/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/110722.mbx C L A S S A C T I O N R E P O R T E R Friday, July 22, 2011, Vol. 13, No. 144 Headlines ABBOT LABS: Class Action Over Recalled Similac Dismissed ATHEROS COMMUNICATIONS: Faces Securities Class Action in Calif. BANK OF AMERICA: 9th Cir. Allows Stoody-Broser to Amend Class Suit BANK OF AMERICA: Dismissal of Insurance Fraud Suit Upheld BANK OF HAWAII: Settles "Taulava" Suit for $9 Million BEIERSDORF CANADA: Faces Class Action Over Nivea My Silhouette CACV OF COLORADO: Sued Over Unlicensed Debt Collection in Ill. CALPERS: Calif. App. Ct. Affirms Denial of Class Certification CLAIRE'S BOUTIQUES: Removes "Armstrong" Suit to N.D. California DEAN FOODS: Dairy Farmers Balk at Class Action Settlement DIOCESE OF CHARLESTON: Opt-Out Plaintiffs Not Entitled to Interest DOW CHEMICAL: Dioxin Suit Won't Proceed as Class Action DUKE ENERGY: Signs MOU to Settle Merger-Related Suit FINE HOTELS: Settles Discrimination Class Action GENERAL CHEMICAL: Calif. Ct. Says Fund Donation to RCF Is Proper GLOBAL HORIZONS: Thai Workers Seek to Recover More in Labor Suit KEY BANK: Faces Class Action for Breaching Deposit Agreement LAVERN HUELSMANN: Plaintiff Should Amend Suit to Dismiss Claims MGIC INVESTMENT: Bid for Relief from Suit Dismissal Order Pending MGIC INVESTMENT: Defends Two Housing Discrimination Suits NBC UNIVERSAL: PTC Seeks to Reopen Cable Unbundling Class Action NEW LEAF: Lead-Related Suit Remains Pending in California NEWS CORP: Board Faces Class Action Over Phone Hacking Scandal PFIZER INC: Dec. 31 Deadline Set for Fen-Phen Class Action RADIANT SYSTEMS: Being Sold to NCR for Too Little, Suit Claims RENFREW POWER: Lake Water Level Mismanagement Suit Can Proceed RH DONNELLEY: Court Denies Motion to Dismiss Shareholders Suit RJ REYNOLDS: Appeal From $28.3MM Tobacco Suit Verdict Rejected SHARPER IMAGE: Gift Cardholders to Get Reimbursement SIRIUS XM: CCAF Objects to Class Action Settlement SPRINT: Settles Class Action Over Auto-Dial Calls for $5.5 Mil. TORONTO COMMUNITY: Wellesley Fire Suit Gets Class Action Status U.S. RECORD LABELS: Digital Music Price-Fixing Suit Can Proceed U.S. TITLE INSURERS: Judge Orders Arbitration in Monopoly Suit ZENIMAX MEDIA: Sued Over Defectively Designed Video Game Asbestos Litigation ASBESTOS UPDATE: Chase Still Subject to Inactive Scott Lawsuit ASBESTOS UPDATE: Chase Still Involved in Jansen Lawsuit in Wis. ASBESTOS UPDATE: Hartford Increases After-Tax Reserves by $189MM ASBESTOS UPDATE: Boston Univ. Fined $74,250 for Cleanup Breaches ASBESTOS UPDATE: Ill. Judges Hold Hearings on Consolidated Cases ASBESTOS UPDATE: Court Seeks Former DuPont Employee's Testimony ASBESTOS UPDATE: Market Rasen Probed Over GBP63,465 Cleanup Bill ASBESTOS UPDATE: St Albans Man's Death Linked to Hazard Exposure ASBESTOS UPDATE: Davalie's Lawsuit Filed in La. Court on July 9 ASBESTOS UPDATE: Del. Court Rules Against Price in DuPont Action ASBESTOS UPDATE: Hazard Cleared from Three Cheatham Co. Schools ASBESTOS UPDATE: Jennings' Widow Warns Builders Regarding Hazard ASBESTOS UPDATE: IEPA Investigating Issues at Powerhouse Cleanup ASBESTOS UPDATE: Hutto Case v. 18 Firms Filed on June 28 in Tex. ASBESTOS UPDATE: Ginter Awarded $2.5MM in Asbestos Compensation ASBESTOS UPDATE: Calif. Lodge Owner Penalized for Safety Breach ASBESTOS UPDATE: Vaughan's Family Receives Asbestos Compensation ASBESTOS UPDATE: Miss. Court Stalls Proceedings in Brown's Case ASBESTOS UPDATE: Iowa Renovation Project Supervisor Gets Probation ASBESTOS UPDATE: Inquiry on Illegal Dumpsite at Hurunui Ongoing ASBESTOS UPDATE: Hazard Still Being Found in Queensland Schools ASBESTOS UPDATE: Hazard Uncovered in Mithoff Hotel in Lancaster ASBESTOS UPDATE: Madison County Cases Reach 393 Through June 30 ASBESTOS UPDATE: Colo. Court Issues Ruling in Steven Haden Claim ASBESTOS UPDATE: Court Issues Split Ruling in Henderson Lawsuit ASBESTOS UPDATE: Court Denies Perkins Partial Summary Judgment ASBESTOS UPDATE: Conn. Court OKs Trumbull Summary Judgment Bid ASBESTOS UPDATE: Croydon Roofing Firm Fined for Safety Breaches ASBESTOS UPDATE: Marks and Spencer Found Guilty of Safety Breach ASBESTOS UPDATE: Bradford Cathedral Interiors Set for Abatement ASBESTOS UPDATE: 2 Bay City Men Charged for Breach at Ford Plant ASBESTOS UPDATE: EPA to Clear Hazard from Emge Meat Packing Site ASBESTOS UPDATE: Mass. Plant Manager to Resign as Part of Deal ASBESTOS UPDATE: Ill. Court Overturns Verdict in Holmes Lawsuit ASBESTOS UPDATE: Pa. School District to Get Chambersburg Armory ********* ABBOT LABS: Class Action Over Recalled Similac Dismissed -------------------------------------------------------- Jack Bouboushian at Courthouse News Service reports that Baby formula laced with beetles and larvae does not necessarily violate its manufacturer's promises of wholesomeness and quality, a federal judge ruled, in dismissing without prejudice a class action involving Abbot Laboratories' Similac. Lead plaintiff Chalonda Jasper, an Indiana mother, may have been grossed out by the beetle parts, but she may have no legal recourse against Abbott, even though she relied upon Abbot's ad slogans, which included, "When it comes to the science of nutrition, Similac stands apart." Abbott recalled more than 5 million containers of Similac in September 2010, less than a week after Ms. Jasper had bought it and began feeding it to her son. "Abbott announced that it was recalling more than five million containers of formula because the product may have been contaminated with beetles or beetle larvae," U.S. District Judge Virginia Kendall wrote, citing Ms. Jasper's complaint. Shortly afterward, the FDA "found that infants who ingested the formula experienced gastrointestinal discomfort and temporary refusal to eat," the judge wrote. Ms. Jasper filed a class action seeking for "extreme mental anguish and pain and suffering." In a claim of misrepresentation, Ms. Jasper said that Abbott "misrepresented its product to consumers by marketing Similac infant formula as a healthy product while omitting information about the beetle infestation at its Sturgis [Michigan] facility." Ms. Jasper said the Sturgis plant had "a history of beetle infestation," about which Abbott had received numerous customer complaints. But Judge Kendall found that Ms. Jasper's inability to prove a specific injury or show that beetle parts reduced Similac's nutritional value doomed her complaint. "Jasper does not allege a physical injury and her allegations of emotional distress are insufficient. Jasper does not allege that she purchased a defective container of Similac, merely that the Similac that she purchased was subject to a recall," Judge Kendall wrote. Indiana law allows damages for a purely emotional injury provided that one show that the conduct in question caused a "direct impact" on her well-being. But Judge Kendall said the complaint "does not allege that she fed her child any beetle larvae and makes no allegations that she or her son experienced a direct physical impact." Judge Kendall also was unable to uncover "any Indiana precedent allowing a negligent misrepresentation claim to proceed against a manufacturer of consumer goods based on the manufacturer's advertisements to the public." Abbott cannot be held liable for, on one hand, insisting that "you can trust Similac Sensitive to provide a strong start for your baby's developing digestive system," and on the other, being less than judicious with complaints of beetle infestation at its factories. Such complaints do not provide the type of "constructive notice" required to give rise to a claim under Indiana's Deceptive Consumer Sales Act. "The notice must come from the consumer bringing the action," Judge Kendall wrote. "Jasper's complaint includes no marketing statements from Abbott that claim Similac is safe. Instead, Abbott's advertisements only refer to the nutritional value and nutrient blend of Similac." The same logic undermined Ms. Jasper's claim of breach of warranty. "Jasper fails to adequately allege that the Similac that she purchased lacked the benefits that Abbott advertised or that she subsequently failed to receive the benefit of the bargain." To sum it up: "Jasper does not allege that a formula containing beetles or beetle larvae fails to contain a balanced blend of nutrients," Judge Kendall wrote. She granted Abbott's motion to dismiss, without prejudice. A copy of the Memorandum Opinion and Order in Jasper v. Abbott Laboratories, Inc., Case No. 11-cv-00229 (N.D. Ill.), is available at: http://www.courthousenews.com/2011/07/19/Beetles.pdf ATHEROS COMMUNICATIONS: Faces Securities Class Action in Calif. --------------------------------------------------------------- Faruqi & Faruqi, LLP on July 19 disclosed that a class action lawsuit is pending in the United States District Court for the Northern District of California on behalf of Joel Krieger individually and on behalf of all other shareholders of Atheros Communications, Inc., who held securities on or before January 5, 2011, and continued to hold through and including June 3, 2011. The Class Action Complaint alleges that Atheros and certain of its officers and/or directors have violated sections 14(a) and 20(a) of the Securities Exchange Act of 1934 and includes a claim for equitable assessment of attorneys' fees. A copy of the Class Action Complaint filed in this action can be viewed on the firm's Web site at http://www.faruqilaw.com On January 5, 2011, Atheros and Qualcomm, Inc., announced that they had entered into a definitive merger agreement pursuant to which Qualcomm would acquire Atheros and on February 11, 2011. Atheros issued a Definitive Proxy to solicit Atheros shareholders' vote. On March 28, 2011, 74.6% of Atheros shareholders voted to approve the Merger Agreement based on the statements in the Definitive Proxy. The Class Action Complaint alleges that, unbeknownst to Atheros' shareholders, the Definitive Proxy failed to disclose material information including the existence and nature of two key financial analyses that were performed by the Company's financial advisor in support of its fairness opinion and provided to and relied upon by the Company's board of directors in connection with the Board's decision to approve the Merger Agreement. Moreover, the Class Action Complaint alleges that as a result of the false and misleading Definitive Proxy and related filings thereto, the Merger Agreement was consummated and Atheros' public stockholders were unlawfully divested of their holdings in the Company. Plaintiff is represented by Faruqi & Faruqi, LLP, a law firm with extensive experience in prosecuting class actions, and in particular actions involving corporate fraud and wrongdoing. Faruqi & Faruqi, LLP, was founded in 1995 and the firm maintains offices in New York City, Delaware, California, Florida and Pennsylvania. BANK OF AMERICA: 9th Cir. Allows Stoody-Broser to Amend Class Suit ------------------------------------------------------------------ A three-member panel of the U.S. Court of Appeals for the Ninth Circuit upheld a district court order dismissing the complaint styled as Ellen Stoody-Broser, individually and on behalf of all others similarly situated v. Bank of America, N.A. and Bank of America Corporation, Case No. 09-17112 (9th Cir.), but remanded with instructions to grant Ms. Stoody-Broser leave to amend. The panel consists of Circuit Judges Procter Ralph Hug, Jr., Richard A. Paez, and District Judge Michael H. Watson for Southern Ohio, Columbus, sitting by designation. The Stoody-Broser class complaint alleges omissions of material fact and deceptive practices in connection with BofA's investment in proprietary mutual funds. The omissions, the complaint says, allowed BofA to reap millions as part of an unlawful "scheme." The Ninth Circuit held that the district court correctly ruled that the essence of the allegations is that BofA fraudulently engaged in self-dealing. The Ninth Circuit agreed with the District Court that the complaint, as currently drafted, is precluded under the Securities Litigation Standards Act of 1998. "We are not convinced, however, that amendment of the complaint would be futile," the Ninth Circuit says. The Ninth Circuit believes that a complaint may allege a violation of a trust administrator's fiduciary duty to the trust's beneficiaries even where that violation involves trading in covered securities so long as the complaint does not allege, either expressly or implicitly, misrepresentations, omissions, or fraudulent practices coincidental to the violation. "We therefore remand so that Stoody-Broser may be given the opportunity to plead such a complaint," the Appellate Court said. A copy of the 9th Circuit's June 6, 2011, memorandum is available for free at http://is.gd/FHRrdkfrom Leagle.com. BANK OF AMERICA: Dismissal of Insurance Fraud Suit Upheld --------------------------------------------------------- The Court of Appeals of Georgia affirmed the dismissal of the putative class action, Rosa Thomas, et al. v. Bank of America Corporation and FIA Card Services, N.A. Ms. Thomas' action arises from the defendants' debt cancellation product called "Credit Protection Plus." For 95 cents per $100 of outstanding balance on a credit card account, Credit Protection Plus provides for the cancellation of the account balance or suspension of the minimum payment due if certain specified events occur. But because the components are bundled, a customer who purchases Credit Protection Plus must purchase all components, including those components for which she is ineligible. Ms. Thomas alleges (1) that the defendants committed insurance fraud by falsely representing that all of the bundled components of Credit Protection Plus would be available to her; (2) that the defendants violated the Georgia Insurance Code by failing to quote the premium rates for the bundled components separately so that she could purchase them separately; (3) that the defendants violated the Georgia Insurance Code by charging