/raid1/www/Hosts/bankrupt/CAR_Public/110114.mbx
C L A S S A C T I O N R E P O R T E R
Friday, January 14, 2011, Vol. 13, No. 10
Headlines
AK STEEL: $178.6MM Class Action Settlement Gets Final Court OK
ARIENS COMPANY: Recalls 1,040 SnoThro 30LE Deluxe Snow Thrower
DRUG STORES: Say Court Should Not Hear Consumer Class Action
EMC MORTGAGE: Sued Over Home Mortgage Loan Modifications
FIRST NATION: Governments Appeal Sea Lice Class Action Ruling
FORIA INTERNATIONAL: Recalls 20,800 Men's Fleece Sherpa Shirts
GEA PRODUCTS: Recalls 198,000 Dehumidifiers
GENERAL DYNAMICS: Class Action Trial Over Tainted Water Begins
ILLINIOS: Disabled May Move Out of Nursing Homes Under Deal
MEJOONG CORP: Recalls 18,000 Hooded Sweatshirts & Jackets
NATIONAL CITY: Judge Approves $12MM Class Action Settlement
NEWFOUNDLAND, CANADA: Faces Class Action Over Moose Accidents
NORTHLAND PROPERTIES: Sued Over Labor Violations at Denny's
PHILIPS ELECTRONICS: Settles Class Suit Over BPA Use in Bottles
SEARS ROEBUCK: Awaits Decision on Class Action Dismissal Request
SYNGENTA CROP: Hearing Set for Du-Con's Motion to Quash Subpoena
TEKELEC INC: Goldfar Branham Investigates Shareholder Claims
TD AMERITRADE: Settles Accountholder Data Breach Lawsuit
TONGXIN INT'L: Faces Securities Class Action in New York
UNITED LIFE: January 14 Fairness Hearing Set for Class Action
UNITED STATES: Group Has Doubts on Okla. Child Welfare Statistics
VERMONT TEDDY: Recalls 800 Infant & Toddler Footed Pajamas
WYNDHAM WORLDWIDE: Faces Class Action Over Loyalty Fees
Asbestos Litigation
ASBESTOS UPDATE: Cleanup at Chapelcross Station Completed by 50%
ASBESTOS UPDATE: Low Moor Ex-Plumber's Death Related to Exposure
ASBESTOS UPDATE: Fraud Case v. Peirce Firm Reinstated on Dec. 30
ASBESTOS UPDATE: OSHA Probing Alleged Breach at Las Vegas Hotel
ASBESTOS UPDATE: Lee County May Pay for Posen's Asbestos Dumping
ASBESTOS UPDATE: Gorleston Man's Death Linked to Hazard Exposure
ASBESTOS UPDATE: Over 2T Kg of Hazard Cleared From Hastings Pier
ASBESTOS UPDATE: Hazard Use Officially Banned in Turkey Dec. 31
ASBESTOS UPDATE: NBN Affirms Allocation of Funding for Abatement
ASBESTOS UPDATE: Palo Pinto Grand Jury Passes on Dempsey Action
ASBESTOS UPDATE: N.Y. Court Issues Ruling in Great American Case
ASBESTOS UPDATE: Appeal Court Affirms Ruling in Stewart Lawsuit
ASBESTOS UPDATE: N.Y. Appeal Court Issues Ruling in Nostrom Case
ASBESTOS UPDATE: Md. Appeals Court Issues Ruling in Reiter Case
ASBESTOS UPDATE: La. Appeal Court Affirms Ruling in Pichon Case
ASBESTOS UPDATE: Madison Cty. Records Show Drop in Case Filings
ASBESTOS UPDATE: Asbestos Problem in Scotland Pool Not "Serious"
ASBESTOS UPDATE: Combe's Widow Awarded GBP74T in Asbestos Payout
ASBESTOS UPDATE: Madison Building to Get $200,000 Cleanup Grant
ASBESTOS UPDATE: Neosho to Review Cleanup Bids for Two Buildings
ASBESTOS UPDATE: Conn. Board Rules on Cleanup at Litchfield Hall
ASBESTOS UPDATE: EHS Issues New Study on Mesothelioma on Jan. 6
ASBESTOS UPDATE: Clarksville to Pay $77T on Ratchford Demolition
ASBESTOS UPDATE: Abatement at Wilton Primary Could Cost $125,000
ASBESTOS UPDATE: Asbestos to be Removed From Somersworth School
ASBESTOS UPDATE: Lanier Firm Leads National Asbestos Conference
ASBESTOS UPDATE: Court Issues Split Ruling in RLC Envt'l. Action
ASBESTOS UPDATE: Dist. Court Overrules Objections in Larson Case
ASBESTOS UPDATE: Ky. Court Affirms Motion to Remand in Bush Case
ASBESTOS UPDATE: Calif. Court Denies Remand Bid in Culver Action
*********
AK STEEL: $178.6MM Class Action Settlement Gets Final Court OK
--------------------------------------------------------------
Mark Wineka, writing for Salisbury Post, reports the Wallace and
Graham law firm of Salisbury played an instrumental role in
negotiating a $178.6 million class action settlement involving
retirees of AK Steel Corp. of Cincinnati.
Final court approval of the settlement came after a hearing Monday
in U.S. District Court for the Southern District of Ohio.
The settlement resolves claims brought by hourly and salaried
retirees regarding their retirement medical plan. The retirees
had worked for AK Steel's Butler Works plant, located in western
Pennsylvania about a hour's drive north of Pittsburgh.
The settlement provides hourly and salaried class members with
assistance toward their future medical needs by setting up a $91
million trust fund. Also, the retirees will receive continued
benefits worth an additional $87.6 million.
Class co-counsel for the retirees were Gregory F. Coleman of Greg
Coleman Law, Knoxville, Tenn., and Mona Lisa Wallace and John
Hughes of Wallace and Graham of Salisbury.
The case was known as Merkner v. AK Steel Corp. The class
representatives in the lawsuit were Ed Merkner, Tom Rodgers, Pete
Connor, Jack Kriess and Ed Musko.
In a press release, Mr. Coleman said, "In today's economic climate
and in view of the very high cost of medical care, preserving
retiree medical benefits to the maximum extent possible is a
critical priority for our clients.
"It is one of the largest recent retiree benefit settlements of
which we are aware."
Ms. Wallace praised the hard work of her clients.
"The class representatives were involved in this case from the
beginning," she said in a release. "They worked with selfless
dedication to help us obtain the best possible result for their
friends and coworkers. Without their involvement this case would
not have successfully resolved."
Ms. Wallace added, "These steelworkers worked long and hard for
many years, and now as they age, many require medical care. We
look forward to assisting our clients over the coming months in
implementing this very significant class action settlement."
According to court documents, attorneys' fees of $9.1 million will
be paid to the class counsel of Wallace and Graham and Greg
Coleman Law.
The plaintiffs argued in the class action that AK Steel was not
entitled to modify or terminate health benefits to retirees or
their eligible dependents.
The company countered that the benefits were neither vested nor
guaranteed.
In 2006, AK Steel negotiated with the United Auto Workers at the
Butler Works. The collective bargaining agreement said that
beginning Jan. 1, 2007, benefits for hourly retirees from the
Butler Works would be reduced in three steps.
The first two sets of reductions -- the elimination of the
Medicare Part B reimbursement and elimination of dental and vision
insurance -- occurred before the class action was filed.
After the legal action was taken, the court issued a preliminary
injunction preventing AK Steele from changing the remaining health
benefits, pending the end of the lawsuit.
Here are terms of the agreement, according to court filings:
* AK Steele will continue to pay health benefits to hourly
class retirees, whether they are medicare-eligible or not, at
current levels until Dec. 31, 2014.
The approximate value of this commitment is $84 million.
* AK Steel will continue to pay health benefits at current
levels to salaried class retirees, whether or not they are
Medicare-eligible, until Dec. 31, 2014.
The value of this commitment is $3.6 million.
* AK Steel will make cash payments totaling $77.4 million to a
Voluntary Employees' Beneficiary Association (VEBA), set up as a
trust fund.
The VEBA will assume the responsibility for providing health
benefits to hourly class retirees and their dependents beginning
Jan. 1, 2015. The company is relieved of any obligation to pay
health benefits after that date.
* Similarly, AK Steele will make cash payments of $4.5 million
to the VEBA for salary class retirees.
* The VEBA will be governed by a board of trustees charged
with acting in the best interest of the retirees.
* AK Steel will pay the attorney fees for the class co-counsel
of $9.1 million.
ARIENS COMPANY: Recalls 1,040 SnoThro 30LE Deluxe Snow Thrower
--------------------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
Ariens Company, of Brillion, Wis., announced a voluntary recall of
about 1,040 SnoThro 30LE Deluxe Snow Thrower. Consumers should
stop using recalled products immediately unless otherwise
instructed.
Users trying to clear the collector or discharge chute while the
machine is operating could be at risk of a finger or hand injury
hazard.
No injuries or incidents have been reported.
This recall involves the snow thrower is painted orange and black.
The model number is 921020 and serial numbers range from 000101 to
001229 and are located on a label at the rear of the unit next to
the right tire. The Ariens logo is placed on the front of the
control panel. Pictures of the recalled products are available
at:
http://www.cpsc.gov/cpscpub/prerel/prhtml11/11714.html
The recalled products were manufactured in united States and sold
through Home Depot and local Ariens authorized dealerships from
October 2009 to January 2010 for about $1,500.
Ariens Company has fixed about 600 of these units prior to their
sale. To determine if your unit has been repaired contact Ariens.
If your unit has not been repaired, Ariens will assist you in
scheduling an appointment for a free repair with an Ariens
authorized dealer in your area. For more information, contact
Ariens Company toll free at (888) 927-4367 between 7:00 a.m. and
4:30 p.m., Central Time, Monday through Friday or visit the
company's Web site at http://www.ariens.com/
DRUG STORES: Say Court Should Not Hear Consumer Class Action
-------------------------------------------------------------
John O'Brien, writing for Legal Newsline, reports a group of
pharmacies is telling a federal appeals court that West Virginia
Attorney General Darrell McGraw is acting like a class action
lawyer.
Six prescription drug retailers are making that argument in their
appeal of a district court decision that remanded Mr. McGraw's
lawsuit against them to Boone County Circuit Court. They argue
that because Mr. McGraw has basically filed a class action suit,
then it should be heard in federal court.
Those stores appealed the district court's decision to the U.S.
Court of Appeals for the Fourth Circuit in October and submitted
their opening brief on Dec. 28. Mr. McGraw's lawsuit alleges
Target, Kroger, CVS, Walgreen, Wal-Mart and Kmart did not pass
along savings from filling prescriptions with generic drugs on to
consumers.
"(O)n (the Class Action Fairness Act's) plain terms, this action
satisfies CAFA's jurisdictional requirements," the brief says.
"The AG's allegations make abundantly clear that more than $5
million and the interests of more than 100 persons are at issue.
If the rightful interests of the West Virginia consumers on whose
behalf the AG has brought suit are recognized, there also is
undeniably minimal diversity between at least some plaintiffs (who
are West Virginia citizens) and all defendants (as none of the
defendants reside in or is a citizen of West Virginia."
The brief adds that any consumer who was allegedly overcharged is
a real party in interest to the case. Mr. McGraw is seeking
recovery under the West Virginia Consumer Credit and Protection
Act.
Mr. McGraw successfully argued to the lower court that he brought
the action in his parens patriae capacity. That term refers to
the state's power to intervene against a wrongdoer.
The pharmacies say Mr. McGraw's role, under the WVCCPA, is limited
to a representative for the plaintiff class.
"It permits the AG . . . to sue solely as the agent or
representative for overcharged consumers," the brief says. "It
requires that any 'excess charges' recovered by the AG 'shall be
refunded' to the aggrieved consumers.
"It subordinates any claim brought by the AG to any claim brought
by a consumer in his or her own right. And, finally, it binds the
AG to any final decisions as to that consumer. The AG thus stands
in the shoes of the aggrieved consumer, inasmuch as none of these
statutory features would be necessary if the AG were acting on
behalf of the State or its public as a whole."
Mr. McGraw hired two private firms -- Bailey & Glasser and
DiTrapano Barrett & DiPiero -- to pursue the case, and another one
against Rite Aid. The two firms have contributed more than
$60,000 to Mr. McGraw's campaign fund over the years, including
$11,800 for his 2008 race against Republican Dan Greear.
Bailey & Glasser brought similar lawsuits in Michigan and
Minnesota. The Michigan suits were dismissed by a state judge
because the only specific pricing information was obtained by a
West Virginia whistleblower who worked at Kroger.
The Minnesota lawsuit, brought on behalf of unions that provide
health care for their members, was initially dismissed in November
2009 by U.S. District Judge James Rosenbaum, who had harsh words
for the plaintiffs attorneys.
Judge Rosenbaum was peeved that the complaint, filed against 13
defendants, only contained specific pricing information about two
of them.
"(T)his Complaint utterly fails to state a cause of action on any
basis. There are no, none, factual allegations touching any
defendant other than CVS and Walgreen's," Judge Rosenbaum said
Nov. 20, 2009.
"There being no facts from which a fact finder could infer any
liability concerning (the other defendants), and you asked me to
sustain a complaint based upon that. It's not only laughable,
it's absolutely reprehensible."
EMC MORTGAGE: Sued Over Home Mortgage Loan Modifications
--------------------------------------------------------
Keller Rohrback L.L.P. Monday disclosed that a class action has
been filed in the United States District Court for the Eastern
District of Washington on behalf of all mortgagors in the State of
Washington whose home mortgage loans are serviced by EMC Mortgage
Corporation and who (a) have attempted to obtain modifications of
their loan terms from EMC; and (b) have made payments pursuant to
a "Repayment Agreement," a Home Affordable Modification Program
trial modification plan, or any other temporary modification plan.
