco Insulations, Inc., and joined by Arrowood Indemnity Company formerly known as Royal Indemnity Company; and a cross motion for partial summary judgment filed by National Union Fire Insurance Company. Continental Insurance Company, Transportation Insurance Company, Westchester Fire Insurance Company, and National Union (Opposing Insurers), had each opposed Anco's motion. Anco had replied to Opposing Insurers' opposition, as had Royal. American Guarantee, ZAIC, Anco, and Royal had opposed National Union's motion. Anco Insulations is an asbestos insulation company that had been sued by thousands of plaintiffs seeking damages for exposure to asbestos over the past 25 years. Royal; AIG Premier Insurance Company; Centaur Insurance Company; Columbia Casualty Company; Continental; Danielson Insurance Company; First State Insurance Company; Holland-America Insurance Company; Landmark Insurance Company; Lexington Insurance Company; National Union; Transportation; United States Fire Insurance Company; and Westchester are insurance companies that each, at some point, insured Anco as excess or primary insurers. Royal, American Guarantee and ZAIC had defended and indemnified Anco Insulations in all pertinent litigation thus far. However, after American Guarantee and ZAIC disclosed that the primary policies they issued to Anco Insulations were either exhausted or approaching exhaustion, Anco sued its excess carriers for indemnity, and its other primary carriers for a defense and indemnity. Anco also filed bad faith claims against Opposing Insurers, alleging they failed to timely respond to defense tenders. The motion for partial summary judgment filed by Anco, American Guarantee, ZAIC, and Royal was hereby denied, and the motion for partial summary judgment filed by National Union was hereby granted. The claims by Anco, American Guarantee, and ZAIC, for reimbursement of pre-tender defense costs and fees, were hereby dismissed with prejudice. ASBESTOS UPDATE: Mo. Court Affirms Remand Motion in Elsea Action ---------------------------------------------------------------- The U.S. District Court, Western District of Missouri, Western Division, granted plaintiff's motion to remand in a case involving asbestos styled David M. Elsea, individually and as class representative, Plaintiff v. Jackson County, Missouri, et al., Defendants. U.S. District Judge Ortrie D. Smith entered judgment in Case No. 10-0620-CV-W-ODS on Oct. 28, 2010. David M. Elsea filed this suit on May 25, 2010 on behalf of himself and a class of similarly situated individuals. The suit alleged the Jackson County Courthouse was built with materials containing asbestos and people who had been in the courthouse on a regular basis for any period since 1983 may have developed or may develop health problems. In addition to Jackson County, Mo., Mr. Elsea had named U.S. Engineering Company as a defendant because it had allegedly conducted repairs, renovations, and other work that caused the release of asbestos fibers. Defendants removed the case to federal court. The Motion to Remand was granted and the case was remanded to the Circuit Court for Jackson County, Mo. Anthony Louis Dewitt, Esq., Edward D. Robertson, Jr., Esq., Mary D. Winter, Esq., of Bartimus, Frickleton, Robertson & Gorny in Jefferson City, Mo., E. Ann Wright, Esq., Louis Carl Accurso, Esq., of Accurso Law Firm in Kansas City, Mo., represented Mr. Elsea. Anthony J. Romano, Esq., Anthony Lamont Springfield, Esq., Dennis Joseph Dobbels, Esq., of Polsinelli Shughart PC, James D. Griffin, Esq., Maggie L. Nigro, Esq., Stephen J. Torline, Esq., of Husch, Blackwell, Sanders, LLP, in Kansas City, Mo., represented the Defendants. ASBESTOS UPDATE: Telecoms Engineer Awarded GBP115T Compensation --------------------------------------------------------------- Bernard John Mottram, an 82-year-old former telecoms engineer from Bath, Somerset, England, who contracted mesothelioma, has been awarded GBP115,000 in an out-of-court settlement, The Bath Chronicle reports. Mr. Mottram was diagnosed with mesothelioma in May 2010, years after being exposed to asbestos fibers while installing phone lines at a secret war bunker. Workplace illness expert Satpal Singh, from law firm Irwin Mitchell, successfully launched legal action against British Telecom on Mr. Mottram's behalf. As a technician working for British Telecom from 1970 to 1991, Mr. Mottram recalls regularly encountering asbestos and drilling through asbestos sheets to run cables. One contract, undertaken in 1991 at Corsham Underground bunker, built during the late 1950s as an emergency Government war headquarters, sticks in his mind. ASBESTOS UPDATE: U.K. Inquest Rules on Derby Technician's Death --------------------------------------------------------------- An inquest at Derby Coroner's Court heard that the death of Eric Foster, a 66-year-old former Courtaulds (n/k/a Celanese) worker from Derby, England, was related to workplace exposure to asbestos, the Telegraph reports. Mr. Foster had written a statement two months before his death on Oct. 7, 2010 in which he said he was working with asbestos blankets at the Courtaulds factory in Spondon. He died a few years into his retirement from the firm, where he worked for more than 30 years. Mr. Foster's statement was read out at the court, where his death was found to be caused by mesothelioma. Dr. Andrew Hitchcock, consultant pathologist at Royal Derby Hospital, said "95%-plus" of mesothelioma cases were associated with asbestos. Assistant deputy coroner Paul McCandless said that "on the balance of probability," Mr. Foster's death was caused by an industrial disease. The inquest