premiums that exceeded the premium rates on file with the Georgia Insurance Commissioner; (4) that the defendants violated the Georgia RICO Act; (5) that the defendants engaged in unfair and deceptive business practices by selling to her products for which she was not eligible; (6) that the defendants committed the tort of bad faith by failing to verify their customers' eligibility for Credit Protection Plus and by failing to inform them if they were ineligible; and (7) that there was a partial failure of consideration since the defendants charged all customers the same price for Credit Protection Plus. The trial court granted the defendants' motion to dismiss the Thomas action, finding that federal banking law pre-empted all of Ms. Thomas' claims. Ms. Thomas appealed the trial court order. Judge Christopher McFadden, who penned the Georgia Court of Appeals decision, said it is clear that the Comptroller of the Currency has determined that debt cancellation contracts are not subject to state laws, including state insurance laws, and that banks may charge fees in accordance with prudent banking practices, regardless of state insurance law. The lower court did not err by concluding that federal law preempts Ms. Thomas' claims and that Credit Protection Plus is not insurance, Judge McFadden said. Judges J.D. Smith and Charles B. Mikell concurred. A copy of the court's June 6, 2011, order is available at http://is.gd/GbxK9sfrom Leagle.com. BANK OF HAWAII: Settles "Taulava" Suit for $9 Million ----------------------------------------------------- Bank of Hawaii Corporation reached a $9-million tentative settlement in the purported class action lawsuit filed by Lodley and Tehani Taulava, according to the Company's July 18, 2011, Form 8-K filing with the U.S. Securities and Exchange Commission. On July 15, 2011, the Bank reached a tentative settlement with the plaintiffs in the class action lawsuit filed in Hawaii, arising from claims that the Bank had improperly charged overdraft fees on debit card transactions. The tentative settlement, subject to documentation and court approvals, provides for a payment by the Company of $9.0 million into a class settlement fund the proceeds of which will be used to refund class members, and to pay attorneys' fees, administrative and other costs, in exchange for a complete release of all claims asserted against the Company. As previously reported, the Bank was named a defendant in a purported class action lawsuit filed on February 15, 2011, by plaintiffs Lodley and Tehani Taulava, on behalf of themselves and on behalf of all similarly situated customers of the Bank, in the Circuit Court of the First Circuit, State of Hawaii (Civil Case No. 11-1-0337-02). The complaint asserts claims relating to overdraft fees collected by the Bank. The plaintiffs seek monetary damages, restitution and declaratory relief from the Bank. BEIERSDORF CANADA: Faces Class Action Over Nivea My Silhouette -------------------------------------------------------------- Consumer Law Group Inc. on July 19 announced the filing in the Quebec Superior Court of a proposed national class action lawsuit against Beiersdorf Canada Inc. on behalf of individuals who have purchased the product Nivea My Silhouette Slimming & Reshaping Gel-Cream. The class action involves the deceptive, misleading, false, and unfair advertising of Nivea My Silhouette as a product whose regular use will result in a significant reduction in body size, particularly of the thighs, hips, waist and stomach. In truth and in fact, there is no evidence to support these claims. On June 29, 2011, the company reached a settlement with the US Federal Trade Commission forcing the skin cream maker to pay C$900,000 in compensation to consumers, as well as, stopping its claim that regular use of its Nivea My Silhouette would help consumers slim down. Nevertheless, the product remains on store shelves in Canada with these same weight-loss claims on the packaging and no refunds have been made available to Canadian consumers. Anyone who has purchased Nivea My Silhouette should contact our law firm at info@clg.org or 1-888-909-7863. Alternatively, please complete the form at: http://www.clg.org/Class-Action/List-of-Class-Actions/Nivea-My- Silhouette-National-Class-Action For further information: Me Jeff Orenstein Telephone: 514-CONSUMER (266-7863) ext. 220 E-mail: jorenstein@clg.org Web site: http://www.clg.org CACV OF COLORADO: Sued Over Unlicensed Debt Collection in Ill. -------------------------------------------------------------- Saul Unzueta, individually and on behalf of the class defined herein, and People of the State of Illinois ex rel. Saul Unzueta v. CACV of Colorado, LLC, Case No. 2011-CH-25096 (Ill. Cir. Ct., Cook Cty., July 18, 2011) seeks redress for the conduct of CACV in taking collection actions prohibited by the Illinois Collection Agency Act. The Plaintiff alleges that although unlicensed, CACV collected debts from consumers in Illinois from January 1, 2008, through April 20, 2008. The Plaintiff is a resident of Cook County, Illinois. CACV is a limited liability company chartered under Colorado law and does business in Illinois, with principal offices located at 4340 S. Monaco St., 2nd Floor, in Denver, Colorado 80237. CACV purchases or claims to purchase charged-off consumer debts and enforcing the debts against the consumers by filing collection lawsuits and otherwise. The Plaintiff is represented by: Daniel A. Edelman, Esq. Cathleen M. Combs, Esq. James O. Latturner, Esq. EDELMAN, COMBS, LATTURNER & GOOD, LLC 120 S. LaSalle Street, 18th Floor Chicago, IL 60603 Telephone: (312) 739-4200 Facsimile: (312) 419-0379 E-mail: courtecl@edcombs.com ccombs@edcombs.com jlatturner@edcombs.com CALPERS: Calif. App. Ct. Affirms Denial of Class Certification -------------------------------------------------------------- The Court of Appeals of California, Second District, Division Three, affirmed a trial court order denying class certification of the action, Michael D. Scott, et al. v. California Public Employees' Retirement System, Graphic Center, and Direct Mail Services Inc. Plaintiffs filed the class suit against the defendants and sought to certify a class of all CalPERS members whose privacy rights were violated by the disclosure of their social security numbers. CalPERS sent an election brochure in August 2007 to about 391,000 retired members, whose social security numbers were printed on the address labels. The brochure notified of an election for the retiree representative seat on the CalPERS Board. Graphic created, while Direct Mail mailed, the brochure. The trial court denied certification of the plaintiff's statutory causes of action on the ground that a class action is not the superior means of resolving the litigation. The trial court also denied class certification of plaintiffs' negligence claim on the ground of lack of superiority, as well as because common questions did not predominate. Plaintiffs Michael D. Scott and Earle W. Robitaille appealed the trial court decision in October 2009. Credit monitoring services were offered by CalPERS for free for a period of one year to members after it received complaints on the social security numbers disclosure. The Court of Appeals held that both Messrs. Scott and Robitaille eschew credit monitoring services as a means of preventing identity theft and thus, do not have claims typical of the class which they seek to represent. A copy of the Court of Appeals' June 10, 2011, order is available at http://is.gd/3E5tkqfrom Leagle.com. CLAIRE'S BOUTIQUES: Removes "Armstrong" Suit to N.D. California -------------------------------------------------------------- Jaclyn Armstrong, an individual; on behalf of herself and all others similarly situated current and former employees v. Claire's Boutiques, Inc., a Colorado corporation, and Does 1 through 50, inclusive, Case No. 1-11-CV203162 (Calif. Super. Ct., Santa Clara, June 15, 2011) is brought to recover unpaid compensation for meal periods not taken, damages for inaccurate wage statements, interest, waiting time penalties, attorneys' fees, costs and expenses, and remedies for violation of the California Business and Professions Code. The Plaintiff alleges that she and class members were improperly denied earned wages under the Defendants' various unlawful payroll practices and policies. Ms. Armstrong was at all relevant times a non-exempt employee, working at a Claire's Boutique owned and operated by the Defendants in California. Claire's Boutiques, Inc., is a Colorado corporation doing business as Claire's and Claire's Boutiques in the state of California. The true names and capacities of Defendants Does 1 through 50 are unknown to the Plaintiff, but they were sued as each of the Doe defendants is alleged to be negligently or legally responsible in some manner for the events and happenings set forth in the complaint and caused injuries and damages to the Plaintiff. Claire's Boutiques removed the lawsuit on July 18, 2011, from the Superior Court of the state of California for the County of Santa Clara to the United States District Court for the Northern District of California. The Company argues that the removal is proper because complete diversity of citizenship exists between one or more members of the class and the Defendants. The District Court Clerk assigned Case No. 5:11-cv-03512 to the proceeding. The Plaintiff is represented by: Dylan Pollard, Esq. Matt C. Bailey, Esq. POLLARD BAILEY 9701 Wilshire Boulevard, 10th Floor Beverly Hills, CA 90212 Telephone: (310) 854-7650 Facsimile: (310) 492-9934 E-mail: mbailey@pollardbailey.com dpollard@pollardbailey.com - and - Alfredo Torrijos, Esq. TORRIJOS LAW 11856 Balboa Boulevard, # 297 Granada Hills, CA 91344 Telephone: (213) 784-2511 Facsimile: (213) 261-3948 The Defendants are represented by: John S. Battenfeld, Esq. MORGAN, LEWIS & BOCKIUS LLP 300 South Grand Avenue, Twenty-Second Floor Los Angeles, CA 90071-3132 Telephone: (213) 612-2500 Facsimile: (213) 612-2501 E-mail: jbattenfeld@morganlewis.com - and - Eric Meckley, Esq. Rebecca Licht, Esq. MORGAN, LEWIS & BOCKIUS LLP One Market, Spear Street Tower San Francisco, CA 94105-1126 Telephone: (415) 442-1000 Facsimile: (415) 442-1001 E-mail: emeckley@morganlewis.com rebecca.licht@morganlewis.com DEAN FOODS: Dairy Farmers Balk at Class Action Settlement --------------------------------------------------------- Anne Galloway, writing for VTDigger.org, reports that the two dairy farmers, who fought Dean Foods in federal court and won a preliminary $30 million class action settlement with the nation's largest dairy processor, are disappointed with the non-monetary results of the agreement. The plaintiffs from Vermont and New York sought injunctive relief, or a stop to Dean's alleged collusive business practices. They also hoped, in the course of litigation, to expose the history of the company's dealings to public purview. Neither of these objectives was achieved by the preliminary settlement agreement, according to the plaintiffs' lawyer, Kit Pierson. The Vermont Attorney General's office, which issued an opinion on the settlement, largely aligned with the plaintiffs' stance. An attorney for Dean Foods said the company had done nothing wrong. The plaintiffs and the defendants were in U.S. District Court in Rutland on July 18 to make their arguments at a "fairness" hearing before Judge Christine Reiss, who approved the initial settlement between Dean and the farmers in May. Judge Reiss said she hopes to make a final decision on the terms of the agreement within 30 days. The monetary award, which is to be divided among 9,000 farmers in New England and New York state, now seems small in light of another recent Dean Foods settlement: The corporation settled a similar case with farmers in Tennessee for $140 million last week. Paul Friedman, the attorney for Dean Foods said the plaintiffs received a "substantial recovery," particularly in light of the plaintiff's "fundamental theory," which was that Dean Foods "hatched a conspiracy" to artificially deflate the price it paid to farmers for milk. "We don't think they can prove it," Mr. Friedman said. In both the Vermont and Tennessee cases, court records have remained sealed, as neither lawsuit has gone to trial. Because Judge Reiss decided to bifurcate the Vermont lawsuit, it is possible the second part of the complaint, which is directed at Dairy Farmers of America and Direct Marketing Services, could go to trial if Judge Reiss certifies the class. DFA and DMS have not agreed to a settlement with the plaintiffs. The question of class certification was supposed to be taken up at the hearing, but because one of the attorneys for DFA and DMS wasn't present, the decision was delayed. The original Vermont complaint alleges that Dean, Dairy Farmers of America and Direct Marketing Services conspired to create a closed market that kept milk prices artificially low. Lawyers for the plaintiffs have said the three entities created an unfair system where farmers had no choice but to go through a middleman to sell to the biggest milk buyer in the region. Dean owns Garelick Farms, Borden and Horizon Organic. Attorneys for Dean Foods argue the corporation has done nothing wrong and the settlements reached in Vermont and Tennessee are not admissions of guilt. The court asked the Vermont Attorney General's office to evaluate the settlement in light of the Tennessee case. Elliot Burg, an assistant attorney general, wrote that he was concerned that the plaintiffs in Allen v. Dean Foods are receiving substantially less compensation. "Plaintiffs in the Southeast litigation will receive approximately 9 times the amount of money based on volume of milk produced, or 11.5 times more money based on the number of farmers," according to a statement from Wendy Morgan, chief of the Public Protection Division of the Vermont Attorney General's office. Mr. Burg noted that the plaintiffs in the Northeast settled within a year of litigating, and "prior to any discovery being taken from Dean." In the Tennessee case, the settlement was made on the eve of a trial, after four years of litigation. If the Vermont case isn't settled soon, it's possible Dean Foods could fail, "in which case no dairy farmers will recover anything," according to Mr. Burg. That's because the company's stock prices have continued to fall. Since 2006, the value of Dean's shares have dropped by more than half. The Web site Daily Finance reports that Dean is "crippled by debt. It put the Dallas-based company on its list of '10 American Companies That Will Disappear in 2011.'" Alice Allen, a dairy farmer in Wells River, and Ralph and Garrett Sitts, farmers in Franklin, N.Y., expressed their dissatisfaction with the results of the legal contest through their attorney in U.S. District Court in Rutland on July 18. They are not, their attorney Kit Pierson said, disgruntled about the money. Ms. Allen and the Sitts' sought redress and injunctive relief. The redress, which sugars off to about $3,300 per class action claimant (minus the proposed attorneys' fees it's about $2,200), is "barely enough to pay the light bill" for a few months, as one farmer in the audience put it. And injunctive relief, or a stop to the alleged collusionary practices of Dean Foods, Dairy Farmers of America and Dairy Marketing Services, was ruled out as part of the monetary settlement. "The clients were never in this for the money," Mr. Pierson, attorney for the plaintiffs, told the court. "They stepped up out of real concern about practices that they and we regard as illegal. They want to see changes in the industry to improve the situation for everyone and help farmers get a fair deal, which we're pursuing in terms of injunctive relief from Dairy Farmers of America. "One of their goals is to shed light on what is happening in the Northeast and a frustration they've had is it's been hard to get things out in the light," Mr. Pierson said. "In our view, the overwhelming majority of facts in the case should be a matter of public record. There is a lot of talk about farmers against farmers (in this case). Let people see the real facts, then you'll see a lot less division." About 10 farmers filed into the ornate courtroom in Rutland on July 18. The majority sat on the defendants' side of the room. One of the farmers seated behind the half dozen attorneys for Dean, Dairy Farmers of America and Dairy Marketing Services, defended Dean in a speech to the judge. John Gorton, a farmer from Fairfield, argued that the settlement is potentially detrimental to his business relationship with Dean Foods. He blamed periodically depressed milk prices on the federal milk pricing system and farmers' tendency to "produce too much milk." "My problem with this lawsuit is it does nothing to help me solve the real issue in my industry," Mr. Gorton said. Paul Friedman, the attorney for Dean Foods, bolstered this argument in his comments to the court. He characterized the milk pricing system as "a creature of the federal government," a national metrics system that doesn't "bear any relationship to the costs or market prices for milk." Mr. Friedman accused the plaintiffs of using the courts to change government policy. "Litigation is a blunt instrument when used to address policy issues," Mr. Friedman said. "It's important to underscore the issue before the court, which is whether this case is fair and reasonable." Mr. Gorton strenuously objected to the 33.3% fee the plaintiffs' lawyers had requested. The attorneys for the plaintiffs, who took the case on a contingency basis, are asking for about $10 million in compensation. Mr. Pierson, who represents the plaintiffs, spent much of the hearing justifying the percentage fee, which he said was based on the time his firm spent preparing for a trial. Though he said the office had reviewed millions of pages of documents from the Tennessee case, it had not begun taking depositions of defendants when the case was settled. Mr. Pierson argued that members of the firm had spent dozens of hours in negotiations with Dean and he said they had worked diligently to keep the case from dragging on and becoming, as Judge Reiss put it, "the most expensive case in Vermont history." "By the time we sat down, we had done an extraordinary amount of work," Mr. Pierson said. "A good lawyer is prepared to go to trial and a good lawyer is also prepared to settle." Judge Reiss replied that most anti-trust cases settle instead of going to trial. Typically, she said, plaintiffs can expect to pay less for cases that are settled well in advance of trial. DIOCESE OF CHARLESTON: Opt-Out Plaintiffs Not Entitled to Interest ------------------------------------------------------------------ The Supreme Court of South Carolina dismissed as moot an appeal by sexual abuse victims from Judge Goodstein's order denying interest payment on the victims' settlement of their case against the Diocese of Charleston. The appeal follows a series of motions related to a class action settlement administered in Dorchester County. The class action dealt with allegations that certain minors were victims of sexual abuse at the hands of agents of the Diocese. The victim appellants opted out of the class action and reached an independent $1.375 million settlement with the Diocese in exchange for the appellants' release and discharge of all claims against the Diocese. The Supreme Court noted Appellants executed full and complete releases without any reservation of rights, and they received the funds due to them under the opt-out agreement in return. Appellants, the Supreme Court held, waived any right to interest when they signed releases discharging the Diocese from liability of all actions and claims up to the date of release. "Thus, this appeal is moot," the Supreme Court said. Moreover, Appellants have no stake in the issues they raise regarding the class action settlement because they opted out of the class, the Supreme Court said. Thus, a decision in Appellants' favor would have no practical effect, the Supreme Court said. The Supreme Court panel is composed of Justices Jean H. Toal, Costa Pleicones, Donald W. Beatty, John W. Kittredge, and Kaye Gorenflo Hearn. A copy of the Supreme Court's June 13, 2011, order is available at http://is.gd/fEoclhfrom Leagle.com. DOW CHEMICAL: Dioxin Suit Won't Proceed as Class Action ------------------------------------------------------- Lindsay Knake, writing for The Saginaw News, reports that retired Saginaw County Judge Leopold Borrello issued an opinion which removed class action status from Henry V. Dow Chemical, a lawsuit against the Midland-based chemical company. More than 150 Saginaw County homeowners living along the Tittabawassee River filed a lawsuit in 2003, claiming dioxin released by Dow diminished property values downstream from its Midland plant. Judge Borrello's opinion and order cited the class action case against Walmart. Employees sued Walmart because of alleged discrimination, and the U.S. Supreme Court denied class certification based on employees' failure to establish the commonality prerequisite. The prerequisite requires the plaintiff to demonstrate the class members have suffered the same injury, according to Saginaw County court documents. "The only common question in the present case is whether defendant released dioxin into the Tittabawassee River flood plain," states the opinion document. "Even assuming that defendant negligently released dioxin and that it contaminated the soil in plaintiff's properties, whether and how the individual plaintiffs were injured involves highly individualized factual inquiries regarding issues such as the level and type of dioxin contamination in the specific properties, the different remediation needs and different stages of remediation for different properties, and the fact that some of the properties have been sold." Dow Attorney Kathleen Lang said the company is happy with the opinion, and Dow has never believed the case should not be class action. Thomas Township resident Carol Chisholm said she was disappointed in the opinion. In 2005, Judge Borrello had granted the plaintiff class action status. The Michigan Supreme Court in 2009 ordered Judge Borrello to revisit the lawsuit to further clarify his earlier ruling that granted class-action status for plaintiffs. If the lawsuit would have had class action status, it will involve about 2,500 Saginaw County residents. Dioxin is a group of chemical byproducts from combustion. People exposed to the human carcinogen can delay motor skills and neurodevelopment in children and impact growth, metabolism and reproductive hormones. According to the Centers for Disease Control, 95% of Americans have dioxins in their blood. Dow has acknowledged responsibility for the dioxins and furans released into the Tittabawassee River from the 1930s to the 1970s. DUKE ENERGY: Signs MOU to Settle Merger-Related Suit ---------------------------------------------------- Duke Energy Corporation entered into a memorandum of understanding to settle a consolidated merger-related lawsuit pending in North Carolina, according to the Company's July 18, 2011, Form 8-K filing with the U.S. Securities and Exchange Commission. On July 11, 2011, solely to avoid the costs, risks and uncertainties inherent in litigation and to allow the shareholders of Progress Energy, Inc. vote at the special meeting of Progress Energy shareholders on the proposals required in connection with the proposed merger between Duke Energy and Progress Energy, Progress Energy and Duke Energy entered into a memorandum of understanding with plaintiffs and other named defendants, including Diamond Acquisition Corporation, regarding the settlement of the lawsuit captioned In re Progress Energy Shareholder Litigation, pending in the Superior Court, Wake County, North Carolina, under Consolidated File No. 11-CVS-739, as well as the settlement of all related claims that were or could have been asserted in other actions, including actions filed in federal court. That lawsuit represents the consolidation of nine class action lawsuits filed on behalf of Progress Energy's shareholders following the public announcement of the execution of the Agreement and Plan of Merger, dated January 8, 2011, by and among Duke Energy, Diamond Acquisition and Progress Energy. The lawsuits seek to, among other things, enjoin the proposed merger from proceeding. Under the terms of the memorandum of understanding, the named defendants, including Progress Energy, Duke Energy and Diamond Acquisition, and the plaintiffs in the consolidated state action have agreed to settle the consolidated action and all related claims subject to court approval. If the court approves the settlement contemplated in the memorandum of understanding, the claims will be released and the consolidated amended complaint will be dismissed with prejudice. Pursuant to the terms of the memorandum of understanding, Progress Energy has agreed to make available additional information to its shareholders in advance of the special meeting of shareholders of Progress Energy scheduled for August 23, 2011, in Raleigh, North Carolina, to vote upon the proposal to approve the plan of merger contained in the Merger Agreement. On July 15, 2011, Progress Energy filed a Current Report on Form 8-K with the SEC that includes additional detail regarding the memorandum of understanding and includes the supplemental disclosures contemplated by the memorandum of understanding. Duke Energy, Progress Energy and the other defendants, including Diamond Acquisition, have vigorously denied, and continue vigorously to deny, that they have committed or aided and abetted in the commission of any violation of law or engaged in any of the wrongful acts that were or could have been alleged in the consolidated lawsuit, and expressly maintain that, to the extent applicable, they diligently and scrupulously complied with their fiduciary and other legal duties and are entering into the contemplated settlement solely to eliminate the burden and expense of further litigation, to put the claims that were or could have been asserted to rest, and to avoid any possible delay to the closing of the merger that might arise from further litigation. Nothing in the Current Report on Form 8-K, the Progress Energy 8-K, the memorandum of understanding, or any stipulation of settlement will be deemed an admission of the legal necessity or materiality under applicable laws of any of the disclosures set forth in the report or in the Progress Energy 8-K. FINE HOTELS: Settles Discrimination Class Action ------------------------------------------------ Tom Murse, writing for Lancaster Online, reports that former owners and operators of the Lancaster Host Resort & Conference Center have agreed to pay $675,000 to a predominantly black church to settle claims that it denied parishioners rooms because of their race, court records show. Fine Hotels Corp. and two related firms denied allegations of wrongdoing made by leaders of Macedonia Church in Norwalk, Conn., but agreed to the cash settlement in return for the class-action suit being dropped in June. The church's leader, the Rev. DeWitt Stevens Jr., could not immediately be reached for comment, but he told the Stamford Advocate newspaper he is pleased the 6-year-old case has finally been resolved. "I am so thankful to God that justice has prevailed," Mr. Stevens told the paper. "I am so glad it is over with. If it went to a jury, it could have gone any way, but I think they had enough evidence stacked against them that the jury would have gone our way." An attorney for the defendants, Gerald L. Maatman, Jr., of the Chicago law firm of Seyfarth Shaw, said he would follow instructions from his clients and not comment on the settlement to reporters. At the time of the alleged incident in 2004, the hotel was owned, operated and managed by Lancaster Hotel Limited Partnership, Fine Hotels and MASSPA Realty Corp., according to court