The complaint alleges, among other things, that the Defendants:
engaged in bad faith as to home mortgage loan modification
negotiations; led mortgagors to reasonably believe and rely on
Defendants' representations that they would permanently modify
their mortgage loans upon successful completion of "Repayment
Agreements" or other trial programs; charged unreasonable,
unlawful, or excessive fees; failed to properly disclose and/or
concealed fees and other charges; failed to provide to mortgagors
a proper or comprehensible accounting of fees, payments, credits,
arrearages, and amounts owed; improperly or under-applied mortgage
payments to accounts; and breached "Repayment Agreements" or other
trial modification program contracts or promises. The complaint
has been filed pursuant to the Washington Consumer Protection Act
and contains additional claims for breach of contract, breach of
the duty of good faith and fair dealing, promissory estoppel, and
unjust enrichment.
Keller Rohrback is also investigating the following mortgage loan
servicers regarding mortgage loan modifications in Washington and
elsewhere:
* American Home Mortgage Servicing, Inc.
* Aurora Loan Services, LLC
* Citimortgage, Inc.
* GMAC Mortgage, Inc.
* JPMorgan Chase Bank NA
* Litton Loan Servicing LP
* Nationstar Mortgage LLC
* OneWest Bank
* SunTrust Mortgage, Inc.
If your home mortgage loan is serviced by EMC Mortgage Corporation
or any of the above-listed servicers and you have questions
regarding these matters, please contact:
Nick Wallace, Paralegal
Gretchen Obrist, Esq.
Lynn Sarko, Esq.
KELLER ROHRBACK L.L.P.
Telephone: (800) 776-6044
E-mail: info@kellerrohrback.com
Keller Rohrback -- http://www.krclassaction.com/-- provides class
action representation. It has offices in Seattle, Phoenix, Santa
Barbara and New York.
FIRST NATION: Governments Appeal Sea Lice Class Action Ruling
-------------------------------------------------------------
A Vancouver Island First Nation says the federal and provincial
governments have filed appeals of a court ruling that cleared the
way for a class action lawsuit about sea lice.
Kwicksutaineuk/Ah-Kwa-Mish First Nation Chief Bob Chamberlin says
he's frustrated that the class action certification will be
reviewed by the B.C. Court of Appeal.
The KAFN contends that open-net pen fish farms in the Broughton
Archipelago, off the northeastern tip of Vancouver Island, have
caused an outbreak of sea lice in the First Nation's traditional
fishing grounds.
Its lawsuit targets the Agriculture Ministry and seeks financial
compensation for depleted wild salmon stocks.
The province unsuccessfully tried to block the Dec. 1 court ruling
by arguing First Nations are generally barred from class action
suits because all members would be required to individually prove
their aboriginal fishing rights.
Judge Harry Slade rejected those arguments and Mr. Chamberlin says
he's saddened senior governments want to overturn the decision and
delay any work toward a more sustainable fishery.
FORIA INTERNATIONAL: Recalls 20,800 Men's Fleece Sherpa Shirts
--------------------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
Foria International Inc., of City of Industry, Calif., announced a
voluntary recall of about 20,800 Men's Fleece Sherpa Shirts.
Consumers should stop using recalled products immediately unless
otherwise instructed.
The shirts fail to meet the federal flammability standard for
wearing apparel and pose a risk of burn injury.
The firm received two reports from consumers stating that the
shirts quickly caught on fire. No injuries were reported.
This recall involves men's pullover Sherpa shirts have a four-snap
placket and long sleeves with rib-knit cuffs. The shirts are made
from 80% cotton and 20% polyester blend brushed Sherpa fleece in
olive and burgundy. A "Norm Thompson" woven label is located at
the center back neckline of the garments. Pictures of the
recalled products are available at:
http://www.cpsc.gov/cpscpub/prerel/prhtml11/11090.html
The recalled products were manufactured in India and sold through
Norm Thompson catalogs and Web site and at Norm Thompson Stores in
Lake Oswego, Lincoln City, Troutdale, Portland, and Portland
Airport, all in Oregon; and in North Conway, N.H. and
Kearneysville, W.V. from September 2003 through November 2009 for
about $45.00.
Consumers should stop using the recalled shirts immediately and
contact Foria International for information on returning the
shirts for a full refund. For additional information, contact
Foria International toll free at (888) 999-6568 between 8:00 a.m.
and 5:00 p.m., Pacific Time, Monday through Friday, or visit the
firm's Web site at http://www.foria.com/
GEA PRODUCTS: Recalls 198,000 Dehumidifiers
-------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
GEA Products L.P., of Louisville, Ky., and CEM Global LLC
(Professional Series) of China, announced a voluntary recall of
about 198,000 GE and Professional Series Brand Dehumidifiers.
Consumers should stop using recalled products immediately unless
otherwise instructed.
A component in the dehumidifier's compressor can short circuit,
posing a fire hazard to consumers.
Midea and GE have received a total of 14 reports of incidents
involving smoke and fumes emitting from the unit and eight reports
of fires. In six of the reported fire incidents, property damage
extended beyond the unit. No injuries have been reported.
This recall involves 30-pint and 40-pint portable dehumidifiers
manufactured between November 2006 and August 2007, and during
April 2008. The dehumidifiers are white with a front-loading
water bucket. "GE" or "Professional Series" and digital controls
are located on top of the dehumidifier. Model and serial numbers
are located on the back of the dehumidifiers. Model and serial
numbers included in the recall are:
Brand Model Number Begins With: Serial Number Begins With
----- ------------------------- -------------------------
GE AHK30LK, AHW30LK, AHM30LK, VL1, ZL1, AM1, DM1, FM1,
AHK40LK, AHH40LK, and GM1, HM1, LM1, MM1, RM1
AHM40LK
CEM
"Professional
Series" PS78303 from C10102336010841
4100001 to
C10102336010841 5103037
Pictures of the recalled products are available at:
http://www.cpsc.gov/cpscpub/prerel/prhtml11/11088.html
The recalled products were manufactured in China and sold through
Walmart, Sam's Club, Home Depot, Menards and other retail stores
nationwide from February 2007 through June 2009 for between $140
and $180.
Consumers should immediately stop using the recalled dehumidifiers
and contact Midea to determine if their product is included in the
recall. Consumers with recalled dehumidifiers will return their
product to an authorized service center for a free repair.
Consumers should not return the recalled dehumidifiers to the
place of purchase. For additional information, contact Midea
toll-free at (877) 593-8721 between 8:00 a.m. and 5:00 p.m.,
Eastern Time, Monday through Friday, or visit the firm's Web site
at http://www.recallverification.com/
GENERAL DYNAMICS: Class Action Trial Over Tainted Water Begins
--------------------------------------------------------------
QMI Agency reports class-action lawsuit nearly a decade in the
making is underway pitting residents near a military base against
the defense department and a munitions company.
People in Shannon, Que., near CFB Valcartier, want compensation
for health problems they say were caused by the presence of an
industrial solvent called Trichloroethylene, or TCE. The solvent,
now considered a carcinogen, was found in municipal drinking
water.
Superior Court Justice Bernard Godbout began hearing arguments by
both sides in a fight that began in 2000, when residents first
learned TCE had been used for years at the base and in a nearby
munitions factory.
Plaintiffs are seeking compensation for seven types of damage:
Physical, moral, material hardship and inconvenience, damage to
personal integrity, damage to the environment and exemplary
damages.
"These are people who consider themselves victims of their own
government," defense lawyer Charles Veilleux told the court in his
opening statement.
"Many of them cannot be here this morning because they are dead."
Marie-Paule Spieser launched the suit in 2003 and said she has
experienced health problems as a result of TCE. Speaking outside
the courtroom on Monday, she told QMI Agency she was anxious but
confident about the suit.
"It is the culmination of 10 years work," she said. "We can
finally reveal all that we know, reveal the inaction of provincial
and federal governments, and recognize the victims."
The munitions factory was initially operated by a federal Crown
corporation and was resold several times. It is currently owned
by the American firm General Dynamics.
TCE seeped into the water from shallow wells and complainants
argue the factory owners and military authorities did not safely
dispose of the chemical.
Citizens contend 500 cancer cases and 200 deaths might be linked
to TCE, but the government says the class action suit is
unfounded.
Ottawa says TCE exposure among Shannon residents was too low to
cause cancer and that the illnesses could have been the result of
lifestyle, diet or genetics.
The class-action suit, if successful, could result in $200 million
in exemplary damages, an amount that federal lawyer Jean St. Onge
said is exhorbitant. He also criticized the plaintiffs for
creating what he called a climate of panic in statements to the
media.
The trial could last until late June and there are more than 120
witnesses scheduled to testify, including 23 experts from around
the world.
ILLINIOS: Disabled May Move Out of Nursing Homes Under Deal
-----------------------------------------------------------
Jared S. Hopkins and Sam Roe, writing for Chicago Breaking News,
report state officials and advocates have reached an agreement in
a federal class action lawsuit that would allow people with
developmental disabilities to move from nursing facilities into
small group homes.
"This is monumental," said Barry Taylor, an attorney with Equip
for Equality, a nonprofit watchdog that served as legal counsel
for the plaintiffs.
Under the consent decree, filed on Tuesday, any of the 6,000
adults in Illinois facilities who want to move to community-based
living arrangements -- small group homes -- would be able to do
so. The filing was also signed by the state.
Although a judge must still approve the agreement, lawyers are
cautiously optimistic. Tuesday's filing comes with the support of
-- and collaboration with -- hundreds of disabled people who had
protested earlier agreements. They argued that the class was too
broad and would negatively impact people who want to prefer living
in the facilities.
Scott Mendel, an attorney for residents at the Chicago-based
Misericordia, said some people want small community living
arrangements while others prefer a larger environment.
"What we really think this decree does is it really does honor
individual choice," said Mr. Mendel. He also said the agreement
ensures that the facilities would not see their funding
transferred to cover new individuals receiving services.
In the 2005 lawsuit plaintiffs alleged the state falls short of
providing services to individuals in the most appropriate
integrated setting, lawyers said. The U.S. Supreme Court has
ruled that undue segregation is discrimination under the American
with Disabilities Act.
"It's a civil rights issue," said Mr. Taylor, whose organization
is representing plaintiffs with the American Civil Liberties Union
and two other organizations. "It's going to fundamentally change
the opportunities for people with disabilities in Illinois."
David Cicarelli, diagnosed with moderate developmental
disabilities and one of nine named plaintiffs, has tried for 14
years to move out of a facility in Lincolnshire with about 100
people into a group home near his parents in Arlington Heights.
He said his current facility means little privacy with a roommate
and following strict time schedules for meals. He wants to have
more freedom to do things on his own, including a chance to work
at Chuck E. Cheese's.
"It is frustrating but I have been patient trying to get a place,"
said Mr. Cicarelli, 37. "It takes a long time."
The decree would also apply to the 3,000 disabled people living at
home. And the state would be required to develop a waiting list
for people who want to live in group homes.
MEJOONG CORP: Recalls 18,000 Hooded Sweatshirts & Jackets
---------------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
Mejoong Corp. dba Hot Kids, announced a voluntary recall of about
18,000 children's hooded sweatshirts and jackets. Consumers
should stop using recalled products immediately unless otherwise
instructed.
The children's hooded sweatshirts have a drawstring through the
hood and/or waist that can pose a strangulation or entrapment
hazard to children. In February 1996, CPSC issued guidelines,
which were incorporated into an industry voluntary standard in
1997, to help prevent children from strangling or getting
entangled on neck and waist drawstrings in upper garments, such as
jackets or sweatshirts.
No injuries or incidents have been reported.
This recall involves children's sweatshirts and jackets sold in
sizes 2 through 12. The items are made of various materials and
were sold in 13 colors and various prints. The brand names MJC,
Hot Kids or MJ Collection are printed on the sewn-in label at the
neck.
Style # Description Material Color Sizes
------- ------------ -------- ----- -----
805 Hooded sweatshirt Cotton Gray, pink, Kids 4-20
black,
burgundy
806 Hooded sweatshirt Cotton Gray Kids 4-20
903 Hooded sweatshirt Polyester Black, Kids 2-18
Brown
2056 Hooded flannel Cotton Black/white Kids 2-18
Shirt
2059 Hooded plaid Cotton Black/white, Kids 2-14
Jacket pink/black,
purple/black,
red/black
4010 Jacket Polyester Black/white, Kids 2-14
pink/black,
purple/black,
red/black
4015 Hooded
Sweatshirt Cotton Navy, white, Kids 4-20
pink,
charcoal,
black,
burgundy
4049 Hooded Cotton Navy, red, Kids 4-18
Sweatshirt burgundy,
gray, blue,
pink, green
4116-B Hooded plaid Cotton Blue, white Kids 2-18
Jacket
4121 Two-piece sports Polyester Black, navy, Kids 2-18
Outfit red, green
4122 Hooded sweatshirt Cotton Black Kids 4-20
4123 Hooded sweatshirt Cotton Black, red, Kids 4-20
heather, gray
5027 Hooded plaid Cotton Black, Kids 2-18
jacket Purple,
White
Pictures of the recalled products are available at:
http://www.cpsc.gov/cpscpub/prerel/prhtml11/11091.html
The recalled products were manufactured in China and Vietnam and
sold through the Hot Kids Store in Los Angeles and from nationwide
wholesalers from June 2002 through January 2010 for between $6 and
$15.