heard Mr. Foster was a technician involved in investigating how new types of fabric reacted to steam. It was the steam presses which Mr. Foster said contained the asbestos. In his statement, Mr. Foster said, "These presses could be old, dirty and often required the asbestos blankets to be replaced. They were like a square table, approximately one yard square, and the asbestos blankets were on the top." He added he wished to pursue a claim for compensation. Earlier, the inquest heard Mr. Foster first started feeling ill in April 2009, when he had a persistent cough. He was diagnosed with mesothelioma three months later in July 2009. ASBESTOS UPDATE: Laurel Residents Claim Asbestos Made Them "Ill" ---------------------------------------------------------------- Many residents of Laurel, Miss., claim they are already suffering from major illnesses because asbestos found at the dilapidated Beards Feed Store, WDAM reports. Some residents are furious that city officials did not do enough to help stop the spread of asbestos debris after the store caught fire. People who live around the old store said firefighters let the building smolder for four days. Residents said they had to breath in thick smoke filled with asbestos debris. The building was scheduled to be demolished in 2011. Meanwhile, these citizens said they are looking into taking legal actions against the city of Laurel. ASBESTOS UPDATE: Hazard Removed From Morony Natatorium Basement --------------------------------------------------------------- Asbestos was removed from the basement of the Morony Natatorium Pool in Great Falls, Mont., and tile work was added to both the men's and women's locker rooms, Great Falls Tribune reports. Patty Rearden, deputy director of Parks and Recreation for the City of Great Falls, said the Natatorium received US$9,150 for the asbestos removal and US$12,365 for the tile from a Community Development Block Grant. In addition to the tile and asbestos removal, several other items of routine maintenance brought the facilities up to snuff. ASBESTOS UPDATE: Hazard to be Cleared From Garden Walk in Chico --------------------------------------------------------------- Tom Hall, the owner of Garden Walk Mall in Chico, Calif., says asbestos abatement and repairs on the center will be done in two parts, ChicoER.com reports. Merchants fled the center after an overhead sprinkler pipe broke days before Christmas, flooding small shops and all the carpeting. The damage was discovered by merchants opening their stores on the morning of Dec. 20, 2010. Some merchants were able to continue in business, but during the course of water cleanup, Mr. Hall found there was asbestos in the floors. He said, "There was enough damage and water into the slab that there were concerns about the tiles on the slab. It's the old-style tiles, put down during the '50s." Merchants nearer the Wall Street side should be back in operation by early February 2011, the ones closer to the Main Street side in early March 2011, Mr. Hall said. ASBESTOS UPDATE: Trustee Wants Dismissal of Quigley's Bankruptcy ---------------------------------------------------------------- Tiffany Kary, writing for Bloomberg News, reports the United States Trustee asserts that Pfizer Inc., the world's largest drug company, should have the bankruptcy of its Quigley unit dismissed. Bloomberg says a hearing to decide the U.S. Trustee's request is set for January 13, according to court papers filed December 23. According to Ms. Kary, lawyers for the U.S. Trustee said while the Quigley bankruptcy has been pending, creditors with alleged asbestos-related health problems have been unable to sue Pfizer, and many have died. "The harm in delaying the inevitable dismissal of this case is to the individuals who have filed asbestos claims against the Debtor and Pfizer," lawyers for acting U.S. Trustee Tracy Hope Davis wrote in court papers, according to Bloomberg. "For some of those individuals, time may be of the essence." As reported by the Troubled Company Reporter on September 9, 2010, Bloomberg News said U.S. Bankruptcy Judge Stuart M. Bernstein in New York on September 8 rejected Quigley's fourth reorganization plan and said parties should discuss dismissal of the case. He said the plan was filed in "bad faith" by Pfizer and cited testimony that asbestos claims directed at Quigley could total $4.45 billion over the next 42 years. "In a nutshell, Pfizer bought enough votes to assure that any plan would be accepted," Judge Bernstein wrote. Bloomberg at that time reported that, in a 90-page ruling that covers Pfizer's failed attempts to deal with its growing asbestos liabilities since June 1985, Judge Bernstein noted that a lawyer who represented both Quigley and Pfizer settled claims against Quigley and got releases for Pfizer at no additional cost. As reported by the TCR on October 15, Dow Jones' Daily Bankruptcy Review said Pfizer has moved to overturn the Bankruptcy Court's ruling that it engaged in bad-faith vote buying in a bid to shake an estimated $900 million worth of asbestos liabilities. Under the proposed Chapter 11 plan, Pfizer is paying about $450 million into a trust to satisfy claims about products for which it allegedly has derivative liability. According to Bloomberg's Tiffany Kary, the "channeling injunction" of the Bankruptcy Code would direct all future claims into the trust, covering death or personal injury claims related to Insulag, Panelag and Damit, products for the steel industry that contained asbestos and were made from the time of World War II to the 1970s. Ms. Kary reports that Pfizer spokesman Christopher Loder has said the