records. Fine Hotels continues to operate about a dozen hotels across the country. But it sold the sprawling 45-year-old Lincoln Highway East resort, a cornerstone of the county's tourism industry, later in 2004, according to newspaper records. Mr. Stevens sued the companies in 2005 on behalf of Macedonia Church's 114 members after the Host allegedly said it would allow parishioners to stay there during a summer trip that included plans to attend a show at Sight & Sound Theatres and visit Hersheypark. According to the complaint, resort officials later claimed the Host was overbooked. Mr. Stevens, suspecting his church was being treated unfairly, asked a white parishioner of a Presbyterian church to try booking dozens of rooms on the same dates, and was told they were available. U.S. District Judge Tucker Melancon approved the settlement, noting the hotel's records showed it had rooms on the dates it told Macedonia it was booked. The Host is now managed by Baltimore-based Milestone Hotel Partners. GENERAL CHEMICAL: Calif. Ct. Says Fund Donation to RCF Is Proper ---------------------------------------------------------------- The Court of Appeals of California, First District, Division Five, rejected the contention of class attorneys in the action captioned In re General Chemical cases, Case Nos. A126881, A127769 (Calif. App. Ct.) that the trial court erred in ordering unclaimed class settlement funds be distributed to Richmond Childrens Foundation ahead of payment of contingent attorney fees. The appellant-attorneys are Kay Holley, Steven E. Mendelson and Donald Amamgbo. The defendant under the consolidated class action is General Chemical Corporation, who was sued with other defendants on behalf of 48,000 plaintiffs for damages resulting from 2001 incidents by which chemicals from GCC's sulfuric acid facility in Richmond, California, were released into the air. Class plaintiffs stipulated to a class certification solely for purposes of a $6.25 million class settlement. In May 2006, the trial court approved the payment of $1.25 million in common benefit fund attorney fees, which was to be allocated later. The trial court also approved a contingency fee of 28% for adult plaintiffs and 20% for minor plaintiffs for whom there were valid retainer agreements. Under the settlement, any settlement check not encashed within a year of release was to be donated to RCF. In September 2009, the trial court found that $572,300 remained in the general fund, concluded that those funds were "cy pres" funds, and ordered that they be donated to RCF. It also found that plaintiffs' attorneys had already received 41.7% of the settlement funds and stated that if the attorneys are allowed to invade the cy pres fund, they would receive 54.1% of the net recovery -- a result that is not acceptable to the public. Upon review, the Court of Appeals held that the trial court did not abuse its discretion in deciding to limit the fees when appellants moved for disbursement of fees in 2009. Accordingly, the Court of Appeals affirmed the trial court orders. The matter is remanded to the trial court to determine the parties' request for fees on appeal, the Court of Appeals ruled. The Court of Appeals panel is composed of Justices Barbara Jones and Henry E. Needham, Jr. A copy of the Court of Appeals' June 14, 2011, order is available at http://is.gd/fQapWwfrom Leagle.com. GLOBAL HORIZONS: Thai Workers Seek to Recover More in Labor Suit ---------------------------------------------------------------- June Williams at Courthouse News Service reports that a class of farm workers who won an employment discrimination suit asked the United States Court of Appeals for the Ninth Circuit to move the decimal point on a $237,000 judgment so that workers can rake in more than $2 million in damages. The original class action suit was filed after Global Horizons, a labor contractor, imported workers from Thailand to harvest fruit in two Yakima Valley orchards under the H-2A guest worker program, which allows employers to import foreign labor only if U.S. workers are not available. A jury found that the Thai workers had displaced local farm workers, and, awarding the class representatives actual and general damages. The class members opted to seek damages under Washington's Farm Labor Contractor Act in a bench trial, where U.S. District Judge Alan McDonald awarded them $237,000, rejecting claims that each member was entitled to $500 per violation, regardless of actual injury, exceeding $2 million. Arguing on behalf of the farm workers before a three-judge appellate panel last week, attorney Lori Isley said Judge McDonald misinterpreted the law. Although the Farm Labor Contractor Act says the court "may" award actual damages or statutory damages of $500 per violation, Ms. Isley said legislators intended for the damages to be mandatory. At the appellate hearing in Seattle, Judge Richard Clifton was skeptical. "When the thing starts with 'may,' the notion that you can extract from that a mandatory provision seems to me a hard sell," he said. Ms. Isley claimed that the Washington Legislature intended for the law to mirror an Oregon statute that includes fixed statutory damages "to protect exploited farm workers." "Even had the Legislature used 'shall' here, there may have been problems with the statutory constructions," Ms. Isley said. "Which is why it's so important for this court to also consider the legislative intent and the purpose of the statute." Green Acre Farms and Valley Fruit Orchards were represented by Brendan Monahan, who argued that the farm workers were unable to prove actual damages. "Suddenly, when the plaintiffs had the burden to produce evidence of damages, it went away, and they stuck with this argument: 'We'll just take our $500 automatic penalty,'" Mr. Monahan said. Ms. Isley claimed in her rebuttal that violations were "difficult to evaluate in monetary terms," and she also said the two orchards should pay attorneys' fees for the farm workers. KEY BANK: Faces Class Action for Breaching Deposit Agreement ------------------------------------------------------------ Courthouse News Service reports that a class action claims Key Bank welshed on its promise to give iPods to people who opened accounts and fulfilled certain conditions. A copy of the Complaint in Fuller v. Key Bank, et al., Case No. 110904950 (Utah Dist. Ct., Weber Cty.), is available at: http://www.courthousenews.com/2011/07/19/KayBank.pdf The Plaintiff is represented by: Robert J. Fuller, Esq. FULLER LAW OFFICE, LC 1090 North 5900 East Eden, UT 84310 Telephone: (801) 745-3536 E-mail: fullerlawyer@aol.com LAVERN HUELSMANN: Plaintiff Should Amend Suit to Dismiss Claims --------------------------------------------------------------- Judge John Phil Gilbert of the U.S. District Court for the Southern District of Illinois denied a joint motion for leave to voluntarily dismiss certain class action claims in the case captioned, James C. McKay, on behalf of himself and others similarly situated, et al. v. Lavern Huelsmann, doing business as Senior Retirement Services, et al., Case No. 11-cv-235-JPG-SCW (S.D. Ill.). The dismissal motion was brought under Rule 41 of the Federal Rules of Civil Procedure. Mr. McKay sought leave to voluntarily dismiss with prejudice any class action claims in the complaint and to strike any class action allegations. If the claims are dismissed and the allegations are stricken, the matter may be remanded to the Circuit Court of St. Clair County, Illinois, to which defendant FCB New Baden Bank consents. The District Court holds that Civil Rule 41(a)(1) is inapplicable to the motion because it speaks of dismissing an "entire action." Mr. McKay seeks to dismiss only some claims against the Defendants. To voluntarily dismiss only some claims against a defendant, a plaintiff should amend his pleading. The District Court accordingly grants Mr. McKay leave to file an amended complaint. If such a complaint is timely filed, the District Court said it can and will remand the matter to the Circuit Court of St. Clair County, Illinois, Twentieth Judicial Circuit. A copy of the District Court's June 6, 2011, memorandum and order is available at http://is.gd/vBNNKUfrom Leagle.com. MGIC INVESTMENT: Bid for Relief from Suit Dismissal Order Pending ----------------------------------------------------------------- Plaintiffs' motion for relief from a judgment dismissing their complaint against MGIC Investment Corporation is pending, according to the Company's July 18, 2011, Form 8-K filing with the U.S. Securities and Exchange Commission. Five previously-filed purported class action complaints filed against the Company and several of its executive officers were consolidated in March 2009 in the United States District Court for the Eastern District of Wisconsin and Fulton County Employees' Retirement System was appointed as the lead plaintiff. The lead plaintiff filed a Consolidated Class Action Complaint on June 22, 2009. Due in part to its length and structure, it is difficult to summarize briefly the allegations in the Complaint but it appears the allegations are that the Company and its officers named in the Complaint violated the federal securities laws by misrepresenting or failing to disclose material information about (i) loss development in the Company's insurance in force, and (ii) C-BASS, including its liquidity. Credit-Based Asset Servicing & Securitization LLC, also known as C-BASS, is an affiliate of the Company. C-BASS filed for Chapter 11 bankruptcy protection on November 12, 2010, in New York. The Company's motion to dismiss the Complaint was granted on February 18, 2010. On March 18, 2010, plaintiffs filed a motion for leave to file an amended complaint. The Amended Complaint alleged that the Company and two of its officers named in the Amended Complaint violated the federal securities laws by misrepresenting or failing to disclose material information about C-BASS, including its liquidity, and by failing to properly account for the Company's investment in C-BASS. The Amended Complaint also named two officers of C-BASS with respect to the Amended Complaint's allegations regarding C-BASS. The purported class period covered by the Amended Complaint began on February 6, 2007, and ended on August 13, 2007. The Amended Complaint sought damages based on purchases of the Company's stock during this time period at prices that were allegedly inflated as a result of the purported violations of federal securities laws. On December 8, 2010, the plaintiffs' motion to file an amended complaint was denied and the Complaint was dismissed with prejudice. On January 6, 2011, the plaintiffs appealed the February 18, 2010, and December 8, 2010 decisions to the United States Court of Appeals for the Seventh Circuit. On June 6, 2011, the plaintiffs filed a motion with the District Court for relief from that court's judgment of dismissal on the grounds that the transcripts it obtained of testimony taken by the SEC in its now-terminated investigation regarding C-BASS are newly discovered evidence showing that amending its complaint would not be futile. The Company says it is unable to predict the outcome of these consolidated cases or estimate the Company's associated expenses or possible losses. Other lawsuits alleging violations of the securities laws could be brought against the Company. MGIC INVESTMENT: Defends Two Housing Discrimination Suits --------------------------------------------------------- MGIC Investment Corporation continues to defend two lawsuits alleging housing discrimination in Pennsylvania, according to the Company's July 18, 2011, Form 8-K filing with the U.S. Securities and Exchange Commission. In September 2010, a housing discrimination complaint was filed against MGIC with the U.S. Department of Housing and Urban Development ("HUD") alleging that MGIC violated the Fair Housing Act and discriminated against the complainant on the basis of her sex and familial status when MGIC underwrote her loan for mortgage insurance. In May 2011, HUD commenced an administrative action against MGIC and two of its employees, seeking, among other relief, aggregate fines of $48,000. The HUD complainant elected to have charges in the administrative action proceed in federal court and on July 5, 2011, the U.S. Department of Justice filed a civil complaint in the U.S. District Court for the Western District of Pennsylvania against MGIC and these employees on behalf of the complainant. The complaint seeks redress for the alleged housing discrimination, including compensatory and punitive damages for the alleged victims and a civil penalty payable to the United States. MGIC denies that any unlawful discrimination occurred and disputes many of the allegations in the complaint. In October 2010, a separate purported class action lawsuit was filed against MGIC by the HUD complainant in the same District Court in which the DOJ action is pending alleging that MGIC discriminated against her on the basis of her sex and familial status when MGIC underwrote her loan for mortgage insurance. In May 2011, the District Court granted MGIC's motion to dismiss with respect to all claims except certain Fair Housing Act claims. MGIC says it intends to vigorously defend itself against the allegations in both the class action lawsuit and the DOJ lawsuit. Based on the facts known at this time, the Company does not foresee the ultimate resolution of these legal proceedings having a material adverse effect on the Company. NBC UNIVERSAL: PTC Seeks to Reopen Cable Unbundling Class Action ---------------------------------------------------------------- Deborah D. McAdams, writing for TVTechnology, reports that the Parents Television Council on July 19 said it filed an amicus with the U.S. Ninth Circuit Court of Appeals to hear a case for unbundling cable programming. Brantley v. NBC Universal is a class action antitrust suit filed with the court in Pasadena, Calif., naming NBCU, Viacom, Disney, Fox, Time Warner, Comcast