Consumers should immediately remove the drawstrings from the
sweatshirts and jackets to eliminate the hazard or return the
clothing to Hot Kids for a full refund. For additional
information, contact Hot Kids at (888) 946-8546 between 9:00 a.m.
and 5:00 p.m., Pacific Time, Monday through Friday or visit the
firm's Web site at http://www.mejoong.com/
NATIONAL CITY: Judge Approves $12MM Class Action Settlement
-----------------------------------------------------------
According to an article posted at The Blog of Legal Times by Mike
Scarcell, a federal judge in Washington on Tuesday preliminarily
approved a $12 million settlement in a class action that alleges
National City Bank improperly charged overdraft fees on debit card
transactions and provided false information about account
balances.
The plaintiffs, represented by Washington's Tycko & Zavareei, said
in the suit that the bank, which PNC Financial Services Group
purchased in 2008, reordered debit transactions in a manner that
depleted available funds as quickly as possible to increase
overdraft fees. Ballard Spahr represented the bank.
Settlement class members will receive $36 for each an eligible
overdraft charge incurred on debit transactions between July 2004
and August 2010. Under the terms of the agreement, class members
can be compensated for an unlimited number of overdraft charges
incurred in any two calendar months during the class period.
One objector complained about limiting the recovery period to two
months. Judge John Bates of the U.S. District Court for the
District of Columbia said in his ruling today that restricting
compensation to any two months prevents "chronic overdrafters
. . . from being unjustly rewarded for their behavior." The two
months do not have to be consecutive.
The plaintiffs, Judge Bates said in his decision, believe the $12
million settlement amounts to, at most, nearly 25% of the best
possible recovery if the case went to trial. The plaintiffs'
attorneys and the lawyers for the bank both said the settlement is
fair and reasonable, Judge Bates said. The judge scheduled a
fairness hearing for June 13.
NEWFOUNDLAND, CANADA: Faces Class Action Over Moose Accidents
-------------------------------------------------------------
Barb Sweet, writing for The Telegram, reports St. John's lawyer
Ches Crosbie has filed a class-action lawsuit against the
provincial government over moose-vehicle accidents.
Crosbie was to be joined by the Save Our People Action Committee
on Tuesday morning at a news conference in St. John's to announce
the legal action.
Moose were introduced to the province about 100 years ago. The
class action alleges wildlife management practices have allowed
the moose population to reach between 120,000 and 200,000.
There are 700-800 moose-vehicle accidents a year.
Moose stand six- to seven-feet tall, with males weighing more than
1,000 pounds, and females, 800 pounds.
Mr. Crosbie notes in his statement of claim that life on the
island of Newfoundland was wiped out in the last glaciation and
when plant and animal species developed 18,000 years ago, moose
were not among them.
"In the early 1900s, the defendant decided to bring moose to the
island for the purpose of releasing them and populating the
island," reads the statement of claim, adding there is no natural
predator other than black bears, who prey on young calves.
The class action alleges the province's highway system has been
constructed and maintained without adequate consideration to
moose-vehicle safety issues.
"In collisions at highway speeds (roughly 70 to 110 km/h), a car's
bumper and front grill typically will break the moose's legs,
causing the body of the moose to clear the car's hood and deliver
the bulk of the body weight into the windshield, crushing the
windshield, front roof support beams and anyone in the front
seat."
The claim states certain steps could have been taken, such as
fencing, controlling vegetation along roadsides, increased moose
hunting and a spring cull.
It also blames the province for not properly documenting the
number and location of moose accidents and moose warnings from
motorists, and for the lack of a consistent awareness program.
Hugh George, 59, and Ben Bellows, 54, are the representative
plaintiffs in the class action.
Mr. Bellows' accident occurred 10 kilometers west of Clarenville
on July 10, 2003, as he was returning home to Mount Moriah after
bringing his daughter to St. John's.
Mr. Bellows, according to the statement of claim, was traveling
92 kilometers per hour when he struck the moose.
He ended up a quadriplegic, and neither he nor his wife, Helen,
have been able to work since the accident due to the care required
for Mr. Bellows, previously a school board maintenance worker.
It's been five months since Hugh George's life was forever
altered, and he remains in the Miller Centre with hopes of finally
going home the end of the month.
On Aug. 5, Mr. George left work in St. John's for home in Dildo.
A foreman/carpenter with Newfoundland and Labrador Housing, he was
working on his own new home in Dildo and went to his mother's
house in Dunville to get a chopsaw and bench.
It was dusky and George drove below speed limit, as he had years
of experience on the Argentia Access Road, which is well traveled
by moose.
"I made it as far as the rock cut on the Argentia Access Road and
that's when I met the moose. I ended up hitting a guard rail as
well," he told the Telegram in an interview at his bedside.
After that, he doesn't remember much of what happened.
His wife, Sandra, got a call that night to go directly to the
Health Sciences Centre.
"He was on life support for nine days," said Sandra. Even
afterwards, he didn't wake from an induced coma for days after he
should have.
She first walked into ICU to see Mr. George in a neck brace,
hooked up to tubes and covered in blood, which turned out to be
the moose's.
"I had never seen anything like it. I don't want to see it
anymore," Sandra said.
"When it happened to him, and I stood there in ICU all those days,
looking at him ,you wonder is he going to wake up, is he going to
die because of an animal?"
Mr. George said he couldn't even walk across the room after waking
up.
He said his left field of vision is gone, and while rehabilitative
services is helping his left leg, his left arm remains mostly
immobile. It's unlikely he will return to his previous duties.
Prior to his accident, Mr. George was getting ready to floor up
his house, for which had the concrete poured. Men from his church
-- Trinity Bay South Salvation Army -- did the work for him when
they saw his condition.
The couple have had to make renovations to the home they'd been
living in to accommodate Mr. George's injuries.
Sandra George said she wrote Environment Minister Charlene Johnson
about her husband's accident, pleading for more attention on the
dangers of moose. Not long afterwards, she heard the news that a
22-year old man was killed on the Tilton Barrens near NewHarbour
after striking a moose.
"Spray something on the Highway as a deterrent for them coming out
to feed," Hugh George said.
"The ditches are not being cleaned out like years ago."
Mr. George had a close call more than 15 years ago, hitting a
moose with a small truck on the passenger side -- he figures if
someone was with him, they would have been killed.
"We live in a part of the world where it gets dark early and it
stays dark for a long time. To me, the moose have more rights
than we have," Sandra said.
"You get on the highway on any given morning at 6:30 -- hundreds
and hundreds of cars traveling in here to work. Same thing in the
evening."
Sandra continues to drive back and forth from Dildo -- she'd taken
time off from her doctor's office job in St. John's, but has been
tending to her husband. She said she can't let fear bother her.
She had a close call two days after Mr. George's accident, driving
home to Dildo from St. John's with friends.
"A moose comes along and we went right under his chin. I said
'His drool is on the roof,'" she recalls.
"This is preventable. Don't dance around it and say 'Don't drive
at night." That's foolishness. You got to drive at night."
The class action must go through a certification process at the
Supreme Court of Newfoundland and Labrador in order to proceed.
NORTHLAND PROPERTIES: Sued Over Labor Violations at Denny's
-----------------------------------------------------------
Carlito Pablo, writing for The Georgia Straight, reports nearly
two years ago, Herminia Vergara Dominguez left her two young
children in the care of her mother and traveled from the
Philippines to Canada.
Recruited under Canada's Temporary Foreign Worker Program,
Ms. Dominguez crossed the seas to serve food and beverages at a
Denny's restaurant in Vancouver.
Her employment contract assured her of 40 hours of work per week,
and additional 50% pay over her regular wages for overtime.
But according to Ms. Dominguez, these terms and other provisions
in the contract were not followed by the employer.
Now, Ms. Dominguez finds herself as a representative plaintiff in
a $10-million class-action lawsuit against Northland Properties
Corporation and Dencan Restaurants Inc., which run Denny's
restaurants in B.C., for alleged breach of contract.
Northland Properties is the parent company of Denny's 24-Hour
Restaurant in Canada, and other establishments such as Sandman
Hotels, Inns & Suites; Moxie's Classic Grill; Shark Club & Grill;
and Northland Asset Management Company.
On January 7, a notice of claim under the Class Proceedings Act
was filed by lawyers representing Ms. Dominguez and over 50 other
former and current employees of Denny's, who were brought over to
Canada under the Temporary Foreign Worker Program, starting in
December 1, 2006.
The notice includes claims in addition to allegations the employer
failed to provide the promised 40 hours of work per week, and to
correctly calculate and pay overtime wages.
It alleges that the employer did not pay for the cost of the
workers' air travel between the Philippines and Canada. The
notice also says that the plaintiffs paid about $6,000 each to
employment agencies hired by Northland Properties to recruit
workers, which it cites as a violation of B.C. labor laws.
The plaintiffs' allegations have not been proven in court.
In addition to general damages and other costs, the lawsuit
specifically asks for $9 million in punitive damages for the
defendants' "outrageous and malicious conduct".
These alleged actions include the termination of the employment of
class member Alfredo Sales "as a consequence of his inquiries into
the payment of his outstanding overtime". Mr. Sales also asked
for the payment of the cost of his two-way air travel between the
Philippines and Canada.
The notice also claims that class member Maria Genalyn Reyes was
threatened to be sent home if she accepted a position at Wendy's,
a restaurant chain competitor, instead of renewing her contract
with Denny's.
Brent Armstrong is the director for marketing for Denny's Canada.
When reached for comment about the case, Mr. Armstrong told the
Straight in a brief phone interview on Tuesday, "Their claims have
no merit. That is the extent of our quote."
Mr. Dominguez's employment contract and work permit will expire on
January 25.
According to the notice of claim, Denny's has made no arrangements
to pay for her travel to return to the Philippines as required by
the contract.
In a media release dated January 10, Christopher Foy, one of the
lawyers for the plaintiffs, said, "These workers were encouraged
to come to Canada with a set of promises that have never been met
-- they have done their part but the Defendants have not lived up
to their end of the deal."
PHILIPS ELECTRONICS: Settles Class Suit Over BPA Use in Bottles
---------------------------------------------------------------
Anthony Clark, writing for Plastics & Rubber Weekly, reports two
US law firms claim to have obtained a "landmark settlement" over
the use of bisphenol A (BPA) in plastic drinks bottles. Whatley
Drake & Kallas and Walters Bender Strohbehn & Vaughan have
resolved a multi-district federal class-action lawsuit with
Philips Electronics Corp. North America over the use of BPA in
baby bottles.
Philips sold Avent-branded plastic baby bottles and "sippy" cups
that contained BPA. Plaintiffs alleged that Philips and several
other manufacturers were liable for breach of warranty, violations
of deceptive trade practices statutes and unjust enrichment when
they failed to disclose to consumers that these products contained
BPA, which the law firms claim poses health risks.
The settlement resolves the case against Philips while preserving
all claims against the remaining defendants.
"We are pleased that Philips has stepped up and taken the lead in
agreeing to the serious practice reforms and monetary benefits
outlined in the settlement," said Edith Kallas of Whatley Drake &
Kallas.
Thomas Bender of Walters Bender Strohbehn & Vaughan, added: "BPA
is a dangerous chemical in the wrong applications, and Philips is
to be commended for agreeing to this relief. Consumers who
purchased these products will be able to obtain significant
relief, and we hope other manufacturers will follow Phillips in
both agreeing to not use BPA in products without warning of the
dangers and in allowing purchasers recovery for their losses."
SEARS ROEBUCK: Awaits Decision on Class Action Dismissal Request
----------------------------------------------------------------
Amelia Flood, writing for The Madison St. Clair Record, reports
Madison County Circuit Judge David Hylla has yet to decide whether
to dismiss, halt or allow a class action over allegedly faulty
washing machines to continue.
Hylla heard arguments in September 2010 in which defendant Sears
Roebuck & Co. asked the judge to dismiss a proposed class action
brought by lead plaintiff Therese Dalla Riva.
Barring a dismissal, the company asked Judge Hylla to stay the
Madison County suit until a San Francisco federal court decides on
a nearly identical nationwide class action pending there.
Ms. Dalla Riva's attorneys -- Mark Goldenberg and Lori Andrus --
argued there were enough differences between the two suits to
warrant Ms. Dalla Riva's going ahead.
Ms. Andrus also heads the team that filed that pending California
class action.
Judge Hylla took the matter under advisement and has yet to enter
his decision.
Ms. Dalla Riva claims that she and others who bought Kenmore Elite
Oasis washing machines got products with defective electric
control panels that caused the machines to stop mid-cycle.
The Dalla Riva suit also claims that there is a possibility that
class members' washing machines could explode.
Sears attorney Michael Williams dismissed the differences in the
suit, telling Judge Hylla during September's arguments that the
explosion claim was a "red herring."
U.S. District Court Judge Jeremy Fogel, who oversees the
California suit led by Renee Tietsworth, already dismissed some of
the claims now at issue in the Dalla Riva suit.
"You've got some lawyers calling the shots and they didn't get
what they wanted there so they've come here because they want a
second shot here," Mr. Williams said.
Ms. Andrus countered that there was enough at issue to keep the
Dalla Riva case going.
"These are not made up claims," Ms. Andrus said in September's
hearing.
Ms. Andrus is from the San Francisco firm of Andrus Anderson LLP.
Mr. Williams is from the Denver firm of Wheeler Trigg O'Donnell
LLP.
Stephen Strauss of Bryan Cave LLP of St. Louis also represents
Sears.
The Dalla Riva suit is Madison case number 10-L-203.
The Tietsworth suit is on-going in the U.S. District Court for the
Northern District of California. It is case number 5:09-cv-00288-
JF.
SYNGENTA CROP: Hearing Set for Du-Con's Motion to Quash Subpoena
----------------------------------------------------------------
Amelia Flood, writing for The Madison St. Clair Record, reports a
non-party in one of a series of proposed Madison County class
actions centering on the weed killer atrazine, is moving to quash
a defense subpoena.