company is prepared to contribute additional funds to Quigley's plan to satisfy the court's concerns, and will discuss fair compensation of asbestos claims at the January 13 hearing. Ms. Kary notes Pfizer reported in its third-quarter report in November a $701 million charge for asbestos litigation for Quigley. In a report filed November 12 with the U.S. Securities and Exchange Commission, Pfizer said it was filing an appeal of the Quigley ruling to "preserve its right to address certain legal issues raised in the court's opinion." Ms. Kary also relates an ad-hoc committee representing 43,100 individual asbestos claimants in Quigley's bankruptcy had also asked in October that a judge end the case, and also end the injunction that has shielded Pfizer from lawsuits since 2004. About Quigley Co. Quigley Co. was acquired by Pfizer in 1968 and sold small amounts of products containing asbestos until the early 1970s. In September 2004, Pfizer and Quigley took steps that were intended to resolve all pending and future claims against the Company and Quigley in which the claimants allege personal injury from exposure to Quigley products containing asbestos, silica or mixed dust. Quigley filed for bankruptcy in 2004 and has a Chapter 11 plan and a settlement with Chrysler. Quigley filed for Chapter 11 bankruptcy protection on Sept. 3, 2004 (Bankr. S.D.N.Y. Case No. 04-15739) to implement a proposed global resolution of all pending and future asbestos-related personal injury liabilities. Lawrence V. Gelber, Esq., and Michael L. Cook, Esq., at Schulte Roth & Zabel LLP, represent the Debtor in its restructuring efforts. Elihu Inselbuchm Esq., at Caplin & Drysdale, Chartered, represents the Official Committee of Unsecured Creditors. When the Debtor filed for protection from its creditors, it disclosed $155,187,000 in total assets and $141,933,000 in total debts. ASBESTOS UPDATE: Greenford to Assume Abatement at Three Schools --------------------------------------------------------------- As for the three schools that were sold, Greenford Bobcats Inc. will now privately have to assume the cost of asbestos abatement regarding three schools in Ohio, Mesothelioma.com reports. The South Range Local school board held a special session in December 2010 to request that the Ohio Schools Facilities Commission (OSFC) release funds reserved for demolition of the district's old facilities. The amount in question is US$615,000 that was originally set for the demolition and asbestos abatement of the old middle school in Greenford, Ohio, and the high school and elementary in North Lima, Ohio. However, the buildings in question have since been purchased by Greenford Bobcats Inc. Since the school buildings no longer belong to the school board, the funds are no longer needed for the same purpose. Funding is now needed for the new K-12 campus that will open this coming fall, but if the earmarked funds are released, they can only be used for expenditures associated with construction. The funds will only be released once the OSFC board has considered and approved the request. Even if the school board's request is accepted, the funds likely would not be released the end of the new project. ASBESTOS UPDATE: Cleanup Ongoing at Liverpool Elementary School --------------------------------------------------------------- Asbestos removal efforts are ongoing at the Liverpool Elementary school in Liverpool, N.Y., 9WSYR.com reports. The asbestos was found in floor tiles and pipe insulation during recent renovations. The superintendent says that the holiday break will be enough time for the materials to be removed, but by law, the school needs to pass air quality tests before it can reopen. ASBESTOS UPDATE: Kittle Case v. 97 Firms Filed Dec. 10 in W.Va. --------------------------------------------------------------- Delbert Warren Kittle, of Fairmont, W.Va., on Dec. 10, 2010, filed an asbestos-related lawsuit against 97 defendant corporations in Kanawha Circuit Court, W.Va., The West Virginia Record reports. According to the complaint, on Dec. 11, 2008, Mr. Kittle was diagnosed with lung cancer. Mr. Kittle claims he smoked cigarettes from 1953 until 2007, but then quit. Mr. Kittle seeks a jury trial to resolve all issues involved. Bronwyn I. Rinehart, Esq., represents Mr. Kittle. Case No. 10-C-2216 has been assigned to a visiting judge. ASBESTOS UPDATE: Most 2010 Asbestos Actions Given to Judge Floyd ---------------------------------------------------------------- Judge Donald Floyd, who has presided over the 172nd District Court since 1989, had 15 additional asbestos and benzene toxic tort claims on top of his 2010 docket, The Southeast Texas Record reports. The Beaumont, Tex., courthouse in Jefferson County welcomed around 40 new toxic tort claims in 2010, with Judge Floyd getting the lion's share. Of the 15 new cases assigned to his court, about 10 were brought by the Beaumont-based Provost Umphrey Law Firm, court records show. In fact, PU attorneys, who have filed thousands of asbestos cases in the past two decades, represent clients in 29 of the 40 cases filed in 2010. Runner up is 58th District Court Judge Bob Wortham, who saw 12 new toxic tort claims creep into his court in 2010. Again, PU will represent the plaintiffs in most of those cases, since nine of the 12 were filed by the firm's attorneys, court records show. Third place belongs to Judge Milton Shuffield, 136th District Court, with seven toxic tort claims assigned in 2010. Judge Gary Sanderson, 60th District Court, received the remaining six, court records show. On average, about 3.3 toxic tort cases were filed per month in Jefferson County. In