DirecTV, EchoStar and others as defendants. The court tossed the case out last month, ruling that selling channel packages did not violate the Sherman Act. The PTC said it was joined in its brief by several organizations, including the Consumer Federation of America, Concerned Women for America, Morality in Media, Family Research Council Action, Citizens for Community Values, Arizona Family Council, and Illinois Family Institute. "Currently, consumers who subscribe to cable and satellite television services are forced to buy bundles of cable network programming, much of which they do not want and do not watch," PTC chief Tim Winter said. The court dismissed the plaintiffs' first complaint without prejudice on the grounds that it "failed to show that their alleged injured were caused by an injury to competition." The plaintiffs then amended their complaint and went after cable companies for squeezing out independent programmers. That proved too complicated and the group backed off, triggering a dismissal. "The plaintiffs here have not explained how competition -- rather than consumers -- was injured by the widespread bundling practice," Judge Sandra S. Ikuta wrote. "The complaint included no allegations that programmers' sale of cable channels in bundles has any effect on other programmers' efforts to produce competitive programming channels or on distributors' competition on cost and quality of service. In the absence of any allegation of injury to competition, as opposed to injuries to consumers, we conclude that plaintiffs have failed to state a claim for an antitrust violation." NEW LEAF: Lead-Related Suit Remains Pending in California --------------------------------------------------------- On January 29, 2009, New Leaf Brands, Inc., was notified that it was named as a defendant, along with 54 other defendants, in a class action lawsuit under California Proposition 65 for allegedly failing to disclose the amount of lead in one of its products. The Company has responded to discovery requests from the Attorney General of California. To date, no trial date has been set. The Company is currently investigating the merits of the allegation and is unable to determine the likelihood of an unfavorable outcome or a range of possible loss. This matter remains pending. No further updates were reported in the Company's July 18, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2011. NEWS CORP: Board Faces Class Action Over Phone Hacking Scandal -------------------------------------------------------------- Courthouse News Service reports that Rupert Murdoch is lead defendant in a shareholder class action accusing him of costing News Corp. millions of dollars by the British phone hacking scandal, and of enriching himself and his family at shareholders' expense. A copy of the Complaint in Massachusetts Laborers' Pension & Annuity Funds v. Murdoch, et al., Case No. 6671 (Del. Ch. Ct.), is available at: http://www.courthousenews.com/2011/07/19/Murdoch.pdf The Plaintiff is represented by: Christine S. Azar, Esq. Charles B. Vincent, Esq. LABATON SUCHAROW LLP 300 Delaware Avenue, Suite 1225 Wilmington, DE 19801 Telephone: (302) 573-2530 E-mail: cazar@labaton.com - and - Christopher J. Keller, Esq. Michael W. Stocker, Esq. Iona Evans, Esq. LABATON SUCHAROW LLP 140 Broadway New York, NY 10005 Telephone: (212) 907-0700 E-mail: ckeller@labaton.comc mstocker@labaton.com ievans@labaton.com PFIZER INC: Dec. 31 Deadline Set for Fen-Phen Class Action ---------------------------------------------------------- Petroff & Associates said that while the legal chapters on fen-phen will soon close forever, the effects of the once-popular diet drug will remain for years to come. An estimated six million Americans took the diet drug commonly known as fen-phen in the late 1990s, and approximately 400,000 of them registered for a $4.8-billion nationwide class action settlement in 1999. But many eligible members of the class may not know they will soon lose all rights to seek additional cash benefits unless they are diagnosed with and experience a qualifying medical condition, such as heart valve surgery, by the earlier of Dec. 31, 2011, or 15 years after their last date of diet drug usage. "Unless class members see a physician to evaluate their heart health and have any necessary surgeries before the 2011 deadline, they could miss out on the money they deserve to deal with the debilitating, life-long health issues stemming from taking fen- phen," said Kip Petroff, founder of Dallas-based law firm Petroff & Associates, who has represented more than 10,000 fen-phen clients since 1997. "After the 2011 deadline, settlement funds designated for fen-phen victims and their relatives could revert back to the pharmaceutical company. I'm confident Americans adversely affected by fen-phen do not want to see this happen." What is a qualifying medical condition? Members of the fen-phen class action settlement can file for "progression benefits" if they experience one of the following situations before his/her individual deadline expires this year: -- Heart valve surgery; -- Recommended heart valve surgery by a doctor, but surgery cannot be performed due to medical conditions; -- Heart failure, heart arrhythmias, stroke or pulmonary hypertension that results in a person's demise; -- Residual problems caused by a stroke, lasting for a period of at least six months; -- Blood clot causing kidney damage with dialysis, abdominal surgery or amputation of an arm or a leg; -- Heart transplant; -- Ventricular fibrillation or ventricular tachycardia; -- Endocardial fibrosis; -- Coma due to cardiac arrest; and -- Complications or worsening of the heart, lung or valve conditions following a valve surgery. "The list of side effects from fen-phen usage has had ripple effects across the nation," Mr. Petroff said. "Not only has it increased scrutiny on diet drugs brought to market and caused physicians to think twice about recommending diet drugs, but it also has served as a landmark class action settlement for the legal industry." What class members are eligible for compensation? There are three audiences within the class action settlement who are eligible to qualify for progression benefits and additional compensation: * Surgery/ill patients - those who need heart valve surgery or have had valve surgery, or experienced other serious heart or lung conditions after taking fen-phen * Surgery candidates - those who are candidates for valve surgery but may not know it * Family - relatives/heirs of fen-phen victims who have died "Over the past decade, we have helped thousands of victims who are sick, most commonly from heart valve leakage, resulting from previous fen-phen usage. Many of them are unaware that heart disease has occurred or worsened over time," Mr. Petroff said. "Regardless of how healthy or sick you may feel today, if you took fen-phen, it's important to request a heart screening as soon as possible. Previous and current diet drug use, especially fen- phen, is an essential piece of information to discuss with your doctor before your deadline." How to file a claim? First, individuals must determine if they -- or a family member who has died -- are included in the "Nationwide Class Action Settlement Agreement with American Home Products" and have a personal "Diet Drug Recipient Number." Individuals may contact the Trust at 1-800-481-7947 or http://www.7thamendmentdietdrugs.com Class members must have registered with the AHP Settlement Trust by filing a "Blue" Form or a "Green" Form on or before May 3, 2003. Anyone who filed the necessary paperwork in 2003 has the right to try to prove that they meet the criteria for additional compensation. No new claimants are permitted. Second, they must determine whether they qualify for progression benefits. There is a questionnaire and additional information on the Petroff & Associates' Web site that will help individuals determine whether they may qualify for progression benefits and a cash settlement. "Filing a claim is a complicated and confusing process, even for many attorneys," Mr. Petroff said. "There is a stack of documents the size of a phonebook that you need to understand when presenting a claim, and the average claim can take up to a year to be resolved even if it's uncontested. For 15 years, we have been helping fen-phen victims successfully navigate this difficult process and collect the monetary benefits they deserve." To file a claim, qualified class members must prove they took fen-phen and had an echocardiogram by the end of the screening period, Jan. 3, 2003, that showed at least mild leakage from the mitral or aortic heart valve. While fen-phen class members must experience a qualifying event before the 2011 deadline to be eligible for a cash settlement, they can file a claim the later of Nov. 8, 2014, or four years after the qualifying medical event occurs. Fen-Phen Background Fen-phen was an off-label combination of phentermine, a speed-like drug that is still on the market, with either Redux (dexfenfluramine) or Pondimin (fenfluramine). American Home Products Corp. (AHP) marketed Redux and Pondimin through its Wyeth-Ayerst Laboratories Division, now a part of Pfizer Inc. AHP and Wyeth withdrew Redux and Pondimin from the market on Sept. 15, 1997, at the request of the Food and Drug Administration (FDA). After the drugs were withdrawn, more than 400,000 people registered for a class action settlement to compensate those who took fen-phen and suffer from heart valve damage. As part of the settlement, relatives/heirs of fen-phen victims can and have obtained monetary compensation for the death of loved ones harmed by the diet drug. About Petroff & Associates The law firm of Petroff & Associates -- http://petroffassociates.com-- is one of the most experienced law firms in the country regarding fen-phen litigation. Since 1997, the law firm has represented thousands of people nationwide against American Home Products Corp. for various types of injuries associated with the weight loss drugs fen-phen, Pondimin and Redux. The firm was founded and is led by Kip Petroff, who has written a book recounting his personal experiences with the on- going fen-phen litigation. RADIANT SYSTEMS: Being Sold to NCR for Too Little, Suit Claims -------------------------------------------------------------- Courthouse News Service reports that Radiant Systems is selling itself too cheaply to NCR Corp., for $1.2 billion or $28 a share, Radiant shareholders say in a class action. A copy of the Complaint in Oakland County Employees' Retirement System v. Goren, et al., Case No. 2011CV203324 (Ga. Super. Ct., Fulton Cty.), is available at: http://www.courthousenews.com/2011/07/19/SCA.pdf The Plaintiff is represented by: Martin D. Chitwood, Esq. Christi A. Cannon, Esq. Molly A. Havig, Esq. CHITWOOD HARLEY HARNES LLP 2300 Promenade II 1230 Peachtree Street, NE Atlanta, GA 30309 Telephone: (404) 873-3900 Email: mchitwood@chitwoodlaw.com ccannon@chitwoodlaw.com mhavig@chitwoodlaw.com - and - Jeffrey W. Golan, Esq. Julie B. Palley, Esq. BARRACK, RODOS & BACINE 3300 Two Commerce Square 2001 Market Street Philadelphia, PA 19130 Telephone: (215) 963-0600 E-mail: jgolan@barrack.com jpalley@barrack.com RENFREW POWER: Lake Water Level Mismanagement Suit Can Proceed -------------------------------------------------------------- Tony Pearson, writing for Barry's Bay, reports that a group of Round Lake property owners has won the right to take Renfrew Power Generation to court in a possible class action for persistent mismanagement of water levels on the lake, which the plaintiffs contend has directly damaged their property. The case arises out of the original 'license of occupation' given to produce hydro power by the Ontario government back in 1917, and taken over by Renfrew Power in 1931. This license states the operator of the dam must not let the lake level rise more than eight feet over its original, pre-dam level. Coalition 108, the committee of cottagers and land owners who have brought the legal action, say this level has been exceeded almost half the time, rising too high in 17 out of the last 40 years. A calamitous flood in 2008, which wrought extensive damage to many lakeside properties and houses, galvanized the group into action. This year's experience, where water levels became destructive as a result of high winds, gave them further incentive. According to group spokesperson Don Brohart, bad management rather than nature is to blame for such damage. "Too many times, Renfrew Power has done too little too late," he says. "While Ontario Power Generation takes extensive measures to predict the levels which the spring melt will produce, Renfrew Power often seems to function by optimistic guessing and hoping. It's been proven to them the same power can be produced by a more measured control of the flow, but they've ignored this. The Ministry of Natural Resources doesn't seem inclined to protect the lake, even though they have property on it (Foy Park, heavily eroded this year). So we decided to take them to court." The core of Coalition 108's case is that in allowing water levels to rise too high, Renfrew Power has effectively trespassed on their lands -- allowing the water to come onto private property, when it wouldn't have if the Bonnechere River were flowing normally. The flow is regulated by the Round Lake dam: taking out logs increases the downstream transit of the water, while leaving the dam fully up causes lake waters to back up. The judge's ruling opens the door to an "Erin Brockovitch"-style class action lawsuit. Coalition 108 contains 143 people, but if a class action were allowed, virtually any one of the approximately 450 lake property owners could also join in, if they can prove their property has suffered damage as a result of Renfrew Power mismanagement. Recovering the cost of property damage is only one of the coalition's three goals. Mr. Brohart says, "Our main hope is to get the court to rule Renfrew Power may not