Du-Con's move will be heard at 9:00 a.m. on Friday, Jan. 14, by
Madison County Circuit Judge William Mudge.
Bob Perica of Wood River represents Du-Con.
Defendant Syngenta Crop Protection Inc. subpoenaed records from
Du-Con and the testimony of one of its employees last year.
The subpoena comes as discovery in one of a series of 2004
proposed class actions led by the Holiday Shores Sanitary District
continues.
Holiday Shores proposes to lead a class of Illinois municipalities
and water providers against Syngenta and the other companies that
make and distribute atrazine.
The plaintiffs claims that atrazine runs off farm fields into
their water supplies and that they must then remediate the
contamination.
Syngenta denies the allegations in the plaintiffs' complaint.
The plaintiffs' attorneys -- Stephen Tillery, Christie Deaton and
others -- filed a nearly identical federal class action over
atrazine contamination last year.
That case is led by the city of Greenville and would include a
class of water providers in Missouri, Kansas, Ohio and other
states. The case is currently pending in the U.S. District Court
for the Southern District of Illinois.
Neither the older Madison County suit nor the 2010 federal class
action have been certified to date.
Currently, the Syngenta suit is before the Fifth District
Appellate Court in Mount Vernon on other non-party discovery
disputes.
In its move to quash the subpoena, Du-Con claims that information
Syngenta has requested is in the hands of Holiday Shores.
The company also claims that an employee Syngenta seeks testimony
from works at the sanitary district.
Due to those reasons, Du-Con claims it does not have the
information requested by the subpoena and seeks to have it killed.
A December hearing on the issue was canceled.
Judge Mudge took over the case from former Madison County Circuit
Judge Daniel Stack. Stack took it over from Madison County Circuit
Judge Barbara Crowder.
Kurtis Reeg is lead counsel for Syngenta in the Madison County
case and is part of its defense team in the federal suit.
The Syngenta case is Madison case number 04-L-710.
The atrazine class actions are case numbers 04-L-708 to 04-L-713.
TEKELEC INC: Goldfar Branham Investigates Shareholder Claims
------------------------------------------------------------
Goldfarb Branham LLP is investigating whether the board of
directors of Tekelec violated shareholder protection laws due to
allegations from a shareholder class action lawsuit. Shareholders
-- or anyone with knowledge of the allegations in the complaint --
are invited to contact the firm at 877-583-2855 or
hlindley@goldfarbbranham.com to discuss this action.
"When the company announced its operating results on August 5,
2010, the company's stock fell 9% on heavy trading volume."
"The class action lawsuit alleges that the defendants failed to
disclose: (1) important information about the company's
difficulties in emerging markets due to security and regulatory
issues; (2) emerging market customers had credit issues which
caused a delay in purchases; and (3) the company was experiencing
a sharp decline in new orders," said attorney Hamilton Lindley.
"When the company announced its operating results on August 5,
2010, the company's stock fell 9% on heavy trading volume."
Goldfarb Branham's lawyers have an outstanding reputation for
complex litigation and experience in precedent setting securities
fraud cases that have resulted in substantial recoveries for
shareholders. If you purchased Teklec stock before or during
February 11, 2010 and August 5, 2010, contact securities lawyer
Hamilton Lindley at 877-583-2855 or hlindley@goldfarbbranham.com
Goldfarb Branham is not afraid to give advice, stand by it, and go
to court to get results.
Contacts: Hamilton Lindley, Esq.
GOLDFARB BRANHAM LLP
Toll Free: 877-583-2855
Telephone: 214-583-2233
Fax: 214-583-2234
E-mail: hlindley@goldfarbbranham.com
Web site: http://www.goldfarbbranham.com/
TD AMERITRADE: Settles Accountholder Data Breach Lawsuit
--------------------------------------------------------
NOTICE OF PROPOSED CLASS ACTION SETTLEMENT
To: All persons who are or were accountholders or prospective
accountholders who provided physical mailing, postal or email
addresses to TD Ameritrade, Inc. on or before September 14,
2007 (the "Settlement Class").
Your rights might be affected by a Class Action Settlement.
Below is a summary of the proposed settlement in In re TD
Ameritrade Account Holder Litigation, Case No. C 07 2852 VRW (N.D.
Calif.).
WHAT THIS SETTLEMENT IS ABOUT: These lawsuits were filed against
TD Ameritrade, Inc., et al. (the "Company" or "Defendant") on
behalf of the Settlement Class. The amended consolidated complaint
("Complaint") alleges that an unauthorized third party acquired
email addresses of the Company's accountholders that were then
used by spammers to send unsolicited emails promoting certain
stocks. The Complaint seeks monetary and injunctive relief for any
alleged injuries arising from the data breach, including alleged
receipt of spam and identity theft, if it were to occur. Recovery
is sought based upon the alleged violation of various state and
federal laws and alleged breach of fiduciary duty. The Company
denies any liability in the matter and has no evidence that the
data breach has resulted in identity theft. To resolve this matter
without the expense and uncertainties of litigation, the Parties
have reached a proposed settlement. This Settlement is not an
admission of wrongdoing by any party.
WHAT THIS SETTLEMENT PROVIDES: If the Settlement is approved by
the Court, the Settlement will provide various benefits to the
Settlement Class, including compensation for Settlement Class
Members who suffered identity theft. To be eligible for
compensation, Settlement Class Members must complete a Claim Form
that will be available as described below and send the completed
Claim Form or submit it electronically to the Claims Administrator
by no later than July 6, 2011. Eligibility and the amount of
compensation will be determined by a Claims Administrator and will
depend upon various factors explained in the Claim Form and the
full Notice of Proposed Class Action Settlement (the "Notice"),
which are available as described below. Compensation paid to an
individual claimant can range from $50 to $2,500. Total
compensation paid to all claimants will not exceed $6.5 million,
inclusive of any attorneys' fees or cost award. The Company is
required to pay no less than $2.5 million in Settlement benefits.
In addition, the Company will retain an independent information
technology security consultant to assess whether the Company has
met certain information technology security standards.
In return for these benefits, the lawsuits will be dismissed and
members of the Settlement Class who do not exclude themselves from
this Settlement according to the procedures described below will
be deemed to have released all claims against the Company relating
to the unauthorized acquisition of email addresses and any other
customer information and/or the receipt of SPAM emails, identity
theft and any increased risk of identity theft.
THIS IS ONLY A SUMMARY NOTICE: The details of how to obtain and
complete a Claim Form, the release, provisions for attorneys' fees
and costs, and other pertinent information about the terms of the
Settlement are set forth in the Notice. You may obtain a copy of
the Notice by visiting the Settlement Web site at
http://www.AccountDataSettlement.com/or by mailing a request for
the Notice to the Claims Administrator:
TD Ameritrade Settlement Administrator
P.O. Box 6177
Novato, CA 94948-6177
WHO REPRESENTS THE MEMBERS OF THE CLASS? The Court has appointed
several lawyers to represent the Settlement Class. The Class
Counsel who is designated to respond to questions is:
Gretchen M. Nelson, Esq.
Kreindler & Kreindler LLP
707 Wilshire Blvd., Suite 4100
Los Angeles, CA 90017
You may hire your own attorney if you wish; however, you will be
responsible for that attorney's fees and expenses.
FAIRNESS HEARING: A hearing will be held on April 7, 2011, at the
U.S. District Court for the Northern District of California, San
Francisco Division, 450 Golden Gate Ave., San Francisco, CA 94102,
to determine the fairness of the proposed Settlement, including
the amount of any award to Class Counsel for costs and attorneys'
fees. The date for the hearing may be changed without notice. YOU
ARE NOT OBLIGATED TO ATTEND THIS HEARING.
TO OBJECT TO THE SETTLEMENT: If you are a member of the Settlement
Class and wish to comment on or object to the Settlement you must
timely file your objection or comments in writing with the Clerk
of the U.S. District Court for the Northern District of
California, San Francisco Division, 450 Golden Gate Ave., San
Francisco, CA 94102, on or before March 15, 2011, and follow other
procedures described in the Notice.
TO EXCLUDE YOURSELF FROM THE CLASS: If you are a member of the
Settlement Class, you have the right to exclude yourself from both
the Settlement Class and the Settlement by following certain
procedures described in the Notice, including but not limited to
sending a written request for exclusion to the Claims
Administrator at the address above, on or before March 15, 2011.
For more information, or to obtain a copy of the Settlement
Agreement and other documents filed with the Court, you can view
the Court file in the Clerk's Office, visit the Settlement Web
site at http://www.AccountDataSettlement.com/or contact Class
Counsel at 800-331-2782.
Please Do Not Contact The Court Or The Clerk Of The Court
Concerning This Notice.
By Order of the Court,
Dated: December 20, 2010
THE HONORABLE CHIEF JUDGE VAUGHN R. WALKER
U.S. DISTRICT COURT FOR THE
NORTHERN DISTRICT OF CALIFORNIA,
SAN FRANCISCO DIVISION
* * *
TD Ameritrade is represented in this matter by:
Robert J. Kriss, Esq.
Mayer Brown LLP
71 South Wacker
Chicago, IL 60606
TONGXIN INT'L: Faces Securities Class Action in New York
--------------------------------------------------------
Bronstein, Gewirtz & Grossman, LLC, Monday disclosed that a class
action has been filed in the United States District Court for the
Eastern District of New York on behalf of those who purchased or
otherwise acquired stock of Tongxin International, Ltd. during the
period between May 15, 2009 through and including December 14,
2010.
The complaint accuses Tongxin and certain of its officers with
violations of the Securities Act of 1934 by failing to disclose
that: (i) The company failed to properly account for certain
related transactions, and as a result, would be unable to file its
audited consolidated financial statements for FY 2009; (ii) the
Company would not have earning growth, particularly in the South
East Asian markets, or meet expected earnings guidance; (iii) some
of the Company's top officers were conspiring to embezzle Company
funds; (iv) the Company lacked adequate internal control; and (v)
the defendants lacked any reasonable basis for the positive
statements about Tongxin's growth and future business prospects.
Shares of Tongxin common stock have fallen from a high of $6.16
per share to as low as $1.25 per share, representing a drop of
more than 75%.
No Class has yet been certified in the above action. If you wish
to review a copy of the Complaint, to discuss this action, or have
any questions, please contact:
Peretz Bronstein, Esq.
Eitan Kimelman
BRONSTEIN, GEWIRTZ & GROSSMAN, LLC
Telephone: 212-697-6484
E-mail: eitan@bgandg.com
Those who inquire by e-mail are encouraged to include their
mailing address and telephone number. March 4, 2011 is the
deadline for investors to seek a lead plaintiff appointment.
Bronstein, Gewirtz & Grossman, LLC represents institutions and
other investor plaintiffs in class action security litigation, the
firm's expertise includes general corporate work, private
securities offerings, and securities arbitration.
UNITED LIFE: January 14 Fairness Hearing Set for Class Action
-------------------------------------------------------------
Amelia Flood, writing for The Madison St. Clair Record, reports a
fairness hearing is set to determine whether or not a $160,000
settlement of a 2001 class action against United Life Insurance
Co. should stand.
Madison County Circuit Judge David Hylla will preside at the
fairness hearing scheduled at 1:00 p.m. on Friday, Jan. 14.
Judge Hylla already entered the initial approval of the settlement
between lead plaintiff Christopher Booher and the insurance
company in October.
Mr. Booher settled with United Life on behalf of a class of car
buyers who were allegedly sold fraudulent credit insurance.
The total settlement is worth $160,000.
Mr. Booher, a high school classmate of attorney Bradley Lakin,
took home $2,500.
Mr. Lakin, the managing partner at the Wood River firm of
LakinChapman LLC and his team, represented the class.
They will take home up to 40% of the settlement in fees.
The suit is one of a series filed by the former partnership of the
then Lakin Law Firm and Chicago firm of Freed & Weiss.
That partnership fell apart in 2007.
Last year's settlement was the result of mediation.
Mr. Booher has headed at least one other Madison County class
action.
Robert Schmieder II represents Mr. Booher and the class.
Paul Weiss is named as assistant counsel for the class.
James Garrison represents United Life Insurance.
The class action was certified by then-Madison County Circuit
Judge Philip Kardis.
Judge Kardis certified a nationwide suit that eventually was
whittled to an Illinois-only class.
Former Madison County Circuit Judge Don Weber had the case before
Judge Hylla.
Another defendant in the case, Four Flags Motors, was dropped from
the suit.
The case is Madison case number 01-L-1842.
UNITED STATES: Group Has Doubts on Okla. Child Welfare Statistics
-----------------------------------------------------------------
Randy Ellis, writing for The Oklahoman, reports attorneys
assisting a national children's rights organization say they are
investigating whether officials with the state Department of Human
Services are endangering Oklahoma children by cutting back on
child abuse investigations to make the state's child welfare
statistics look better.
"We're concerned that instead of fixing the underlying problems in
the system, DHS may be manipulating numbers and dangerously
restricting the number of children coming into state custody,"
said Tulsa attorney Paul DeMuro. Mr. DeMuro is one of the
Oklahoma lawyers who have joined New York-based Children's Rights
in suing DHS officials in a class-action federal court lawsuit
over the treatment of children in state custody.
DHS spokeswoman Sheree Powell denied the accusations that
statistics are being manipulated.
The Oklahoman reported on Jan. 9 that a recently released report
showed Oklahoma has improved statistically in several child
maltreatment categories. Its verified rate of abused and
neglected children in 2009 was 8.3 per 1,000 children, which was
better than the national average of 10.1.
Mr. DeMuro said a decrease in the verified rate of abused and
neglected children doesn't necessarily mean fewer Oklahoma
children are being abused. It could also mean fewer complaints
are being verified because DHS employees have been less diligent
in investigating complaints, he said.