all, toxic tort claims slightly dipped in 2010, as Southeast Texas attorneys filed a total of 46 asbestos and/or benzene suits in 2009. Although hundreds of toxic tort suits settled, no asbestos case went to trial in 2010. Asbestos cases filed in Jefferson County are transferred to a multidistrict litigation panel in Harris County, where Judge Mark Davidson, 11th District Court, makes mass rulings on discovery before sending the cases back to their courts of origin. ASBESTOS UPDATE: Judge to Rule on W.R. Grace Plan This Month ------------------------------------------------------------ W. R. Grace & Co. said December 28 that at a recent status conference on its Joint Plan of Reorganization Judge Judith K. Fitzgerald indicated she expected to issue a ruling on confirmation in January 2011. At a hearing in October 2010, she said she was hoping to issue the ruling prior to year end. Headquartered in Columbia, Maryland, W.R. Grace & Co. (NYSE:GRA) -- http://www.grace.com/-- supplies catalysts and silica products, especially construction chemicals and building materials, and container products globally. The Company and its debtor-affiliates filed for Chapter 11 protection on April 2, 2001 (Bankr. D. Del. Case No. 01-01139). David M. Bernick, P.C., Esq., at Kirkland & Ellis, LLP, and Laura Davis Jones, Esq., at Pachulski Stang Ziehl & Jones, LLP, represent the Debtors in their restructuring effort. The Debtors hired Blackstone Group, L.P., for financial advice. PricewaterhouseCoopers LLP is the Debtors' accountant. Stroock & Stroock & Lavan, LLP, and Duane Morris, LLP, represent the Official Committee of Unsecured Creditors. The Creditors Committee tapped Capstone Corporate Recovery LLC for financial advice. David T. Austern, the legal representative of future asbestos personal injury claimants, is represented by Orrick Herrington & Sutcliffe LLP and Phillips Goldman & Spence, PA. Elihu Inselbuch, Esq., at Caplin & Drysdale, Chartered, and Marla R. Eskin, Esq., at Campbell & Levine, LLC, represent the Official Committee of Asbestos Personal Injury Claimants. The Asbestos Committee of Property Damage Claimants tapped Scott Baena, Esq., and Jay M. Sakalo, Esq., at Bilzin Sumberg Baena Price & Axelrod, LLP, to represent it. Thomas Moers Mayer, Esq., at Kramer Levin Naftalis & Frankel, LLP, represents the Official Committee of Equity Security Holders. W.R. Grace and its debtor affiliates, with the support of the Official Committee of Asbestos Personal Injury Claimants, the Asbestos PI Future Claimants' Representative and the Official Committee of Equity Security Holders, have submitted a proposed Chapter 11 plan of reorganization. The Chapter 11 plan is built around an April 2008 settlement for all present and future asbestos personal injury claims, and a subsequent settlement for asbestos property damage claims. The Plan confirmation hearing wrapped up on January 25, 2010. Bankruptcy Creditors' Service, Inc., publishes W.R. Grace Bankruptcy News. The newsletter tracks the Chapter 11 proceeding undertaken by W.R. Grace, W.R. Grace Co. - Conn. and their affiliates. (http://bankrupt.com/newsstand/or 215/945-7000) ASBESTOS UPDATE: Mancuso Ordered to Pay $17,972 in Restitution -------------------------------------------------------------- U.S. District Court Senior Judge Frederick Scullin Jr. recently ordered Paul Mancuso to pay back US$17,972.68 it cost the federal government to clean up toxic piles of asbestos that were illegally dumped in a rural field in Herkimer County, N.Y., Observer- Dispatch reports. Judge Scullin added that, however, Mr. Mancuso will not have to give any money to two other victims of his conspiracy to cover up illegal asbestos removal operations. Judge Scullin denied the prosecution's request that Mr. Mancuso pay for the financial losses incurred by the following individuals: -- Patrick Grzesiak was forced into bankruptcy when Mr. Mancuso fraudulently listed Mr. Grzesiak as the owner of two asbestos-related companies and brought upon thousands of dollars in fines from the state Department of Labor. -- Sean Hirt had to pay thousands of dollars in medical expenses when Mr. Mancuso paid Joseph Mazza to assault Mr. Hirt in September 2006 because Mr. Hirt had allegedly tipped off investigators about Mr. Mancuso's shoddy asbestos work. As the 46-year-old Mr. Mancuso currently serves 6 1/2 years in federal prison for an illegal asbestos conspiracy that also involved his brother, Steven Mancuso, and father, Lester Mancuso, Judge Scullin ordered that Mr. Mancuso must pay US$17,972.68 to the U.S. Environmental Protection Agency in monthly installments. On Dec. 28, 2010, the prosecutor, Assistant U.S. Attorney Craig Benedict, said it is satisfying to know that Mr. Mancuso will have to pay some financial penalty for what he has done. ASBESTOS UPDATE: Seward Museum Cleanup, Demolition to Cost $39T --------------------------------------------------------------- The cost of demolishing a building on the site of the future Seward Library Museum in Seward, Alaska, is estimated at US$39,000 because hazardous materials, such as lead paint and asbestos, must be removed, the Mesothelioma & Asbestos Awareness Center reports. The Seward City Council is currently discussing the major obstacles facing the construction and maintenance of the Seward Library Museum. The primary topic of discussion is, of course, funding and where it will come from. The project is currently estimated at just over US$10 million. Furnishing, fixtures and computers that cannot be salvaged from the old building will have to be purchased on a budget of US$200,000, while another US$500,000 has been