allow lake levels to rise unreasonably. We aren't trying to drain the lake, just have sensible action taken in the spring, summer, and fall to make sure that property is safe, while at the same time ensuring fish stocks are protected, and there are plenty of opportunities for safe recreation on the lake." The other goals of the coalition's legal action are to recover some of their legal costs -- which to date have amounted to about C$100,000 -- and if possible to get property damages compensated. Renfrew Power Generation is a wholly owned subsidiary of the Town of Renfrew. RH DONNELLEY: Court Denies Motion to Dismiss Shareholders Suit -------------------------------------------------------------- Judge Michael M. Baylson of the U.S. District Court for the District of Delaware rejected a request to dismiss a consolidated securities class action complaint against executives of R.H. Donnelley, captioned Local 731 I.B. of T. Excavators and Pavers Pension Trust Fund, et al. v. David C. Swanson, et al., Civil Action No. 09-799 (D. Del.). Lead Plaintiff Zhengxu brought the class suit on behalf of individuals who purchased or acquired the publicly traded securities of RHD between October 2006 and May 2009. The named defendants are David C. Swanson, the Chairman of the Board and CEO of RHD during the Class Period; Steven M. Blondy, the Executive Vice President and Chief Financial Officer of RHD during the Class Period; Peter J. McDonald, the President and Chief Operating Officer of RHD from October 27, 2004, until his retirement on Sept. 1, 2008; and George F. Bednarz, the Executive Vice President of Enterprise Sales and Operations for RHD from June 2008 through the end of the Class Period. RHD was a publisher of print yellow pages directories and provider of online local commercial search tools. The class suit alleges that the Defendants deliberately misrepresented the financial performance of RHD, including the viability of its yellow pages publishing business, resulting in artificial inflation of RHD's stock price until the market learned the truth and the stock price tumbled. The Defendants sought to dismiss the class suit for failure to state a claim. Judge Balyson found that Plaintiff has pled with particularity the identity of its confidential sources, who support Plaintiff's claim that Defendants possessed knowledge about the true condition of RHD's yellow pages business. The Court also found that the Complaint adequately alleges material misrepresentations and omissions under Section 10(b) of the Securities Exchange Act of 1934. Based on the information from confidential sources and documents cited in the Complaint, the Court found that the Complaint sufficiently pleads with particularity that Defendants had scienter -- "a mental state embracing intent to deceive, manipulate, or defraud." Judge Balyson did not dismiss claims at this stage pursuant to the safe harbor provision of the Private Securities Litigation Reform Act of 1995. The District Court noted that the cautionary "Safe Harbor Statements" in the Defendants' media presentations are inadequate to protect Defendants because they are not tailored to the specific future projections, estimates or opinions that Plaintiff challenges in the lawsuit. To establish a violation of Section 20(a) of the Securities Exchange Act, a plaintiff must prove that one person controlled another person or entity and that the controlled person or entity committed a primary violation of the securities laws. The District Court is convinced that the Complaint states a claim against Defendants under Section 20(a). The Complaint alleges that RHD engaged in fraud and that Defendants had high-level positions within the Company. Furthermore, Defendants participated in or were aware of RHD's operations, and influenced and controlled RHD's operations and decision-making, including the content and dissemination of its press releases, SEC filings, and conference calls. A copy of the District Court's June 14, 2011, memorandum is available for free at http://is.gd/V92eCEfrom Leagle.com. RJ REYNOLDS: Appeal From $28.3MM Tobacco Suit Verdict Rejected -------------------------------------------------------------- Bob Van Voris, writing for Bloomberg News, reports that Florida's Supreme Court declined to hear R.J. Reynolds Tobacco Co.'s appeal of a $28.3 million verdict in a case that the cigarette maker argued may affect thousands of so-called Engle tobacco claims in the state. The court, in a one-page order on July 19, turned aside the company's bid for an appeal of the 2009 verdict in favor of Mathilde Martin, who claimed her husband, Benny Ray Martin, died from a smoking-related disease. The decision leaves in place a lower state appeals court ruling that affirmed the verdict. Reynolds, a unit of Winston Salem, North Carolina-based Reynolds American Inc. (RAI), sought to have the Florida Supreme Court review the lower appeals court ruling, arguing that the trial court misapplied a 2006 decision by the Florida Supreme Court in the Engle case. The Engle decision ended a statewide class action filed on behalf of Florida smokers. In the 2006 ruling, named after Howard Engle, the lead plaintiff in the class action, the court said that some jury findings in the case could be applied by former class members who file individual claims. Reynolds to Appeal David Howard, a spokesman for R.J. Reynolds, said the company is disappointed the Florida Supreme Court won't review the lower court's decision, which he said deprived the company of its constitutional right to a fair trial. Reynolds will try to appeal to the U.S. Supreme Court, Mr. Howard said. "This signals that Engle remains good law, now and forever, in Florida," said Matt Schultz, a lawyer for Mrs. Martin. Altria Group Inc. (MO)'s Philip Morris USA unit, the biggest U.S. cigarette maker, faces claims from about 8,900 Engle plaintiffs, the company said in its most recent quarterly filing with the Securities and Exchange Commission. About 8,600 have filed claims against Reynolds, the company said in its quarterly SEC filing. About half the claims are filed in state court, half in federal court. Smokers and their families have won verdicts in about two-thirds of the 44 or more Engle claims tried to verdict, including one for $80 million against Reynolds in November. Mr. Engle, a Florida pediatrician who died in 2009, was the lead plaintiff in a statewide class action filed in 1994 on behalf of smokers who were addicted to nicotine and developed cancer or other smoking-related illnesses as a result. Three-Phase Trial In the first part of what was intended to be a three-phase trial, a Miami jury decided a series of common questions relating to the companies' conduct and to the health effects of smoking. In the second phase, the jury awarded $145 billion in punitive damages to the class. In its 2006 ruling, the Florida Supreme Court rejected the $145 billion verdict and ruled that the case couldn't continue as a class action. At the same time, Florida's high court upheld most of the Phase I factual findings and said they would apply in all of the individual suits filed by smokers who had been part of the Engle class. The U.S. Supreme Court declined to review the case. The Engle findings, which include that the companies sold defective products, concealed the dangers of smoking and acted negligently, typically are read to jurors by Florida judges in cigarette liability cases. The companies argue that trial judges, in the Martin case and others, have applied the findings too broadly and aren't requiring smokers to prove all the elements of their claims. Benny Martin, a long-time smoker of Lucky Strike cigarettes, died of lung cancer in 1995. A jury in Pensacola, Florida, found Reynolds 66% responsible and Mr. Martin 34% responsible, awarding $3.3 million plus $25 million in punitive damages. The case is R.J. Reynolds Tobacco Co. v. Martin, SC11-483, Florida Supreme Court (Tallahassee). SHARPER IMAGE: Gift Cardholders to Get Reimbursement ---------------------------------------------------- WOOD TV8 reports that a recent class action lawsuit against electronics retailer Sharper Image is breaking new ground and paying back gift cardholders despite the fact the company declared bankruptcy. Sharper Image was best known for selling novelty gadgets -- a business model that would prove impossible to maintain in an economic recession. The company filed for bankruptcy in February 2008. At the time of that bankruptcy, about 500,000 people held Sharper Image gift cards totaling $19 million in unredeemed value, and there was little hope of getting any value out of them. In most cases, gift cardholders are out of luck if a retailer goes out of business. But, a recent class action lawsuit filed by Chicago law firm Krislov & Associates has bucked that trend. This is a first, according to the firm's owner Clint Krislov. "This is really the first time that anyone has achieved recovery for gift cardholders in a bankruptcy," Mr. Krislov said. "It is sort of like Christmas in July." The bottom line: there is money out there for people who purchased gift cards from Sharper Image before it filed for bankruptcy -- even if you don't have your card anymore. The United States Bankruptcy Court for the District of Delaware has set aside about $2 million in Sharper Image assets to reimburse gift cardholders. Gift cardholders can file a claim online at http://www.sharperimagegiftcards.com How much? If a gift cardholder still has the gift card, he or she may be able to redeem the entire value of the card. If the cardholder does not, the maximum possible claim is $100. The deadline to file a claim is Sept. 1. A word of warning: if people file false claims, the dollar amount available for reimbursement to valid claimants may drop substantially. It is not known at this time if this case will have any impact on other bankruptcy cases. SIRIUS XM: CCAF Objects to Class Action Settlement -------------------------------------------------- According an article posted at Point of Law by Ted Frank, the Center for Class Action Fairness LLC on July 19 objected to a valueless class action settlement: the objection, filed in the Southern District of New York on behalf of a class member, underscores that the proposed Sirius XM Radio settlement would provide valueless injunctive relief to the class but $13 million to class attorneys. "Certainly, parties to a class action can agree to settle a case for $13 million," said Ted Frank, the lead attorney on the objection and the founder of CCAF. "But if they do, it is inherently unfair and unreasonable for the attorneys to extract 100% of the settlement benefit for themselves. Class actions should be prosecuted on behalf of the class members, not self- serving class counsel." The settlement of the antitrust class action against Sirius XM requires only that the defendant agree to not raise prices for five months. But this is an entirely valueless promise, given that Sirius XM, facing admittedly heavy competition from Internet music services and MP3 players, has been lowering prices and engaging in deep discounting to keep customers. Yet class counsel (including the Milberg law firm) implausibly claims that the settlement is worth $180 million to the class. The CCAF objection also targets Judge Harold Baer's class certification order. For several years, Judge Baer has controversially required class counsel to meet racial quotas as a condition of appointment. CCAF has requested that Judge Baer vacate that part of his class certification order as unconstitutional. The case is Blessing v. Sirius XM Radio Inc., No. 09-cv-10035 (S.D.N.Y.). The Center for Class Action Fairness, founded in 2009, is a not- for-profit program that provides pro bono representation to consumers and shareholders aggrieved by class action attorneys who negotiate settlements that benefit themselves at the expense of their putative clients. It has won millions of dollars for class members over the last two years. SPRINT: Settles Class Action Over Auto-Dial Calls for $5.5 Mil. --------------------------------------------------------------- Maisie Ramsay, writing for CedMagazine.com, reports that Sprint has agreed to a $5.5 million settlement in a class-action lawsuit over auto-dial calls placed in 2007 to its customers in Washington State, the law firm that led the case, Williamson & Williams, announced on July 18. The suit alleged that Sprint had violated the state's Consumer Protection Act by sending auto-dialed prerecorded messages to its customers even after they asked to stop receiving the calls. Sprint argued Washington's state laws over the calls were preempted by federal regulations but agreed to settle the suit in April without admitting its culpability. "Sprint agreed to settle this case, determining this action would be in the best interest of our customers and our business," a Sprint spokesman said on July 19. "In the settlement, Sprint does not acknowledge liability, nor admit any violations. Sprint places a high priority on respecting the wishes of our customers about how they prefer to be contacted." In addition to the financial settlement, Sprint also agreed to change a pre-recorded message provided to customers who called the operator in response to a promotional call. Washington resident Sandra Palmer, a Sprint customer who received auto-dial calls for "several weeks" after asking the messages to stop, filed a class-action suit over the calls in 2009. Customers covered by the suit are eligible to receive between $100 and $500 per call, up to $4,400. The complaint encompasses Sprint customers between July 23, 2005, and June 13, 2011, in Washington State who received auto-dial solicitations less than one year after asking the operator to stop the calls, as well as Sprint customers in the United States who received solicitation calls more than 30 days after requesting a stop to the messages. The settlement received preliminary approval from a district judge in Seattle last