"DHS has substantially curtailed its practice of conducting
investigations in response to . . . (complaints) in favor of a new
approach of performing 'assessments' that rarely result in
children being taken into state custody," Mr. DeMuro's group said
in a recent federal court filing.
Under DHS policy, assessments are supposed to be limited to
circumstances where the reported abuse or neglect does not
constitute a serious and immediate safety threat, while
investigations are supposed to be ordered for more serious
allegations, the group said.
From fiscal year 2008 to fiscal year 2010, the number of
assessments done by DHS increased from 7,774 to 16,689, while the
number of investigations dropped from 27,373 to 12,012, according
to the court filing.
Mr. DeMuro pointed to the washing machine death in November of
Bartlesville infant Maggie May Trammel as an example of a case
where DHS may have contributed to her death by ordering
assessments in response to repeated reports of rampant drug abuse
in the home rather than investigations.
DHS attorneys have fought to keep opposing attorneys from
gathering information about the Trammel case, he said.
Mr. DeMuro also noted that DHS is screening out complaints at a
much higher rate than the national average and substantiating
abuse claims at a lower rate than the national average.
Ms. Powell accused DeMuro and his colleagues of attempting to
"exploit the sensational facts in the tragic death of Maggie May
Trammel to create publicity for their class action lawsuit."
Ms. Powell said Maggie and her siblings were not in state custody
at the time of Maggie's death, so they should not be considered
part of a class-action lawsuit where the defined class is children
in state custody.
She denied allegations that workers are being asked to perform
assessments rather than investigations to reduce the number of
confirmed abuse cases and reduce the number of children in foster
care.
"Safety of children is first and foremost in everything we do,"
she said, adding that workers performing assessments always have
the option of referring cases for investigation if they believe it
is warranted.
She said calls are only screened out when they are duplicates or
the complaints don't meet the legal definition of abuse or
neglect.
Mr. DeMuro also alleged that DHS has intentionally underreported
the extent of abuse or neglect of children in state care by only
counting cases involving children in foster homes and excluding
complaints involving children in shelters and group homes.
"Only 5 to 7 percent of children currently in state care are in
group homes or institutional placements," Ms. Powell responded.
"Including the numbers of abuse/neglect in these settings would
not have a significant effect on our statewide safety rating
percentage."
Oklahoma follows federal rules in the way it reports child welfare
statistics, she said.
VERMONT TEDDY: Recalls 800 Infant & Toddler Footed Pajamas
----------------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
The Vermont Teddy Bear Co. Inc., dba Pajamagram, of Shelburne,
Vt., announced a voluntary recall of about 800 Hoodie Footie(TM)
Infant and Toddler Footed Pajamas. Consumers should stop using
recalled products immediately unless otherwise instructed.
The metal snaps that attach the hood to pajamas can come off,
posing a choking hazard to young children.
No injuries or incidents have been reported.
This recall involves the Hoodie-Footie (TM) infant and toddler
footed pajamas have a front zipper and a detachable hood. The
style "Winter Whimsy" is red fleece with multi-colored penguins,
snowmen and snowflake designs. They were sold in infant sizes 0
to 18 months and toddler sizes 2T to 5T. "Hoodie Footie," the
size and the code GPU#SUNHFH1 or GPU#SUNHFH2 are printed on a
label at the neck of the pajamas. Pictures of the recalled
products are available at:
http://www.cpsc.gov/cpscpub/prerel/prhtml11/11089.html
The recalled products were manufactured in China and sold
through Pajamagram catalogs and on the firm's Web site
http://www.pajamagram.com/from November 2010 through December
2010 for about $30.
Consumers should immediately take the recalled pajamas away from
children and contact Pajamagram to receive free replacement
pajamas plus a $25 gift card. For additional information, contact
The Vermont Teddy Bear Company/Pajamagram at (800) 262-1162
between 9:00 a.m. and 5:00 p.m., Eastern Time, Monday through
Friday, or visit the firm's Web site at http://www.pajamagram.com/
WYNDHAM WORLDWIDE: Faces Class Action Over Loyalty Fees
-------------------------------------------------------
Sara K. Clarke, writing for the Orlando Sentinel, reports
franchisees have filed class-action lawsuits against two major
hotel brands, saying the companies are illegally taking loyalty
fees for guests who, in some cases, don't even know they've been
enrolled in frequent-stay programs.
The suits, filed in U.S. District Court in Orlando last month,
allege that Wyndham Worldwide Inc. and Choice Hotels International
Inc. have inflated the ranks of their loyalty programs and are
collecting fees from hotels when those guests stay at franchise
properties.
Lawyers for the hoteliers have asked for more than $260 million in
damages from Wyndham, and more than $225 million from Choice --
figures they termed "very conservative."
Choice Hotels and Wyndham's hotel group said they do not comment
on pending litigation. Choice's hotel brands include Clarion,
Quality and Comfort Inn, while Wyndham's stable includes Days Inn,
Ramada and Super 8.
The suit was filed in Central Florida because the lead plaintiffs
-- Jade Hospitality LLC and Amar Shakti Enterprises LLC -- are
locally based.
At issue in the lawsuit are two practices: Auto-enrollment and
"proactive matching." Franchisees say the hotel companies had
been auto-enrolling guests who booked online into loyalty
programs, unless the guests opted out. The matching happened when
personal data were used to reward loyalty points to guests even if
they didn't provide their membership information at the time of
booking or check-in.
Franchisees say the result was that they were paying program fees
of up to 5% of gross room sales generated by the program guests,
who may or may not have stayed at their property because of the
loyalty program, and who may not have known they were entitled to
benefits.
"The real purpose of a rewards program is that you build customer
loyalty," said David Wood, an attorney for the franchisees. "In
that event, the hotel franchisee would benefit. But under
proactive matching, that doesn't happen."
Wood also argues that charging the extra fee for the loyalty
programs is against the franchise contracts of both companies and
is a violation of Florida's Deceptive and Unfair Trade Practices
Act.
"The issue in both cases is that the fee is not authorized by the
franchise agreements," he said.
Asbestos Litigation
ASBESTOS UPDATE: Cleanup at Chapelcross Station Completed by 50%
----------------------------------------------------------------
The removal of asbestos at the former Chapelcross nuclear power
station near Annan, Scotland, is completed by 50%, The Cumberland
News reports.
Experts have stripped the asbestos from eight of the 16 heat
exchangers at the plant. When complete, the entire project will
remove more than 3,300 tons of asbestos from the atomic station.
An important milestone has been reached by the site's main
asbestos contractors, Kitsons, working more then 250,000 hours
without a lost time accident.
The removal work at Chapelcross has dramatically changed the
appearance of the site, which now has blue containment cladding
erected around all of its 16 heat exchangers to protect pipe work
from the elements.
Chapelcross director Dave Wilson said, "Reaching over a quarter of
a million hours worked without a lost time accident is a
significant achievement and demonstrates a positive safety culture
and excellent safety performance within the Magnox project team
and the contractors' workforce and management."
ASBESTOS UPDATE: Low Moor Ex-Plumber's Death Related to Exposure
----------------------------------------------------------------
An inquest at Bradford, England, heard that the death of Geoffrey
Bell, a former plumber from Low Moor, Bradford, England, was
related to workplace exposure to asbestos, the Telegraph & Argus
reports.
The inquest heard how Mr. Bell's family was now seeking
compensation for his death last March 2010. He had left school to
be an apprentice with a business in Saltaire for two years before
leaving the firm and taking on other jobs.
The inquest heard Mr. Bell had told his family when he was at that
workplace he had been exposed to asbestos on a daily basis. In
later years, he went on to suffer heart problems and a number of
strokes. He also had mesothelioma.
Mr. Bell was taken to Bradford Royal Infirmary where he died three
days later.
Coroner Roger Whittaker said he believed there was a causal
relationship between Mr. Bell having been an apprentice plumber at
15 and his death, which was proved by asbestos fibers he had
inhaled. He said Mr. Bell had died from industrial disease.
ASBESTOS UPDATE: Fraud Case v. Peirce Firm Reinstated on Dec. 30
----------------------------------------------------------------
The U.S. Court of Appeals for the Fourth Circuit, in an opinion
released on Dec. 30, 2010, reinstated an asbestos-related fraud
case filed by CSX Transportation against Peirce Raimond & Coulter,
a Pittsburgh-based law firm, LegalNewsline.com reports.
In the Dec. 30, 2010 opinion, the Fourth Circuit overturned the
order dismissing CSX's claims. A district judge ruled CSX had
missed the statute of limitations when it filed the lawsuit, which
alleges Peirce conspired with a radiologist to fabricate asbestos
claims.
CSX's complaint said Peirce hid nine fraudulent claims among other
lawsuits filed by the law firm in West Virginia. The complaint
noted that radiologist Ray Harron, who was found by a Texas
federal judge in 2005 to have created fraudulent silica claims,
lost his license in 2007. Many of the Peirce firm's diagnoses
were made by Mr. Harron.
The nine lawsuits were filed and settled from 2000 to 2006. U.S.
District Judge Frederick Stamp ruled the four-year statute began
when the Peirce firm began targeting CSX. CSX pointed at a U.S.
Supreme Court decision in a lawsuit involving Merck & Co.
Allegations arising out of Peirce's representation of Earl Baylor
were found to have been timely made. One of the lawsuits CSX
tried to include in its second amended complaint was filed with
the Baylor claim.
The Fourth Circuit also ruled Judge Stamp should have allowed CSX
to amend its complaint to include 11 other asbestos lawsuits.
CSX notified the Fourth Circuit in July 2010 of the dismissal of
1,400 asbestos lawsuits by a West Virginia judge who had
implemented new rules requiring plaintiffs to certify they were
aware of their lawsuits, that their claims were "well-founded in
fact" and that they wished to continue pursuing litigation.
All the dismissed cases alleged asbestos disease but not
malignancy. The Peirce firm continues to pursue 62 malignancy
claims in Recht's court and claims the dismissal of the 1,400
claims had nothing to do with the fraud lawsuit.
ASBESTOS UPDATE: OSHA Probing Alleged Breach at Las Vegas Hotel
---------------------------------------------------------------
The U.S. Occupational Safety and Health Administration is
investigating whether Nevada OSHA understated the extent of
asbestos contamination at the Flamingo Las Vegas hotel and casino,
Mesothelioma.com reports.
The hotel is a property belonging to Caesars Entertainment,
formerly known as Harrah's Entertainment. It is believed that
this was done to minimize the corporate owner's potential legal
liability.
The review was commenced after U.S. Rep. Walt Minnick, D-Idaho,
received written notice from Chuck Gillenwater, a casino
carpenter, asking for help after state officials rejected his
complaint the regarding the inadequacy of 2007 state
investigation.
Mr. Gillenwater believes that Nevada OSHA played down the extent
of the asbestos contamination, even though it was in violation of
safety regulations.
In 2006, Harrah's Las Vegas, a sister property, completed
remodeling that entailed similar violations, yet Nevada OSHA did
not classify the Flamingo exposures as repeat violations, which
increases the fine.
Mr. Gillenwater also alleges that casino workers spread asbestos
fibers outside of the Flamingo's containment zones while hauling
demolition debris to dumpsters. This means that not only were
casino workers exposed, but so were patrons.
ASBESTOS UPDATE: Lee County May Pay for Posen's Asbestos Dumping
----------------------------------------------------------------
Lee County, Fla., may have to pay the bill for the land owned by
Charles and Virginia Huether, which was used by Posen Construction
as an asbestos dumping site, Mesothelioma.com reports.
Lee County will try to recover the money from Posen later.
The construction of Three Oaks Parkway in Fort Myers, Fla., has
damaged 77 acres of private land, causing its value to drop.
Posen used the land as a staging ground for work on the adjacent
road a drainage site and an asbestos dump. All of this was done
without permission from the Huethers or any type of local permits.
The asbestos contamination is particularly troublesome, as this
now creates an environmental hazard. The Huethers say the land
bought in 2005 for US$10.3 million is now unsellable.
The Huethers are demanding US$8 million. The County agrees that
Posen's actions were illegal, but it also says the blame and
liability rest with Posen.
The Huethers disagree, saying that county employees knew what
Posen was doing but failed to stop the actions and, therefore,
hold the blame.
ASBESTOS UPDATE: Gorleston Man's Death Linked to Hazard Exposure
----------------------------------------------------------------
An inquest at Norwich, England, heard that the death of Barry
Harris, a former insulation worker from Gorleston, England, was
related to workplace exposure to asbestos, EDP24 reports.
Born in London, Mr. Harris died on Dec. 21, 2010 at the age of 59
at the James Paget Hospital in Gorleston. He worked in the
insulation industry.
Mr. Harris was diagnosed with asbestos-related pleural thickening
in 1983 and he died of chronic obstructive pulmonary disease
contributed to by being exposed to asbestos.
Greater Norfolk Coroner William Armstrong said, "He had a history
of being exposed to asbestos during his working life. Sadly he
did not respond to treatment."
ASBESTOS UPDATE: Over 2T Kg of Hazard Cleared From Hastings Pier
----------------------------------------------------------------
Over 2,000 kilograms of asbestos has been removed from the pier in
Hastings, East Sussex, England, the Hastings & St. Leonards
Observer reports.
The news was revealed at a Hastings Borough Council meeting last
Dec. 22, 2010 by Councilor Peter Chowney, the lead councilor for
regeneration and planning. It has also cost the Borough Council
around GBP30,000 to hire security staff to prevent people going
near the structure.
Councilor Chowney said, "In total 2,330 kg of asbestos and
asbestos contaminated material has been removed from the parade
extension and beach below.
"This has been taken away in approximately 400 specialist sealed
sacks to the contractors' waste transfer yard in Brighton and from
there to a specialist licensed tip in Bedfordshire."