budgeted for the museum's exhibits. The Library Museum Building Project has been awarded US$4.7 million in state funding, the Rasumson Foundation has agreed to a US$500,000 contribution and there are hopes that the National Endowment for the Humanities will contribute another half-million. ASBESTOS UPDATE: Cleanup at Aspen City Market to Start Jan. 2011 ---------------------------------------------------------------- Work is set to begin early in January 2011 at Aspen's City Market, allowing workers to remove asbestos from the ceiling of the grocery store while customers and employees are not present, The Aspen Times reports. According to Jeff Adams, environmental protection specialist for the Colorado Department of Public Health and Environment says the agency has approved a revised permit to handle the asbestos work. The city of Aspen's Engineering Department is expected to make a formal decision soon on whether the work can take place at night -- outside the allowed hours of construction in the city. Trish Aragon, city engineer, previously indicated she is open to allowing the night work, but the formal application was recently submitted. The work will add a new component to an ongoing remodeling project that has already given the shopping experience at City Market a less-than-polished feel. Scaffolding will be erected to hold up decking above the grocery shelves and aisle space in a couple of areas within the store. According to city officials, the space above the scaffolding will be encased in plastic and asbestos removal will occur within that contained area. The work will occur at night, when the store is unoccupied, except for the crew from Denver-based American Abatement, said Jannette Whitcomb, the city's environmental health program coordinator. The firm, certified to do asbestos work, is well qualified to handle the project, she said. The remodeling of City Market is expected to continue until mid- June 2011. When it is complete, the updated store will feature a full bakery and deli, and an expanded section for perishable foods. ASBESTOS UPDATE: Kumar Urged to Stop Asbestos Factory Operations ---------------------------------------------------------------- Environmentalists and asbestos experts over the world are petitioning Nitish Kumar, Chief Minister of Bihar, India, to block the proposed asbestos factory to be set up by the Kolkata-based Balmukund Cement and Roofing Ltd (BCRL) in Bishnupur-Chainpur, The Hindu reports. On Dec. 29, 2010, noted Environmental Consultant and asbestos hazard expert Dr. Barry Castleman addressed letters to Mr. Kumar and Union Minister of State for Environment and Forests Jairam Ramesh drawing their attention to the community resistance in Muzaffarpur over the proposed plant and the repressive measures initiated by the district authorities. As reported on Dec. 28, 2010, villagers have been battling the district administration and the BCRL management since July 2010 over alleged misinformation on the perceived hazardous fallouts of the proposed Chrysotile asbestos plant in Chainpur. Meanwhile, the villagers of Bishnupur-Chainpur have given a 24-page memorandum to the Muzaffarpur district administration listing the causes for their opposition to the proposed plant, highlighting glaring contraventions in the BCRL's EIA report and registering their protest against the June 28, 2010 public hearing, which they allege was a sham. However, when contacted, BCRL director N.K. Kanodia refuted all allegations, stating that there were no violations in the EIA report and that all the Terms of Reference (TORs) as laid down by the Ministry of Environment and Forests (MoEF) were adhered to. Speaking to The Hindu, he said that the 17.8-acre site acquired for the proposed plant was "entirely barren"and "there were no schools and health centers in the vicinity of the upcoming factory." The MoEF had given Environmental Clearance to the BCRL in October 2010. ASBESTOS UPDATE: Hazard Cleared From Rongotai College Gym Ruins --------------------------------------------------------------- Workers in protective gear are removing asbestos from the ruins of the fire-ravaged gym at Rongotai College, in Rongotai, Wellington, New Zealand, The Dominion Post reports. Diggers were brought in to level what was left of the Kilbirnie building, destroyed early on Boxing Day. The cause of the fire was still being investigated. Principal Kevin Carter said tests had confirmed the presence of asbestos in the debris of the gutted gym. He added that despite the gales that lashed Wellington on Dec. 29, 2010, the risk of asbestos contamination in the area was low. ASBESTOS UPDATE: Asbestos "Timebomb" Continues to "Tick" in York ---------------------------------------------------------------- Campaigners allege that the "asbestos timebomb" in York, North Yorkshire, England, is still ticking away as the City approaches 2011, The Press reports. The York Asbestos Support Group said that although asbestos was no longer used in construction or manufacturing in the United Kingdom, York would continue to live with its legacy for many years. Founder and Chairwoman Kim Daniells said it was still receiving inquiries from people diagnosed with mesothelioma who have previously worked in a wide range of industries including the power industry and the former York Carriagewoks. However, the Group had also dealt with queries on behalf of individuals who had suffered the loss of a loved one where there was the suggestion that asbestos exposure might have been implicated in their health problems. Ms. Daniells said the Group was determined to do all it could to raise awareness of the dangers of