month. TORONTO COMMUNITY: Wellesley Fire Suit Gets Class Action Status --------------------------------------------------------------- Alyshah Hasham, writing for Toronto Star, reports that some victims of the six-alarm apartment fire at 200 Wellesley St. E. last September could be a step closer to getting compensation. Their C$80 million class-action lawsuit will proceed against Toronto Community Housing Corporation (TCHC) and Greenwin Property Management Inc., after Justice Paul Perell certified the bid on July 18. "This certification is a great victory for the residents of 200 Wellesley and a testament to the resilience and patience of about 50% of the residents who are hoping that this process will result in a fair treatment in the losses they have had since Sept. 24," said lawyer Brian Shell. The class-action representative Jo-Anne Blair lived on the 24th floor of the 29-storey building, opposite an apartment where she says a man was hoarding paper. That apartment became the site of a ferocious six-alarm fire that took firefighters 12 hours to quell and forced 1,200 tenants out of their homes, and 200 into makeshift shelters. Many residents weren't able to return to their homes for months. Seventeen people -- including five children and three firefighters -- were injured in the blaze. The judge ruled that Ms. Blair qualifies to lead the lawsuit, though the defendants argued her anger and personal claim made her unfit to represent her fellow residents. TCHC offered residents of 200 Wellesley base amounts of $3,300 if they live in a bachelor suite and C$5,300 for a two-bedroom apartment. If they accepted, residents had to agree not to go ahead with the class action or take further legal action. This prompted a free legal clinic for Wellesley residents to shut down in protest in December, calling the compensation offer unfair because it put too much pressure on the residents to sign. With the lawsuit, residents may get C$25,000 per one-bedroom apartment, which minus legal fees, is about C$17,000 according to National Fire Adjustment Co., a company working with Shell on the lawsuit. U.S. RECORD LABELS: Digital Music Price-Fixing Suit Can Proceed --------------------------------------------------------------- Adam Klasfeld at Courthouse News Service reports that major record labels must face a consolidated class action lawsuit claiming they fixed prices on digital music, a federal judge ruled. The defendants include Bertelsmann, Sony BMG Music Entertainment, Sony Corporation of America, Capitol Records (dba EMI Music North America), EMI Group North America, Capitol-EMI Music, Virgin Records America, Time Warner, UMG Recordings and Warner Music Group, which allegedly control 80% of the digital music in the United States. Consumers claim in the proposed class action that all of the labels signed distribution agreements with two joint-venture entities called MusicNet and Pressplay, through which they allegedly conspired to fix the price, terms of sale and restrictions on digital music. Each licensing agreement allegedly included publicly hidden Most Favored Nation clauses, guaranteeing that one licensor would receive at least equivalent licensing terms as another licensor. In effect, these agreements set wholesale price floor at 70 cents per song for Internet music, increasing prices as the cost to distribute Internet music fell to essentially zero, consumer class says. In addition, the labels allegedly included digital-rights management, restricting how songs get transferred to portable players. The labels allegedly hoped to make digital music an unattractive substitute for overpriced CDs. Retailers that did not comply with the labels' agreements allegedly got shut out by the labels. An independent competitor in the online music business, eMusic, is the second-largest online retailer and charges less than half of the labels' wholesale price at retail, but the labels refuse to do business with it, the consumer class says. Dozens of plaintiffs filed lawsuits in multiple districts. The first consolidated class action was filed in April 2007, and then amended two months later. U.S. District Judge Loretta Preska tossed the original complaint, in a decision that was vacated and remanded back to her court on appeal. The consumer class filed a third amended complaint on June 2, 2010. On July 18, Judge Preska allowed the consumer class to pursue claims under the Sherman Act, the 19th century legislation that was the first federal statute to limit monopolies. An antitrust action under New York state law and certain consumer-protection and unjust-enrichment claims also survived dismissal. Judge Preska tossed claims related to a putative CD-purchaser class. Multiple lawyers for both parties did not immediately respond to telephone requests for comment. A copy of the Opinion & Order in In Re Digital Music Antitrust Litigation, Case No. 06-md-01780 (S.D.N.Y.), is available at: http://is.gd/Zs2QIk U.S. TITLE INSURERS: Judge Orders Arbitration in Monopoly Suit -------------------------------------------------------------- Brett Goncher, writing for Westlaw Journal Insurance Coverage, reports that a class-action dispute over whether the nation's largest title insurers and their affiliates monopolized California's title insurance market should be arbitrated in light of a recent U.S. Supreme Court decision, a federal judge in San Francisco has ruled. U.S. District Judge Jeffrey S. White of the Northern District of California agreed with five title insurance companies and their affiliates that the Supreme Court's ruling in AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011), allowed the court to enforce the arbitration agreements in policyholder contracts. The Federal Arbitration Act, 9 U.S.C. Sec. 2, requires courts to enforce arbitration agreements as any other contract and favors arbitration. California's consumer protection law prohibits contract provisions that ban class-action arbitration, but Concepcion held that the Federal Arbitration Act preempts state law. Many lenders require homebuyers to purchase title insurance to protect against the risk of legal challenges to the homebuyer's ownership of the property and the lender's position as the first lienholder of the property. As the nation's foreclosure crisis continues, many title insurance companies have faced scrutiny over their businesses and procedures. The plaintiffs alleged that competition among the title insurers is based on kickbacks and other inducements to real estate agents, rather than providing the lowest rates for policyholders. The first-named plaintiff, Lynn Baron, purchased a title insurance policy that included an agreement to arbitration disputes. In March 2008, she filed a class-action complaint against title insurers Fidelity National Financial Inc., Ticor Title Insurance Co., First American Title Insurance Co., Stewart Title Guaranty Co., Old Republic National Title Insurance Co. and several of their affiliates in California federal court. Her complaint stated claims for unjust enrichment and violations of the Sherman Act, 15 U.S.C. Sec. 1, and Cal. Bus. & Prof. Code Secs. 16720 and 17200. The complaint asserted that a handful of insurers dominate the title insurance market, collectively controlling over 90% of the California market, and that they participate in a self-regulating trade association to illegally fix rates at excessive levels. The complaint also said the insurers pay illegal rebates and kickbacks to real estate agents, lenders and builders instead of soliciting business directly from homebuyers. The District Court consolidated the case with about a dozen others against the title insurers. In May, the insurers filed a joint motion to compel arbitration, arguing that Concepcion mandated that the court enforce the arbitration agreement. Judge White granted the motion and stayed the class-action suit pending completion of arbitration. Concepcion found that federal law preempted the California law barring arbitration of class actions, he said. The judge excused the insurers' failure to raise the arbitration issue earlier in the case, noting it would have been futile before Concepcion was decided. Finally, he ruled that although the case had been litigated for some time, "substantive discovery has only recently commenced, and the trial is not set for well over a year." Therefore, the plaintiffs "failed to establish either that defendants had knowledge of an existing right to compel arbitration or that they would suffer prejudice from inconsistent acts," he said. In re California Title Insurance Antitrust Litigation, No. 3:08- CV-01341, 2011 WL 2566449 (N.D. Cal., June 27, 2011). ZENIMAX MEDIA: Sued Over Defectively Designed Video Game -------------------------------------------------------- Courthouse News Service reports that a federal class action claims Zenimax Media/Bethesda Softworks' "Elder Scrolls IV: Oblivion" game is plagued with technical glitches that ruin the game. A copy of the Complaint in Walewski v. ZeniMax Media, Inc., et al., Case No. 11-cv-01178 (M.D. Fla.) (Antoon, J.), is available at: http://www.courthousenews.com/2011/07/19/VideoGame.pdf The Plaintiff is represented by: Steven W. Teppler, Esq. EDELSON MCGUIRE LLC 5715 Firestone Court Sarasota, FL 34238 Telephone: (941) 487-0050 E-mail: steppler@edelson.com - and - Jay Edelson, Esq. Rafey Balabanian, Esq. Bradley Baglien, Esq. EDELSON MCGUIRE LLC 350 North LaSalle Street, Suite 1300 Chicago, IL 60604 Telephone: (312) 589-6370 E-mail: jedelson@edelson.com rbalabanian@edelson.com bbaglien@edelson.com Asbestos Litigation ASBESTOS UPDATE: Chase Still Subject to Inactive Scott Lawsuit -------------------------------------------------------------- Chase Corporation is one of over 100 defendants in a lawsuit filed on behalf of James T. Scott and is pending in Ohio, according to the Company's quarterly report filed with the Securities and Exchange Commission on July 7, 2011. The suit alleges personal injury from exposure to asbestos contained in certain Chase products. The case is captioned Marie Lou Scott, Executrix of the Estate of James T. Scott v. A-Best Products, et al., No. 312901 in the Court of Common Pleas for Cuyahoga County, Ohio. The plaintiff in the case issued discovery requests to the Company in August 2005, to which the Company timely responded in September 2005. The trial had initially been scheduled to begin April 30, 2007. However, that date had been postponed and no new trial date has been set. As of May 2011, there have been no new developments as this Ohio lawsuit has been inactive with respect to the Company. Headquartered in Bridgewater, Mass., Chase Corporation's Specialized Manufacturing segment consists of specialty tapes, laminates, sealants and coatings. ASBESTOS UPDATE: Chase Still Involved in Jansen Lawsuit in Wis. --------------------------------------------------------------- Chase Corporation, since June 25, 2009, is a defendant in a complaint captioned Lois Jansen, Individually and as Special Administrator of the Estate of Thomas Jansen v. Beazer East, Inc., et al., No: 09-CV-6248 filed in the Milwaukee County (Wisconsin) Circuit Court. The plaintiff alleges that her husband suffered and died from malignant mesothelioma resulting from exposure to asbestos in his workplace. The plaintiff has sued seven alleged manufacturers or distributors of asbestos-containing products, including Royston Laboratories (formerly an independent company and now a division of the Company). The Company has filed an answer to the claim denying the material allegations in the complaint. The parties are currently engaged in discovery. Headquartered in Bridgewater, Mass., Chase Corporation's Specialized Manufacturing segment consists of specialty tapes, laminates, sealants and coatings. ASBESTOS UPDATE: Hartford Increases After-Tax Reserves by $189MM ---------------------------------------------------------------- Items impacting The Hartford Financial Services Group Inc.'s 2011 second quarter results include a reserve increase of US$290 million, pre-tax, or US$189 million, after tax, resulting from the Company's annual review of its legacy asbestos liabilities, according to a Company press release dated July 13, 2011. The increase was primarily driven by higher frequency and severity of mesothelioma claims, particularly against certain smaller, more peripheral insureds. On July 13, 2011, the Company announced preliminary results for the second quarter of 2011. The Company expects to report net income of about US$24 million and core earnings of about US$12 million. Headquartered in Hartford, Conn., The Hartford Financial Services Group Inc. provides insurance and wealth management services for millions of consumers and businesses worldwide. ASBESTOS UPDATE: Boston Univ. Fined $74,250 for Cleanup Breaches ---------------------------------------------------------------- The Massachusetts Department of Environmental Protection has penalized the Trustees of Boston University US$74,250 for asbestos violations that occurred in the spring of 2010 at three of its Boston properties, according to a MassDEP press release dated July 12, 2011. The violations were found at Robinson Medical Building at 15 Stoughton Street, the Student Union at 775 Commonwealth Avenue, and a residence hall at 273 Babcock Street. Richard Chalpin, director of MassDEP's Northeast Regional Office located in Wilmington, said, "The failure to submit a demolition notification in this instance resulted in asbestos-containing materials being removed without adequate controls in place, and the resultant release of asbestos fibers clearly represented an unacceptable health threat to anyone exposed in the impacted area." Initially, MassDEP responded to a complaint at the Robinson Building and found demolition and asbestos abatement had commenced in two areas of the building, without the required notification. A failure to submit the proper notification prior to commencing demolition work resulted in asbestos-containing