Councilor Chowney said air samples were taken in the surrounding
area following fears that hundreds of spectators and members of
the emergency services were exposed to asbestos. He said results
showed that there were no harmful levels in the air.
Almost 90% of the pier was destroyed during the blaze on Oct. 5,
2010. Since then, the Council has spent GBP250,000 to make the
pier safe amid fears that the structure may collapse.
Best Demolition, the firm contracted to make the pier safe in the
short-term, has removed almost all the buildings on the top of the
pier, including the once-popular bingo hall, and promenade of
boutique shops.
Hastings Pier and White Rock Trust is trying to raise money to
keep the structure safe through the winter months. It hopes to
reopen it in 2013 providing it can secure millions of pounds of
funding.
ASBESTOS UPDATE: Hazard Use Officially Banned in Turkey Dec. 31
---------------------------------------------------------------
In a statement released by Turkey's Environment Management
Directorate-General, all uses of asbestos were officially banned
on Dec. 31, 2010, Asbestos.com reports.
Although asbestos was already partially banned, the move to
completely ban asbestos has enabled Turkey to fully abide by
European Union regulations.
Turkey's new regulation will ban the use of asbestos in production
of any goods and supply of products containing asbestos.
The statement said, "The ban on use of asbestos will both
eliminate diseases stemming from the substance and end emission of
asbestos to the environment."
The EU has banned all use of asbestos and extraction, manufacture
and processing of asbestos products.
ASBESTOS UPDATE: NBN Affirms Allocation of Funding for Abatement
----------------------------------------------------------------
The Australian Financial Review stated the Australian federal
government has factored the costs of asbestos removal into the
AUD37.5 billion rollout of the NBN broadband network, the Business
Spectator reports.
Following questions from Communications Minister Stephen Conroy,
an NBN spokeswoman said the Company was aware that "a proportion"
of Telstra Corporation Ltd.'s infrastructure installed before 1986
is "asbestos-containing material," the AFR reports.
The spokeswoman added, "The costs of asbestos management have been
factored into our business case." However, a lack of records kept
by Telstra on the past use of asbestos mean the NBN Co will have
to identify and label asbestos-containing cements before removing
them, the paper reports.
ASBESTOS UPDATE: Palo Pinto Grand Jury Passes on Dempsey Action
---------------------------------------------------------------
A Palo Pinto County grand jury returned a "no bill" regarding an
incident involving commissioners moving public records, without
court authorization, to the county-owned Dempsey education
building, known to have asbestos, Minerals Wells Index report.
At the Dec. 23 Palo Pinto County Commissioners Court meeting when
outgoing members, Precinct 2 Commissioner Ed Laney and County
Judge Mike Smiddy, shared their concern after Precinct 3
Commissioner Mike Pierce reportedly coordinated moving county and
district court records from the Precinct 2 barn to the Dempsey
building in the weeks prior to the meeting.
The Dempsey building contains asbestos in the areas where the
records were stored based on a 2009 survey. Both Mr. Laney and
Mr. Smiddy said this action could have exposed individuals
involved in the moving process to asbestos, which could have
become airborne when swept and was reportedly removed without a
certified asbestos professional.
Mr. Laney suggested the case be investigated and noted a
commissioners' court cannot investigate itself.
With commissioners Mike Pierce (Precinct 3), Beth Ray (Precinct 1)
and Jeff Fryer (Precinct 4) abstaining, Mr. Laney and Mr. Smiddy
passed a vote to hand the investigation over to Sheriff Ira Mercer
who, in turn, handed the issue to District Attorney Mike Burns.
Mr. Burns brought the issue before the grand jury. By returning a
no bill, which means the grand jury does not believe it has
sufficient evidence to justify prosecution.
ASBESTOS UPDATE: N.Y. Court Issues Ruling in Great American Case
----------------------------------------------------------------
The Supreme Court, Appellate Division, Second Department, New
York, issued a ruling in a case involving asbestos styled Great
American Restoration Services, Inc., respondent v. Scottsdale
Insurance Company, appellant.
Judges Reinaldo E. Rivera, Daniel D. Angiolillo, Cheryl E.
Chambers, and Leonard B. Austin entered judgment in the case on
Nov. 9, 2010.
In an action for a judgment declaring that Scottsdale Insurance
Company was obligated to defend and indemnify Great American
Restoration Services, Inc. in an underlying action entitled Church
Mutual Insurance Company, as subrogee of East Nassau Hebrew
Congregation v. Great American Restoration Services, Inc., pending
in the Supreme Court, Nassau County, under Index No. 9921/08,
Scottsdale appealed from so much of an order of the Supreme Court,
Nassau County, entered Oct. 6, 2009, as denied its motion for
summary judgment without prejudice.
In January 2005, Great American was retained to perform "emergency
water damage service" at a facility owned by East Nassau Hebrew
Congregation. In January 2008, Church Mutual Insurance Company,
as subrogee of East Nassau, commenced an action against Great
American (hereinafter the underlying action), alleging that it was
injured as a result of certain property damage caused by Great
American during the performance of the contract.
The complaint against Great American alleged that Great American
held itself out as "possessing staff" trained in water damage
cleaning and asbestos removal and that Great American, during its
work, caused asbestos to be "dispersed throughout the building and
premises." Great American denied ever holding itself out as a
company that performs asbestos removal or disposal and contends
that it immediately ceased all work at the facility when it was
informed that asbestos had been found in the past.
Great American, which was insured under a commercial general
liability policy issued by Scottsdale, submitted the lawsuit to
Scottsdale, seeking defense and indemnification. Scottsdale
disclaimed coverage based upon the asbestos exclusion clause in
the policy or based on the policy's pollution exclusion clause.
Scottsdale moved for summary judgment in the declaratory judgment
action and Great American cross-moved for summary judgment. The
Supreme Court denied the motion and the cross motion without
prejudice, concluding that triable issues of fact existed,
including whether Great American had knowledge of the presence of
asbestos and what acts were undertaken by Great American.
Accordingly, the Supreme Court granted that branch of Great
American's cross motion, which was for summary judgment declaring
that Scottsdale was obligated to defend it in the underlying
action.
Since the complaint set forth a cause of action for declaratory
relief, the Supreme Court remitted the matter to the Supreme
Court, Nassau County, for the entry of a judgment declaring that
Scottsdale is obligated to defend Great American in the underlying
action under the subject commercial general liability insurance
policy.
Milber Makris Plousadis & Seiden, LLP, Woodbury, N.Y. (Lorin A.
Donnelly Esq., and Sarah M. Ziolkowski, Esq.), represented
appellant.
Adolph D. Seltzer, Esq., in New York, represented respondent.
ASBESTOS UPDATE: Appeal Court Affirms Ruling in Stewart Lawsuit
---------------------------------------------------------------
The Court of Appeal, Second District, Division 5, California,
affirmed the ruling of the Superior Court of Los Angeles, which
entered judgment against Union Carbide Corporation in an asbestos
action filed by Larry and Janet Stewart.
The case is styled Larry R. Stewart et al., Plaintiffs and
Respondents v. Union Carbide Corporation, Defendant and Appellant.
Judges Orville A. Armstrong, Paul Turner, and Richard M. Mosk
entered judgment in Case No. No. B216193 on Nov. 16, 2010.
Mr. Stewart worked as a plumber, or plumber's apprentice, from
1968 until his diagnosis with mesothelioma in 2007. After his
diagnosis, he sued Union Carbide (and others, who settled prior to
trial) for fraud, negligence, and strict products liability on
failure to warn and design defect theories. Mrs. Stewart sued for
loss of consortium. Plaintiffs sought punitive damages.
At trial, Mr. Stewart testified that throughout his career, he
worked on large commercial and residential construction projects.
He worked near drywallers on "just about every job." He testified
that on most of the jobs he worked on, the drywallers used joint
compound manufactured by a company called Hamilton Materials,
though USG joint compound was used some instances.
The Stewarts presented evidence that USG and Hamilton Materials
obtained asbestos from Union Carbide, which mined chrysotile
asbestos in Coalinga, Calif., and sold that asbestos under the
brand name Calidria.
At the close of evidence, the trial court directed a verdict for
Union Carbide on the cause of action for fraud. The case went to
the jury on causes of action for negligence and strict products
liability on both failure to warn and design defect/consumer
expectations theories.
The jury found for plaintiffs on all those causes of action. The
jury was asked to allocate fault between a large number of
entities, described in the briefs as suppliers of asbestos-
containing materials, and found that Union Carbide accounted for
85% of the fault, and Hamilton Materials for 15%.
The jury awarded Mr. Stewart US$2.2 million for past and future
economic damages, and US$500,000 for past and future non-economic
damages, and awarded Janet Stewart past non-economic damages of
US$250,000 and future non-economic damages of US$250,000. For
purposes of punitive damages, the jury also found that Union
Carbide had acted with malice, oppression, or fraud. After a
trial on punitive damages, the jury awarded US$6 million in
punitive damages.
After applying US$1,782,375 in credits based on the pre-verdict
settlements with other defendants and making appropriate
calculations based on Union Carbide's 85% share of fault, the
court entered judgment in favor of Mr. Stewart in the amounts of
US$417,625 in economic damages and US$425,000 in non-economic
damages and US$6 million in punitive damages, and in favor of Mrs.
Stewart in the amount of US$425,000 in non-economic damages.
Union Carbide's post-trial motions for judgment notwithstanding
the verdict and for a new trial were denied.
Horvitz & Levy (David M. Axelrad, Esq., Mary-Christine Sungaila,
Esq., Daniel J. Gonzalez, Esq.); Linder Grode Stein Yankelevitz
Sunshine Regenstreif & Taylor (Kevin C. Mayer, Esq., Raul Perez,
Esq., John M. Kennedy, Esq.); Orrick, Herrington & Sutcliffe
(Morton D. Dubin, II, Esq.) represented Union Carbide Corporation.
Paul & Hanley, Esq., Dean A. Hanley, Esq., Kelly A. McMeekin,
Esq., Anthony Vieira, Esq., and Simona A. Farrise, Esq.,
represented the Stewarts.
ASBESTOS UPDATE: N.Y. Appeal Court Issues Ruling in Nostrom Case
----------------------------------------------------------------
The Court of Appeals of New York issued a ruling in a case
involving asbestos styled Judith Nostrom, & c., Appellant v. A.W.
Chesterton Company, et al., Defendants, Central Hudson Gas &
Electric Corporation, et al., Respondents.
Judges Victoria Graffeo, Carmen Beauchamp Ciparick, Robert S.
Smith, Eugene Pigott and Theodore Jones entered judgment in Case
No. 187 on Nov. 18, 2010.
The issue before the Court was whether vicarious liability under
Labor Law s 241(6) may be predicated solely on a violation of
regulations contained in part 12 of the Industrial Code. The
Court concluded that it may not.
During the 1970s and 1980s, Donald Nostrom worked as a boilermaker
for subcontractors on construction projects at various energy
facilities, including those owned by defendants Orange & Rockland
Utilities, Inc. (O & R) and Central Hudson Gas & Electric Corp.
According to Mr. Nostrom, Sequoia Ventures (f/k/a Bechtel
Corporation) served as the general contractor for two of the
projects. While working at these power plants, Mr. Nostrom was
allegedly exposed to asbestos through airborne dust and contact
with asbestos-containing materials. He subsequently contracted
mesothelioma.
Mr. Nostrom and his wife, suing derivatively, commenced this
action against more than 60 defendants, including O & R, Central
Hudson and Sequoia. As relevant here, Mr. Nostrom asserted a
Labor Law s 200 claim against Central Hudson and a violation of
Labor Law s 241(6) against each of the three defendants involved
in this appeal. After discovery, defendants separately moved for
summary judgment dismissing the complaint.
Supreme Court granted the motions and dismissed the complaint
insofar as asserted against defendants. Ms. Nostrom appealed the
dismissal of the Labor Law s 241(6) cause of action and the
Appellate Division affirmed, reasoning that a violation of
regulations from part 12 of the Industrial Code cannot sustain a
section 241(6) claim.
Alternatively, the Appellate Division concluded that the two
regulations invoked by Mrs. Nostrom were not "sufficiently
specific to support a section 241(6) claim for asbestos-related
injury." The Appeals Court granted Mrs. Nostrom leave to appeal.
Accordingly, the order of the Appellate Division, insofar as
appealed from, should be affirmed, with costs. Order, insofar as
appealed from, affirmed, with costs.
Alani Golanski, Esq., represented appellant.
William G. Ballaine, Esq., represented Sequoia Ventures, Inc.
Guy Miller Struve, Esq., represented Orange & Rockland Utilities,
Inc.
Joseph B. Koczko, Esq., represented Central Hudson Gas & Electric
Corp.
ASBESTOS UPDATE: Md. Appeals Court Issues Ruling in Reiter Case
---------------------------------------------------------------
The Court of Appeals of Maryland issued a ruling in a case
involving asbestos styled Catherine L. Reiter, et al. v. Pneumo
Abex, LLC, et al.
Chief Judge Robert Bell, Glenn Harrell, Lynne Battaglia, Clayton
Greene, Joseph Murphy, Lawrence F. Rodowsky, and Alan M. Wilner
entered judgment in Case No. No. 72, Sept. Term, 2008 on Nov. 19,
2010.
The Petitioners in the case at bar are the widows of steelworkers
who were employed by the Bethlehem Steel Corporation at its
Sparrows Point facility, and the Respondents are corporations that
supplied products containing asbestos to the facility.
In the Circuit Court for Baltimore City, Petitioners filed
complaints in which they asserted that their husbands died from
lung cancer caused by exposure to the asbestos contained in the
products supplied by the Respondents.