asbestos exposure and campaign for a better deal for those affected. As associate members of the Forum of Asbestos Support Groups, it could also lend its voice to colleagues across the U.K. and the world. Ms. Daniells said the Group also made donations to organizations researching mesothelioma to try to find an effective treatment for the condition, and it planned to mark Action Mesothelioma Day on July 1, 2011. ASBESTOS UPDATE: Sellwood Widow Claims Victory and Compensation --------------------------------------------------------------- Mary Sellwood, of Middleton-in-Teesdale, England, has secured a significant legal victory over the death of her husband, James Sellwood, who died from workplace exposure to asbestos, the Teesdale Mercury reports. Mrs. Sellwood had reached an out-of-court settlement with Mr. Sellwood's former employers. He conducted laboratory experiments involving the use of asbestos materials, which were recommended by an approved chemistry course book in the 1970s. Mr. Sellwood, who died aged 73 of mesothelioma in November 2008, carried out the experiments while working as a senior lecturer at York St John University from 1963 to 1975. His lectures and laboratory demonstrations were based on the textbook "Chemistry, Collected Experiments," which was published by the Nuffield Foundation in 1967 and which advocated the use of asbestos mats, gauzes, wool, paper and rope in a large number of laboratory experiments. Law firm Irwin Mitchell, representing Mrs. Sellwood, has announced that a settlement has been reached. Mr. Sellwood worked for York St John University from 1963, where it was initially known as St John College York. During his time there, Mr. Sellwood's role went from Senior Lecturer to Principal Lecturer in Chemistry before transferring to the Administration Department as Deputy Registrar and finally Academic Registrar from which he retired in 1992. Isobel Lovett, associate solicitor and industrial disease specialist at Irwin Mitchell, represented Mrs. Sellwood. ASBESTOS UPDATE: Miss. Court Junks Defendants' Bids in ICRC Case ---------------------------------------------------------------- The U.S. District Court, Southern District of Mississippi, Western Division, denied defendants' motions in an asbestos case styled Illinois Central Railroad Company, Plaintiff v. Willie R. Harried, a/k/a William Roy Harried, et al., Defendants. District Judge David Bramlette entered judgment in Civil Action No. 5:06cv160-DCB-JMR on Nov. 3, 2010. This matter came before the Court on Defendants William S. Guy and Thomas W. Brock's Motions for Judgment as a Matter of law and for a New Trial. After extensive pre-trial briefing, the Court held a jury trial on Illinois Central Railroad Company's claims against Willie R. Harried, Warren Turner, Jr., Guy, and Brock. Those claims arose out of earlier settlements of asbestos-related claims by Mr. Harried and Mr. Turner against Illinois Central in a Mississippi state court case known as Eakins for which Mr. Guy and Mr. Brock (both attorneys) represented Mr. Harried and Mr. Turner. The jury returned a verdict on March 11, 2010 against Mr. Guy and Mr. Brock for Illinois Central's claims of fraud and breach of the duty of good faith and fair dealing. The jury found for Mr. Harried and Mr. Turner with respect to Illinois Central's claims against them. The jury awarded Illinois Central US$210,000.00 in compensatory damages (US$90,000.00 with respect to Mr. Harried's settlement and US$120,000.00 with respect to Mr. Turner's settlement) and Mr. $210,000 in punitive damages. Mr. Guy and Mr. Brock now moved for judgment as a matter of law with respect to the jury's verdict. They also moved for a new trial. It was ordered that Defendants' Motion for Judgment as a Matter of Law was denied. It was further ordered that Defendants' Motion for a New Trial was denied. Daniel J. Mulholland, Esq., Brian B. Hannula, Esq., Heather J. Wilkins, Esq., Tanya D. Ellis, Esq., of Forman, Perry, Watkins, Krutz & Tardy in Jackson, Miss., represented Plaintiff. Wayne Dowdy, Esq., of Dowdy & Cockerham in Magnolia, Miss., John G. Corlew, Esq., Katherine K. Smith, Esq., of Corlew Munford & Smith, PLLC in Jackson, Miss., William S. Guy, Esq., of Law Offices of William S. Guy in McComb, Miss., represented Defendants. ASBESTOS UPDATE: Tenn. Appeal Court OKs Ruling in Miller Action --------------------------------------------------------------- The U.S. Court of Appeals of Tennessee upheld the ruling of the Chancery Court for Anderson County, which awarded Clarence E. Miller a divorce; divided the marital property, permitting Mr. Miller to keep the settlements related to his asbestos injuries; and awarded US$250 per month in alimony in futuro to ex-wife Marian N. Miller. The case is styled Clarence E. Miller v. Marian N. Miller. Judges John W. McClarty, Herschel P. Franks, and D. Michael Swiney entered judgment in Case No. E2010-00492-COA-R3-CV on Nov. 9, 2010. Mr. Miller married Mrs. Miller in 1984. At the time of the marriage, he was 61 and a retired employee from Union Carbide and the Navy National Guard, and Mrs. Miller was 50 and she worked various jobs as a nurse and security guard throughout the marriage. Mr. Miller owned a home located at 122 Valley Lane, Clinton, Tenn., during the marriage. In 1997, Mrs. Miller inherited a house located at 311 Murray Drive, Knoxville, Tenn. At trial, there was testimony that the parties had lived separately for at least 10 to 12 years. Late in the marriage, Mr. Miller initiated various cases for his exposure to asbestos and other carcinogens during his employment with the Navy and the Department of Energy. He