The Petitioners' cases were among the cases "consolidated" into
two groups: (1) the "Adams" Group, which included decedents
William A. Reiter and Harold R. Williams; and (2) the "Conyers"
Group, which included decedent William H. Johnson. At the
conclusion of a two day motions hearing, the Circuit Court granted
Respondents' motions for summary judgment, and entered judgment
against each of the Petitioners.
Petitioner Charlotte J. Johnson is the Personal Representative of
the Estate of William H. Johnson; Petitioner Catherine L. Reiter
is the Personal Representative of the Estate of William A. Reiter;
and Petitioner Arlene Williams is the Personal Representative of
the Estate of Harold R. Williams.
The Respondents are Eaton Corporation (successor in interest to
Cutler-Hammer, Inc.), Pneumo Abex LLC, and Square D Company. Abex
manufactured and sold asbestos-containing automotive friction
products including brake lining and pads under different trade
names from about 1927-1987.
Abex brake linings were used in the brake assembly systems
manufactured by Westinghouse as well as Square D. Cutler-Hammer
manufactured and sold certain products that contained asbestos
components from about 1920-1984. Square D also manufactured and
sold crane braking equipment from 1955-2004. Prior to the mid-
1980s, some of their braking equipment components contained some
quantity of encapsulated asbestos.
Petitioners noted an appeal to the Court of Special Appeals, and
that court affirmed the judgment of the Circuit Court.
Petitioners then filed a petition for writ of certiorari.
The Court granted the petition. It concluded that Petitioners'
evidence was sufficient to generate a jury issue on the question
of whether (1) each decedent was exposed to asbestos dust at his
workplace, and (2) Respondents manufactured some of the crane
brake products used at the facility.
The Court also concluded, however, that Petitioners' evidence was
insufficient to establish that any of the Respondents' products
were used at the specific site(s) where the Petitioners actually
worked. The Court affirmed the judgment of the Court of Special
Appeals.
ASBESTOS UPDATE: La. Appeal Court Affirms Ruling in Pichon Case
---------------------------------------------------------------
The Court of Appeal of Louisiana, Fourth Circuit, affirmed the
ruling of the Civil District Court, Orleans Parish, which granted
summary judgment in favor Detroit Diesel Corporation [DDC] and the
dismissal with prejudice of all claims against DDC.
The case is styled Jeanette Garnett Pichon, Roland L. Pichon, Mark
P. Pichon, Patrice Pichon Robinson, Tracy Pichon Baham, Veronica
Pichon Joseph, and Cade Pichon Hagger v. Asbestos Defendants, et
al.; Bayer Cropscience, Inc. (as Successor of Liability to Rhone-
Poulenc AG Company f/k/a Amchem Products, Inc. f/k/a Benjamin
Foster Company), Seville, Inc. formerly, Branton Insulations,
Inc); Continental Insurance Company; et al.
Judges Patricia Rivet Murray, Michael E. Kirby, and Roland Belsome
entered judgment in Case No. 2010-CA-0570 on Nov. 17, 2010.
On Nov. 21, 2007, the plaintiffs, the surviving spouse and
children of Leon Roland Pichon, filed a petition against numerous
defendants, including DDC, as the alleged manufacturers,
distributors and/or sellers of various asbestos-containing
products to which Mr. Pichon had been exposed during his
employment by Halter Marine from 1955 through 2004.
The plaintiffs alleged that as a result of his exposure, Mr.
Pichon contracted lung cancer and mesothelioma, which was first
diagnosed in September 2006, and which caused Mr. Pichon's death
on Nov. 25, 2006.
On Nov. 2, 2009, DDC filed a motion for summary judgment seeking
the dismissal of plaintiffs' claims against it on the grounds that
it could not have any liability for damages caused by Mr. Pichon's
exposure to asbestos prior to 1988, the year DDC first came into
existence, nor could it have any liability for his exposure after
that time because DDC has never manufactured any products
containing asbestos.
On Dec. 4, 2009, the trial court denied DDC's motion for summary
judgment because DDC had not yet responded to the plaintiffs'
requests for discovery; the court also ordered DDC to so respond.
Five days after the denial of its motion, DDC submitted its
responses to the plaintiffs' discovery requests and filed a motion
for new trial from the trial court's denial of summary judgment.
The trial court granted the motion for new trial.
On Jan. 4, 2010, the trial court again heard DDC's motion for
summary judgment. At the conclusion of that hearing, the trial
court granted the motion for summary judgment. A written judgment
granting the motion was signed Jan. 19, 2010. From this judgment,
the plaintiffs appealed.
ASBESTOS UPDATE: Madison Cty. Records Show Drop in Case Filings
---------------------------------------------------------------
Records in Madison County, Ill., show a drop in the number of
asbestos cases in 2010 from 2009, The Madison/St. Clair Record
reports.
However, deputy Circuit Clerk Judy Nelson indicated an official
tally will not be available for a couple of weeks.
Preliminary records show that asbestos filings, which have been
steadily increasing in the past few years, decreased in 2010 to
752, down from 814 in 2009.
Class action cases increased slightly from eight in 2009 to nine
in 2010. Medical malpractice claims declined from 26 in 2009 to
15 in 2010.
ASBESTOS UPDATE: Asbestos Problem in Scotland Pool Not "Serious"
----------------------------------------------------------------
It was revealed that the asbestos problem discovered in the Royal
Commonwealth Pool in Edinburgh, Scotland, was not as bad as first
feared, the Edinburgh Evening News reports.
The Evening News revealed last March 2010 that the discovery and
removal of asbestos had delayed the massive revamp of the pool,
with council officials admitting that they did not know what the
impact would be on costs and timescales.
It since emerged that the work had put the revamp 13 weeks behind
schedule but that the cost remained unknown. In a recent report
to councilors, council officials said that "the asbestos problem
did not prove as serious as first thought."
Initial estimates indicated the revamp would be finished by the
end of June 2011 and cost GBP37 million.
ASBESTOS UPDATE: Combe's Widow Awarded GBP74T in Asbestos Payout
----------------------------------------------------------------
The widow of George Combe, Marjorie Combe, was awarded GBP74,000
in compensation following her late husband's exposure to asbestos
while working as an apprentice turner at an engineering firm, the
Sunderland Echo reports.
Mr. Combe died at the age of 69, four months after doctors told
him he had developed mesothelioma. Prior to his death, Mr. Combe
turned to industrial illness specialists at Irwin Mitchell to help
secure compensation from his former employers.
After his death, the 69-year old Mrs. Combe decided to continue
the fight and on Jan. 6, 2011 said she is relieved to have won for
her husband of 46 years.
Mr. Combe worked at John Brown Engineering, on the River Clyde,
from 1956 to 1961. He died in 2009 in St Clare's Hospice in
Jarrow, England.
Roger Maddocks, partner at Irwin Mitchell, worked with Mrs. Combe
to ensure she has access to the financial security she needs to
have as a comfortable future as possible after her husband's
death.
ASBESTOS UPDATE: Madison Building to Get $200,000 Cleanup Grant
---------------------------------------------------------------
Ohio state officials announced on Jan. 3, 2011, that the Toledo,
Ohio-owned Madison Building at Madison and Huron is one of three
historic buildings that will receive US$200,000 each to help pay
for asbestos removal, the Toledo Blade reports.
Also known as the Nasby Building, the structure at 607 Madison
Ave., was one of the first skyscrapers west of the Allegheny
Mountains when it was constructed in 1925. Once known as the
Security Building, it was nine full stories, with two partial
floors topped by a steeple-like tower. In 200, Toledo acquired
the landmark through a tax foreclosure.
The City said its cleanup will allow the site near the Huntington
Arena to be redeveloped by potential investors. The money is from
the state's Brownfield Revolving Loan Fund, part of US$1.8 million
in American Recovery and Reinvestment Act funds.
The Brownfield fund, administered by the Ohio Department of
Development's Urban Development Division, offers below-market rate
loans and grants to assist to help cities return the sites to a
productive economic use.
ASBESTOS UPDATE: Neosho to Review Cleanup Bids for Two Buildings
----------------------------------------------------------------
Asbestos removal bids for the former First Baptist church and a
structure on the corner of Spring and Lafayette streets are to be
reviewed by the City Council in Neosho, Mo., in early January
2011, Mesothelioma.com reports.
In preparation for the demolition of the two city-owned buildings,
contractors have toured the sites to make their asbestos abatement
bids.
The demolition and asbestos work of both Neosho buildings will not
be funded local tax dollars, but rather with a loan for which the
Missouri Development Finance Board has offered state tax credits.
Craig Jones, director of development services for Neosho, said,
"These are dollars that are coming to the city specifically for
these projects. It isn't money we can use to fix streets and hire
firefighters and police."
Disagreements within the city set back work on the projects, but
the assessment of both buildings to determine the amount of
asbestos and where it is located is a promising start.
Asbestos must be abated before demolition can begin.
ASBESTOS UPDATE: Conn. Board Rules on Cleanup at Litchfield Hall
----------------------------------------------------------------
The Board of Selectmen for the Town of Fairfield, Conn., on
Jan. 3, 2011, decided on a resolution to bond an extra US$425,000
for a project involving asbestos abatement at Litchfield Hall,
NewtownPatch reports.
The Board of Selectmen delayed voting on a resolution to bond the
US$425,000 for the project until after the holidays to hear what
the public had to say only to find a small group of residents
assembled for the Jan. 3, 2011 meeting, with the only public
opposition to the resolution coming from a selectman.
At issue was whether the selectmen should cast the final decision
or a Town Meeting be held to decide if the town should seek
additional bonds to remove asbestos at Litchfield Hall and finish
demolition work already begun there. At a Town Meeting, voters
would be invited to attend and cast a ballot on the matter.
In this case, the town had agreed to bond US$1 million to demolish
Litchfield and Yale halls years earlier and to start design work
of a community center that was to be built in their places. But
then workers in the midst of demolition discovered the window
lintels in the building contained asbestos and would require more
money, US$425,000, for abatement and other activities associated
with the project.
The Town Charter requires appropriations of US$500,000 or more to
go to a Town Meeting, although this request falls slightly short
of that.
Several town officials, including the majority of the Legislative
Council, First Selectman Pat Llodra and some members of the Board
of Finance, have said given the project's location at Fairfield
Hills, they would be in favor of sending the resolution to a Town
Meeting if the Town Charter allowed it.
While some town officials initially said the charter did allow it,
Ms. Llodra said that upon further research, Town Attorney David
Grogins told her during a telephone conversation that he did not
believe sending the resolution to a Town Meeting was legal, though
he did not render a written opinion on the matter.
Selectman Bill Furrier, who has a master's degree in chemical
engineering, had asked for the written opinion and said he
believed in his reading of the charter that it was allowable under
the provisions for a special or emergency appropriation.
Mr. Furrier then said an alternative would be to increase the
appropriation to US$500,000 in order to meet the legal threshold,
a suggestion Ms. Llodra said she had also received "from the same
source," but dismissed.
Selectman Will Rodgers said he would be willing to increase the
appropriation if he believed the town had an option in abating the
asbestos. Ms. Llodra also said if the project was for any other
building in town outside of Fairfield Hills there would be no
controversy, a reaction she said she would like to dispel.
Mr. Furrier argued the project was different than any others in
town because of its association. Ms. Llodra and Mr. Rodgers
concluded by saying they had a responsibility to complete the
demolition of Litchfield Hall, which sits partially razed behind a
metal fence on the campus.
Ms. Llodra and Mr. Rodgers approved the additional appropriation
with Furrier casting the dissenting vote.
ASBESTOS UPDATE: EHS Issues New Study on Mesothelioma on Jan. 6
---------------------------------------------------------------
In a Jan. 6, 2011 online press release by the peer-reviewed
journal Environmental Health Perspectives, for every four to five
reported cases of mesothelioma worldwide, at least one case goes
unreported.
This study is the first to provide a global estimate of unreported
mesothelioma cases based on the collective experience of countries
with available data on asbestos use and the disease.
The authors assessed the relationship between country-level
asbestos use from 1920 through 1970 and mesothelioma deaths
reported between 1994 and 2008. Cumulative asbestos use in 89
countries, which accounted for more than 82% of the global
population in the year 2000, totaled more than 65 million metric
tons during 1920-1970.
The United States, Russia, United Kingdom, Germany, and Japan led
the group in asbestos use, defined as production plus import minus
export. For the 56 countries also reporting mesothelioma data,
there were about 174,300 such deaths during 1994-2008.
Study co-author Ken Takahashi, of the University of Occupational
and Environmental Health in Japan, said, "Our most important
finding is the magnitude of unreported mesothelioma in countries
that use asbestos at substantial levels but report no cases of the
disease." Such countries include Russia, Kazakhstan, China, and
India, which rank in the top 15 countries for cumulative asbestos
use.
Mr. Takahashi says any country that uses asbestos is certain to
have cases of mesothelioma. He notes the study's estimates may be
conservative because both asbestos use and mesothelioma may be
underreported in the countries used as the basis for their
estimates.
The authors propose that every country ban the mining, use, and
export of asbestos because, Mr. Takahashi says, mesothelioma can
be prevented by eliminating exposure to asbestos. They also
propose that developed countries share experience and technology
to help developing countries better diagnose, report, and manage
mesothelioma cases.
The article will be available Jan. 6, 2011 free of charge
at http://ehponline.org/article/info:doi/10.1289/ehp.1002845
ASBESTOS UPDATE: Clarksville to Pay $77T on Ratchford Demolition
----------------------------------------------------------------
The Tennessee Department of Environment Conservation's Division of
Air Pollution Control order the city of Clarksville, Tenn., to pay
the state US$77,000 for its handling of the Ratchford Apartments
demolition in 2010, The Leaf Chronicle reports.