applied for benefits under the Department of Energy Employee Occupational Illness Compensation Program (EEOICP); filed two workers' compensation claims; and filed a joint claim in a class action lawsuit against asbestos manufacturers. Mrs. Miller was named as a party on the class action lawsuit concerning the asbestos litigation. Periodically, settlement checks from the asbestos litigation were tendered in both Mr. Miller's and Mrs. Miller's names. In April 2008, Mr. Miller's EEOICP claim was approved and he received US$150,000 as a settlement. Shortly after receiving the EEOICP settlement, Mr. Miller filed a complaint for divorce against Mrs. Miller alleging inappropriate marital conduct. Mrs. Miller responded by filing a counterclaim for divorce, a motion for a restraining order to prevent Mr. Miller from dissipating the EEOICP settlement and proceeds from the workers' compensation claims, and a motion for pendente lite alimony. The trial court granted the restraining order concerning the proceeds from the workers' compensation claims and denied the restraining order regarding the EEOICP settlement. A motion for temporary alimony was heard and the trial court awarded US$200 per month in temporary alimony to Mrs. Miller. After an unsuccessful attempt at mediation, a bench trial began on Nov. 9, 2009. At trial, the parties disputed the classification of the EEOICP settlement as Mr. Miller's separate property and whether the parties lived separately for at least 10 years. The trial court eventually awarded a divorce to Mr. Miller; divided the marital property, permitting Mr. Miller to keep the settlements related to his injuries; and awarded US$250 per month in alimony in futuro to Mrs. Miller. This appeal followed. Daniel Kidd, Esq., in Knoxville, Tenn., represented Marian N. Miller. Jodi Loden, Esq., in Clinton, Tenn., represented Clarence E. Miller. ASBESTOS UPDATE: Appeals Court Reverses Ruling in Laverty Action ---------------------------------------------------------------- The Appellate Court of Illinois, Fifth District, reversed the ruling of the Circuit Court of Madison County, which denied CSX Transportation, Inc.'s motion to dismiss an asbestos lawsuit filed by Claudious Laverty on the grounds of forum non conveniens. The Appeals court remanded the cause to the circuit court with directions to the circuit court to dismiss counts I, II, and VIII of the plaintiff's complaint. Judges James Wexstten, Thomas Welch, and Richard Goldenhersh entered judgment in Case No. 5-09-0043 on Oct. 8, 2010. Judge Goldenhersh dissented. Claudious Laverty, individually and as the administrator of the estate of her deceased husband, Thomas R. Laverty, filed a complaint against CSX Transportation and other defendants, for willful and wanton conduct and negligence under the Federal Employers' Liability Act (FELA). In counts I, II, and VIII of her complaint, filed on Dec. 4, 2007, Mrs. Laverty requested that a judgment be entered against CSX Transportation. She alleged that, during the course of Mr. Laverty's employment with CSX Transportation, he was exposed to and inhaled, ingested, and absorbed asbestos fibers, causing his death from mesothelioma in November 2007. Mrs. Laverty is a resident of Texas. Mr. Laverty also resided in Texas when he died and had previously lived in Michigan and Ohio. Neither Mrs. Laverty nor Mr. Laverty ever resided in Illinois. He was employed from 1940 through 1942 and from 1945 through 1979 as a railway fireman and engineer. In 1940, Mr. Laverty began working for Pere Marquette Railroad in Michigan and was so employed in 1947, when the Chesapeake & Ohio Railway purchased the Pere Marquette Railroad. The Chesapeake & Ohio Railway operated from 1869 until 1980, at which time it merged with Seaboard Coast Line Industries to become CSX Transportation. On Feb. 27, 2008, CSX Transportation filed a motion to dismiss counts I, II, and VIII of Mrs. Laverty's complaint on the basis of forum non conveniens. On Jan. 8, 2009, at the hearing on CSX Transportation's motion to dismiss on the basis of interstate forum non conveniens, Mrs. Laverty conceded that no witnesses were located in Illinois and that Mr. Laverty had not been exposed to asbestos in Illinois. As of the date of the hearing, 35 of the 38 codefendants who had entered their appearances in the case had filed forum non conveniens motions. On Jan. 9, 2009, the circuit court denied CSX Transportation's motion to dismiss. On March 11, 2009, this court granted CSX Transportation's timely petition for leave to appeal the circuit court's order. Kurt E. Reitz, Esq., Erick E. VanDorn, Esq., Heath H. Hooks, Esq., of Thompson Coburn, LLP in Belleville, Ill., represented CSX Transportation. Michael R. Bilbrey, Esq., Robert B. Ramsey, Esq., of Law Offices of Michael R. Bilbrey, P.C. in Edwardsville, Ill., represented Claudious Laverty. ASBESTOS UPDATE: District Court Junks McCurdy's Move for Relief --------------------------------------------------------------- The U.S. District Court, Eastern District of Pennsylvania, denied Michael McCurdy's Motion for Relief from the Stay for Limited Purpose of Continuing Discovery in an asbestos case that is part of MDL No. 875. The case is styled In re Asbestos Products Liability Litigation (No. VI); this decision related to: Michael McCurdy v. John Crane- Houdaille, et al. U.S. Magistrates Judge Elizabeth T. Hey entered judgment in EDPA Civil Action No. 08-76815 on Nov. 4, 2010. On Sept. 22, 2010, Defendant R.E. Michel (REM) filed a Notice of Stay in the above captioned asbestos case based on a Notice of Rehabilitation filed by its insurer, Atlantic Mutual Insurance