Randall Harrison, a department official, notified then-Mayor
Johnny Piper in a letter dated April 30, 2010 that the city
violated four state air pollution regulations regarding the
handling of asbestos, and two others related to water disposal
during the demolition. In October 2010, the division sent Mr.
Piper another letter, with the fine enclosed.
The city's Building and Codes Department demolished the abandoned
apartments in mid-April 2010, citing public safety concerns. The
Clarksville Police Department had filed 27 incident reports in the
area since 2007, many of them assaults, according to statistics
provided by spokesman Officer Jim Knoll.
The city has appealed the fine, but its case is still under
review.
ASBESTOS UPDATE: Abatement at Wilton Primary Could Cost $125,000
----------------------------------------------------------------
One estimate for the cost of asbestos removal for the former
Wilton Primary School in Wilton, Maine, came in at US$125,000, the
Sun Journal reports.
Selectmen decided to research three options for the former Wilton
Primary School and present them to town voters. After deciding
with what to do with the school for about four years, costs
associated with asbestos removal, demolition or development, the
issue left the board and the town with no easy answers.
Town Manager Rhonda Irish was charged with gathering more
information on three options including soliciting bids for
asbestos removal, demolition, and inquiring whether developers
would be interested if the asbestos was removed.
Ms. Irish also seeks information on applying for a Community
Development Block Grant to help with removing asbestos. The grant
would require a 20% match from the town and the building would
need to be used for business or economic development purposes, she
told the board.
Inherited from RSU 9, the board has tried selling the former
school building and half acre property on School Street, and met
with developers on creating elderly housing or an alternative
school. Selectmen also gave a group of surrounding neighbors, The
Neighborhood Association, six months to research and present a
prospective plan.
Tiffany Maiuri representing the neighborhood group told the board
they were unable to find a resolution. The group considered using
it for a recreation center, a new combined town office/police
station, daycare or even tearing it down, but there's no great
option, she said.
Three housing developers, who talked with the group, estimated the
cost of adapting the building for housing would be more than
US$400,000, even if the town sold the building for US$1 as the
town previously considered with one plan, Ms. Maiuri said.
Costs for auctioning the building are the same as before, Ms.
Irish told the board. There would be no cost to the town if the
building sells, or US$2,500 if it does not. The board was
concerned about someone purchasing it then struggling with
asbestos and renovation only to have it end up back on the town's
plate.
Demolition costs, based on previous quotes, could tally up to
US$200,000 for the town, Selectman Irv Faunce said.
The board then considered whether spending the US$125,000 for
asbestos abatement could result in more developers being
interested in the property while agreeing that amount sounded
better than a potential US$200,000 for demolition.
Mr. Faunce questioned spending the money for asbestos removal and
then having no developer. He suggested that the options be put
together and presented to the town.
ASBESTOS UPDATE: Asbestos to be Removed From Somersworth School
---------------------------------------------------------------
Among the large projects the School District in Somersworth, N.H.,
will likely have to budget for in the upcoming fiscal year are
complete overhauls to sections of asbestos tiling in the middle
and high schools, as well as replace the high school's ventilation
ductwork, the Dover Region reports.
The projects, which District Maintenance Supervisor Andy Lucier
said would have to be completed in the summer of 2011 to prevent
school closures next year, were among several items discussed
during the latest School Board fiscal year 2012 budget workshop on
Jan. 4, 2011.
Mr. Lucier said the various projects would likely have to be
budgeted in the upcoming fiscal year because the tiles are
lifting, which will expose the asbestos, and the ductwork is
failing. He said last Jan. 4, 2011 he expected both areas to pose
problems next year if not corrected soon.
ASBESTOS UPDATE: Lanier Firm Leads National Asbestos Conference
---------------------------------------------------------------
Trial attorney Richard Meadow, Esq., who heads the New York office
of The Lanier Law Firm, is serving as Co-Chair of an upcoming
national conference on asbestos litigation, citybizlist Houston
reports.
Lanier is one of the lead sponsors for "Trying an Asbestos Case -
How to Get the 'W'," an informative program for the nation's top
asbestos attorneys taking place on Jan 25, 2011, at the Hub Cira
Centre in Philadelphia. The conference includes presentations and
panel discussions featuring dozens of the country's leading
practitioners in asbestos law.
The Lanier Law Firm founder Mark Lanier, Esq., will headline a
panel discussion on opening statements, including insights from
three sitting judges on strategies for compelling openings, common
mistakes to avoid and paths to take for certain kinds of cases.
Dr. Robert E. Leone, Esq., an accomplished attorney and in-house
trial psychologist at The Lanier Law Firm, will participate in a
panel discussion on "Preparing the Plaintiff and Defendant for
Deposition and Trial."
ASBESTOS UPDATE: Court Issues Split Ruling in RLC Envt'l. Action
----------------------------------------------------------------
The U.S. District Court, Eastern District of Louisiana, issued
split rulings in a case involving asbestos styled RLC
Environmental Consultants, Ltd v. JNE Enterprises, Inc. et al.
District Judge Helen G. Berrigan entered judgment in Civil Action
No. 10-1443 on Nov. 8, 2010.
RLC Environmental Consultants, Ltd is a licensed asbestos removal
contractor. JNE Enterprises, Inc. is a contractor who entered
into a subcontract with RLC for the provision of asbestos
abatement work on properties damaged by Hurricane Katrina.
American Contractors Indemnity Company, issued payment bonds that
guaranteed payment of all amounts owed by JNE to its
subcontractors. RLC alleged that it provided all of the work it
contracted to perform for JNE and submitted invoices for that work
totaling US$256.145.35. RLC further submitted that it has only
been paid US$178,486.55 despite submitting a demand letter that
requested the full amount owed.
RLC acknowledged that JNE was entitled to a credit of US$2,450.81
for equipment rental. As a result of JNE's failure to pay the
outstanding balance of RLC's invoices, RLC had brought the present
action to compel payment of the outstanding US$75,207.99. In
addition, RLC sought an award for its attorneys' fees.
It was ordered that Plaintiff's Motion for Partial Summary
Judgment was granted. It was further ordered that Plaintiff's
Motion to Strike was denied.
Leo David Congeni, Esq., of Leo D. Congeni & Associates, LLC in
New Orleans, La., represented RLC Environmental Consultants, Ltd.
Sharon Kaye Hunter, Esq., Sharon K. Hunter, Esq., of New Orleans,
La., represented JNE Enterprises, Inc. and other defendants.
ASBESTOS UPDATE: Dist. Court Overrules Objections in Larson Case
----------------------------------------------------------------
The U.S. District Court, Eastern District of Pennsylvania,
overruled various objections in a case involving asbestos styled
Dianna K. Larson, et al., Plaintiffs v. Bondex International, et
al., Defendants., which is part of In re Asbestos Products
Liability Litigation (No. VI).
U.S. District Judge Eduardo C. Robreno entered judgment in Case
No. 09-69123 on Nov. 15, 2010.
Before the Court was Georgia Pacific, LLC's Objections to
Magistrate Judge Angell's Memorandum Opinion on Defendant's Motion
to Exclude Plaintiffs' Experts' Testimony. Also before the Court
was Plaintiffs' Objections to Magistrate Judge Angell's Memorandum
Opinion regarding Plaintiffs' Motion in Limine. Judge Angell
denied the parties' motions in limine.
Dianna Larson was diagnosed with mesothelioma in 2006. Plaintiffs
alleged that the mesothelioma was the result of exposure to
asbestos in joint compound products which Mrs. Larson used in the
1970s when she and her first husband built two homes in Utah.
Named Defendants were alleged to have manufactured, sold or
distributed chrysotile-containing joint compound products.
After an initial voluntary dismissal of the action, the case was
re-filed in the Third Judicial District Court, Salt Lake County,
Utah, and removed to the U.S. District Court for the District of
Utah in 2008. The case was transferred to the Eastern District of
Pennsylvania as part of MDL 875 In Re: Asbestos in June 2008.
Mrs. Larson alleged that she was exposed to Defendant's asbestos-
containing joint compound products during the construction of two
homes, which she and her first husband conducted with virtually no
outside assistance.
Mrs. Larson alleged that she was exposed when she sanded down
Defendant's asbestos-containing products, used asbestos-containing
sheetrock for the walls and ceilings, cleaned up the sites where
Defendant's products were used, and cleaned the clothes worn by
her and her husband, which contained asbestos dust.
Both Plaintiffs and Defendants have filed motions to exclude each
other's expert testimony regarding the cause of Mrs. Larson's
injuries.
Georgia Pacific, LLC's Objections to Magistrate Judge Angell's
Order Denying Motion to Exclude Plaintiffs' Experts' Testimony
were overruled. Plaintiffs' Objections to Judge Angell's Order
Denying Defendants' Experts' Testimony were overruled.
ASBESTOS UPDATE: Ky. Court Affirms Motion to Remand in Bush Case
----------------------------------------------------------------
The U.S. District Court, Western District of Kentucky, affirmed
the motion for remand filed by Robert T. Bush in an asbestos-
related lawsuit filed against Eaton Corporation and other
defendants.
The case is styled Robert T. Bush, as Executor of the Estate of
Oretha M. Bush, Plaintiff v. Eaton Corporation, et al.,
Defendants.
Judge Thomas B. Russell entered judgment in Case No. 1:10-CV-138
on Nov. 12, 2010.
On March 15, 2010, Oretha Mae Bush filed a complaint in Warren
Circuit Court seeking damages for pain and suffering, mental
anguish, medical expenses and punitive damages. She alleged
claims of negligence and strict liability against all Defendants
for exposing her to asbestos fibers and causing her to develop
mesothelioma.
The parties engaged in extensive discovery in state court in the
form of interrogatories and numerous depositions. Mrs. Bush filed
several motions to compel in state court. A hearing on these
discovery motions and a summary judgment motion filed by
Defendants was scheduled to occur on Sept. 3, 2010 in Warren
Circuit Court.
Cytec Industries, Inc./Cytec Engineered Materials Inc., General
Electric Company, Whittaker, Clark & Daniels, Inc., and Union
Carbide Corporation (Removing Defendants) removed the case to this
Court on Sept. 2, 2010.
Removing Defendants argued that James Ray Kinsner had been
fraudulently joined to Mrs. Bush's lawsuit, and Removing
Defendants filed their Notice of Removal within 30 days of
learning this information. Without Mr. Kinsner as a party,
diversity jurisdiction exists. Mrs. Bush filed a motion to remand
on Sept. 9, 2010.
Mrs. Bush passed away on Sept. 19, 2010. Defendants filed a
Suggestion of Death with this Court on Oct. 4, 2010. Robert T.
Bush was appointed Executor of the Estate on Oct. 11, 2010 and
filed a motion to substitute on Oct. 15, 2010. The Court granted
that motion on Oct. 19, 2010, substituting Robert T. Bush, as
Executor for the Estate of Oretha Mae Bush, as the party Plaintiff
in this action.
The motion to remand is currently pending before the Court.
Robert T. Bush had a colorable claim against Mr. Kinsner. For the
foregoing reasons, it was hereby ordered that Plaintiff's Motion
to Remand was granted. The motion for fees and costs was denied.
Kenneth L. Sales, Esq., Joseph D. Satterley, Esq., Paul J. Kelley,
Esq., of Sales, Tillman, Wallbaum, Catlett & Satterley, PLLC in
Louisville, Ky., Benjamin S. Harralson, Esq., of Smedal &
Harralson in Louisville, Ky., represented Plaintiff.
ASBESTOS UPDATE: Calif. Court Denies Remand Bid in Culver Action
----------------------------------------------------------------
The U.S. District Court, Northern District of California, denied
Timothy Culver's motion to remand an asbestos case styled Timothy
Culver, Plaintiff v. Asbestos Defendants (BP), Defendants.
U.S. District Judge Susan Illston entered judgment in Case No.
C 10-03484 SI on Nov. 12, 2010.
Timothy Culver, heir and successor-in-interest to Robert Culver,
filed this suit for wrongful death as a result of Robert Culver's
exposure to asbestos. Timothy Culver's first amended complaint
named 36 defendants and lists over 25 alleged occurrences of
exposure to asbestos. Timothy Culver claimed that some of these
exposures occurred when Robert Culver served aboard the Sea Blenny
in 1947, and when he served aboard the Sailor's Splice in 1951.
It was undisputed that the Sea Blenny was built by Western Pipe &
Steel in 1945, and the Sailor's Splice was built by Consolidated
Steel Corporation in 1945. It was also undisputed that United
States Steel Corporation is the successor-in-interest to Western
and Consolidated, as both companies were eventually acquired by
U.S. Steel.
U.S. Steel said both Sea Blenny, a C-3 model ship, and Sailor's
Splice, a C-1 model ship, were built for military use. During
World War II, the Maritime Commission designed and developed such
C-1 and C-3 ships as part of the government's effort to construct
numerous military ships in a short period of time. The Commission
allegedly wrote the specifications for these ships, which included
the use of materials that contained asbestos.
On July 15, 2008, Robert Culver filed an action for personal
injury and loss of consortium caused by exposure to asbestos in
the San Francisco County Superior Court, to which U.S. Steel was
not a party. He passed away on Sept. 7, 2009 while that action
was pending.
Timothy Culver was substituted as the plaintiff, and on Jan. 8,
2010, the complaint was amended to state a claim for wrongful
death. U.S. Steel was served with the first amended complaint on
Jan. 14, 2010. U.S. Steel filed its notice of removal on Aug. 9,
2010.
Before the Court was Timothy Culver's motion to remand to the
superior court due to lack of subject matter jurisdiction.
The Court hereby denied Timothy Culver's motion to remand. The
Court also severed the claims against U.S. Steel from the rest of
the case, and the balance of the case was remanded to San
Francisco County Superior Court.
*********
S U B S C R I P T I O N I N F O R M A T I O N
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