Company. On Oct. 18, 2010, Mr. McCurdy filed a Motion for Temporary Relief from Stay for Limited Purpose of Continuing Discovery. He did not challenge the enforceability of the Order of Rehabilitation, nor did he dispute that Atlantic Mutual is REM's primary insurance carrier. Rather, citing no relevant case law, Mr. McCurdy asked asks this court to lift the stay imposed by the New York Supreme Court to allow him to obtain responses to outstanding discovery requests in direct violation of the New York state court order. The initial Order of Rehabilitation included a 180 day stay, beginning on Sept. 16, 2010. The only hardship alleged by Mr. McCurdy was an inability to complete discovery that should have been completed on June 18, 2010, nearly three months prior to imposition of the stay. ASBESTOS UPDATE: La. Court Upholds Ruling in Rapid-American Case ---------------------------------------------------------------- The Court of Appeal of Louisiana, Fourth Circuit, affirmed the ruling of the Civil District Court, Orleans Parish, which granted Rapid-American Corporation's exceptions of lack of personal jurisdiction. The cases are: Colleen Comer Marchand; Bonnie A. Marchand; Patricia Marchand Picou; Dudley L. Marchand, III; Wayne M. Marchand; Rebecca Marchand Kennedy; Charmaine Marchand Bizette; Brett L. Marchand v. Asbestos Defendants; Anco Insulations, Inc., Bayer Cropscience, Inc. (as Successor of Liability to Rhone-Poulenc AG Company f/k/a Amchem Products, Inc. f/k/a Benjamin Foster Company); Ethyl Corporation (Successor to Albemarle Paper Manufacturing Company); et al. Elodie Granier Rome and Donald Francis Rome v. Asbestos Defendants; Northrop Grumman Shipbuilding, Inc. (Formerly Avondale Industries, Inc. and Formerly Avondale Shipyards, Inc.) and its Executive Officers, Albert Bossier, Jr. and J. Melton Garrett; American Motorists Insurance Company; et al. Wayne Joseph St. Pierre v. Northrop Grumman Shipbuilding, Inc., (Formerly Northrop Grumman Ship Systems, Inc., Formerly, Avondale Industries, Inc., and Formerly Avondale Shipyards, Inc.) and its Executive Officers, et al. Judges Patricia Rivet Murray, Michael E. Kirby, and Roland L. Belsome entered judgment in Case Nos. 2010-CA-0476, 2010-CA-0543, 2010-CA-0766 on Nov. 10, 2010. Judge Belsome dissented. In this consolidated appeal, plaintiffs in three cases appealed the granting of exceptions of lack of personal jurisdiction filed by defendant, Rapid-American. Plaintiffs sued numerous defendants, including Rapid-American, alleging injuries caused by exposure to asbestos-containing products. In their petitions, plaintiffs alleged that Rapid-American is the successor by merger to the Philip Carey Manufacturing Company, which manufactured and sold some of the asbestos-containing products leading to the damages upon which these lawsuits were based. Rapid-American filed declinatory exceptions of lack of personal jurisdiction in all three cases. Following hearings in all three cases, the trial court judges granted Rapid-American's exceptions of lack of personal jurisdiction. Plaintiffs now appeal these three judgments, arguing that the trial courts erred in granting Rapid-American's exceptions of lack of personal jurisdiction. Gerolyn P. Roussel, Esq., Perry J. Roussel, Jr., Esq., Jonathan B. Clement, Esq., Lauren R. Clement, Esq., Roussel & Clement of Laplace, La., represented Plaintiffs/Appellants. Charles V. Giordano, Esq., Anthony J. Milazzo, Jr., Esq., Hebbler & Giordano, L.L.C. of Metairie, La., represented Rapid-American Corporation. ASBESTOS UPDATE: Summary Judgment Denied in Faddish Case -------------------------------------------------------- The U.S. District Court, Eastern District of Pennsylvania, denied Warren Pumps, LLC's Motion for Summary Judgment (filed Feb. 1, 2010) in an asbestos case styled Ruth Faddish, Individually and as executrix of the estate of John Faddish, deceased, Plaintiff v. Warren Pumps, LLC, et al., Defendants. U.S. District Judge Eduardo C. Robreno entered judgment in Civil Action No. 09-70626 on Oct. 22, 2010. This case was part of MDL-875, the consolidated asbestos products liability multidistrict litigation pending in the Eastern District of Pennsylvania. The instant claims were based on failure to warn causes of action under Florida law. Ruth Faddish's husband and the injured party in the instant case, John Faddish, was a serviceman in the U.S. Navy. He served aboard the U.S.S. Essex from 1958-1961. Mrs. Faddish alleged that Mr. Faddish's death from mesothelioma was related to asbestos- containing Warren Pumps LLC products used aboard the U.S.S. Essex. Warren moved for summary judgment on two grounds. First, Warren asserted that there was no genuine issue of material fact as to whether Warren products were a substantial contributing factor to Mr. Faddish's injuries. Second, Warren asserted that they cannot be held liable as a successor-in-interest to pumps manufactured by Quimby Pump Company that were aboard the U.S.S. Essex. The Panel issued a report and recommendation (R & R) denying Warren's Motion for Summary Judgment, finding that the combination of Mr. Faddish's testimony and Mrs. Faddish's expert witness could lead a reasonable jury to find that Warren products were a substantial contributing cause to Mr. Faddish's injuries. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Frederick, Maryland USA. Leah Felisilda, Neil U. Lim, Rousel Elaine Fernandez, Joy A. Agravante, Ronald Sy, Christopher Patalinghug, Frauline Abangan and Peter A. Chapman, Editors. Copyright 2011. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. 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