materials being removed from this work area without the required protection - such as wetting down the material to curtail emissions - and without the use of a sealed work area to prevent outside areas becoming contaminated. In addition, there was no air cleaning devices, and the asbestos- containing materials were improperly packaged. MassDEP inspected another BU building, the Student Union site, on June 2, 2010 along with the City of Boston's Office of Environmental Affairs. MassDEP observed additional demolition and renovation work, and asbestos abatement had also commenced there. This work, which had also been initiated without the proper notification, resulted in the improper removal of asbestos- containing flooring materials without first sealing the work area and installing the required air-cleaning devices, and with the material being improperly packaged. MassDEP responded to a third BU location, the Babcock Street site, on June 3, 2010. During that inspection, MassDEP determined that work had also commenced on demolition activity at the site without notification. Samples taken from the work area indicated that asbestos-containing materials had been removed during that demolition as well. In each of these locations, BU was ordered to cease further activities - other than to immediately secure the site - and then submit a testing and decontamination plan to MassDEP for approval. MassDEP subsequently approved and oversaw the cleanup of these properties, all of which were done in compliance with state and federal regulations. As a result of the violations observed by MassDEP at these three sites, however, BU has been penalized US$74,250. MassDEP has agreed to suspend US$30,750 of the total penalty provided there are no additional violations over the next one-year period. ASBESTOS UPDATE: Ill. Judges Hold Hearings on Consolidated Cases ---------------------------------------------------------------- On July 13, 2011, Fifth District appellate judges heard oral arguments in four consolidated St. Clair County, Ill., asbestos cases being challenged on forum, The Madison/St. Clair Record reports. Arguing for defendants, Robert Shultz, Esq., of Edwardsville, Ill., said cases involving plaintiffs from Missouri, Indiana, Wisconsin and Pennsylvania that were accepted by former Circuit Judge Patrick Young have no meaningful connection to the state of Illinois. For the plaintiffs, Edward Kionka, Esq., of Carbondale, Ill., said defendants, which number from 40-70 in each case, have not shown that some other venue is more convenient. Mr. Kionka argued that the 60-year-old forum non conveniens doctrine has a different meaning in a 21st century that offers digital technology and instant communication. The cases were filed in 2010 by Judy Cates and David Cates of Swansea, Ill., in association with Mr. Kionka and Chicago lawyers John Cooney, Esq., and Kevin Conway, Esq. In the meantime, St. Clair County Associate Judge Andrew Gleeson dismissed four other asbestos cases on June 9, 2011 on defendants' forum non conveniens motion. ASBESTOS UPDATE: Court Seeks Former DuPont Employee's Testimony --------------------------------------------------------------- Ann Skelton, on July 11, 2011, filed a petition in Jefferson County District Court to perpetuate the testimony of Robert Skelton, a former DuPont De Nemours employee who suffers from asbestos-related lung cancer, The Southeast Texas Record reports. The petition states that Mr. Skelton was exposed to asbestos during his employment with DuPont and now suffers from "asbestos- related lung diseases." The petition does not give dates of employment. Beaumont, Tex., attorney Keith Hyde, Esq., of the Provost & Umphrey Law Firm represents Ms. Skelton. Judge Donald Floyd, 172nd District Court, has been assigned to Case No. E190-487. ASBESTOS UPDATE: Market Rasen Probed Over GBP63,465 Cleanup Bill ---------------------------------------------------------------- The local authority in Market Rasen, Lincolnshire, England, recently debated the "ludicrous" GBP63,465 spent in 2010 by Market Rasen Town Council to clear asbestos littered soil from Mill Road Playing Field, the Market Rasen Mail reports. In 2010, the Rasen Mail reported that soil, due to be used to create a new BMX track in Mill Road Playing Field, was found to be contaminated with asbestos. The Council has now published its accounts for the last 12 months and came under fire during public question time at its meeting last July 13, 2011 for spending more than GBP63,000 on removing the waste. Archie Farrow said, "GBP63,465 is a ludicrous amount of money. Why was this soil allowed to be delivered and dumped on our playing field. Why did the Council pay GBP63,000 for it to be taken away when you must have known who flytipped it." Mayor Ken Bridger said that in hindsight mistakes were made, but that the soil had come from a number of locations in the surrounding area, mainly top soil from farms, and it was not possible to ascertain where the asbestos had come from. The Council did seek legal advice, Councilor Bridger said, but could not recover its costs because no formal contract was made for the soil's delivery. Councilor Graham Bower said he was still concerned by the mayor's answer and why the Council had paid for the asbestos to be removed and not those who delivered it, but was told it had to be dealt with by specialists, which made it a costly process. ASBESTOS UPDATE: St Albans Man's Death Linked to Hazard Exposure ---------------------------------------------------------------- An inquest held last July 14, 2011 heard that the death of Geoffrey Culverhouse, of Robert Avenue, St. Albans, England, was related to workplace exposure to asbestos, the St. Albans & Harpenden Review reports. Mr. Culverhouse, who was exposed to asbestos for 25 years of his working life, suddenly died at his home on June 6, 2011. He was diagnosed with mesothelioma earlier in 2011 and died at the age of 80. The cancer was picked up by doctors at Mount Vernon Hospital, Northwood, in February 2011, after which Mr. Culverhouse was cared for by Macmillan nurses. Coroner for Hertfordshire Edward Thomas explained how Mr. Culverhouse was exposed to the deadly dust while working as a manual engineer between 1946 and 1971. Mr. Thomas recorded a cause of death of industrial disease. ASBESTOS UPDATE: Davalie's Lawsuit Filed in La. Court on July 9 --------------------------------------------------------------- Katrine Davalie, on July 9, 2011, filed an asbestos lawsuit against various defendant corporations on behalf of her late husband, Tookie A. Davalie -- a career merchant mariner, in federal court in New Orleans, La., The Louisiana Record reports. According to the complaint, Mr. Davalie was constantly exposed to asbestos friable fibers, causing him to breathe into his system carcinogenic asbestos dust. The various defendants are accused of maintaining each respective vessel in an unsafe, unseaworthy condition causing the crewmen exposure to toxic chemicals and carcinogens including to friable asbestos and second hand exposure to cigarette and tobacco smoke. Mrs. Davalie is represented by New Orleans attorney John Michael Lawrence, Esq. U.S. District Judge Sarah S. Vance is assigned to Case No. 2:11- cv-01613. ASBESTOS UPDATE: Del. Court Rules Against Price in DuPont Action ---------------------------------------------------------------- On July 11, 2011, the Delaware Supreme Court ruled 3 to 2 against Patricia Price in an asbestos exposure case filed against DuPont Co., the Associated Press reports. The court ruled that Mrs. Price could not change a claim of nonfeasance against DuPont into a claim of misfeasance. Nonfeasance involves the failure to protect someone with whom you have a special relationship and to whom you owe a duty. Misfeasance involves a general affirmative duty to protect others against harm. The court said Dupont's failures to prevent Bobby Price from taking asbestos fibers home on his clothing or to warn the Prices about asbestos do not support a claim of misfeasance. The court also said Mrs. Price's nonfeasance claim must fail because DuPont had no special relationship with her and owed her no legal duty. ASBESTOS UPDATE: Hazard Cleared from Three Cheatham Co. Schools --------------------------------------------------------------- Asbestos was removed from three schools in Cheatham County, Tenn., where floor tiles were found that contained the material, The Tennessean reports. Floor tiles containing asbestos were carefully removed from the older section of West Cheatham Elementary School as well as from the commons area at Cheatham County Central High School, according to director of schools Tim Webb. At East Cheatham Elementary School, the tiles were removed from the school's library, which was originally the school's cafeteria. Asbestos floor tiles were also replaced in the school's front office reception area and adjoining offices. New flooring is being installed at all three schools. ASBESTOS UPDATE: Jennings' Widow Warns Builders Regarding Hazard ---------------------------------------------------------------- After a Bolton Coroners Court inquest ruled that asbestos caused the death of engineer Cyril Jennings, his widow, 61-year-old Jennifer Jennings, cautions builders to protect themselves against asbestos, The Bolton News reports. Mr. Jennings became ill in 2009 and was diagnosed with mesothelioma. He died at the Royal Bolton Hospital at the age of 63 on April 4, 2011. Mrs. Jennings said after the inquest, "I don't think people realize that asbestos kills. I implore any builder to make sure they wear protective clothing and masks. You just don't know where asbestos is; it is still in buildings now. I don't want this to happen to anyone else." The inquest heard Mr. Jennings, of Churchill Drive, Little Lever, England, spent most of his working life as an engineer in laboratories at a factory in Chadderton, which became part of BAE Systems. In a statement made before his death, Mr. Jennings described handling tubes made of asbestos in a greenhouse near where he worked, which were part of experiments with different metals. The exposure amounted to a couple of times a week, over several years, as he helped change things over during the tests. The post mortem examination found the cause of Mr. Jennings' death to be a blood clot, caused by the asbestos-related cancer. The court heard medical evidence that any cancer can make the blood thicken, making it more susceptible to clotting, which can cause sudden death when an artery becomes blocked. Deputy coroner Alan Walsh recorded a verdict of death by industrial disease. ASBESTOS UPDATE: IEPA Investigating Issues at Powerhouse Cleanup ---------------------------------------------------------------- The Illinois Environmental Protection Agency is investigating possible asbestos violations during the demolition and asbestos removal at Peru, Ill.'s old powerhouse on Water Street, the News Tribune reports. IEPA inspected the building on June 28, 2011. Maggie Carson, IEPA spokeswoman said, "They found what are considered some apparent violations and they are looking into the specifics of the matter, some lab data and various information, to see what the next steps should be." Under contract with the city, A-Unified LLC of Cincinnati, Ohio, took deed of the 120-year-old plant this spring at no cost, agreed to demolish the building, pay for asbestos removal, and once the property was vacant, give the parcel back to the city. A-Unified has rights to remove and sell any metals such as aluminum, copper and steel. It hired Colfax Corp., Chicago for asbestos removal. Ms. Carson relayed an inspector's words about the site to the NewsTribune. "We have asked the contractor to voluntarily stop work and hire a licensed asbestos designer to put together a design cleanup plan for the building prior to any more work proceeding at this site." The city is shielded from some of this mess. During demolition and asbestos removal, the city does not own the property; A- Unified does. A-Unified and Colfax secured a liability bond for several million dollars. The city is not paying A-Unified to demolish the building and remove asbestos; valuable metals were the motivation for the company. Peru electric supervisor Jim Potthoff said asbestos removal must be completed before demolition resumes. In May 2011, demolition and asbestos removal occurred side-by- side, with asbestos areas walled off with plastic sheets inside the brick building. The coal-fired power plant has not operated in 10 years. ASBESTOS UPDATE: Hutto Case v. 18 Firms Filed on June 28 in Tex. ---------------------------------------------------------------- Juanita Keith Hutto, on June 28, 2011, filed an asbestos lawsuit on behalf of Jimmie Jefferson Hutto against 18 defendant corporations in Jefferson County District Court, Tex., The Southeast Texas Record reports. The defending companies named in the complaint are: A.W. Chesterton Company, American Optical Corp., Anco Insulation, Asten Group, CBS Corporation, D&F Distributing, Foster Wheeler Energy Corporation, General Electric Corporation, Guardline, Ingersoll Rand, Minnesota Mining and Manufacturing Co., Owens Illinois, Oxy USA, Sepco Corporation, Tin, TexasGulf, Union Carbide Corporation and Zurn Industries. Mrs. Hutto alleges the defendant companies caused Mr. Hutto's disease because they failed to adequately test their products and failed to warn of the dangers of asbestos exposure. According to the complaint, Mr. Hutto was exposed to asbestos during his work as a welder, boilermaker, shipfitter, machinist and roughneck. At the time the products were manufactured, the defending companies knew of the hazards associated with asbestos but failed to remove their products from the market, according to the complaint. Some defendant companies like 3M and American Optical Corporation did not provide Mr. Hutto with adequate masks to protect him from the asbestos, while other businesses forced Mr. Hutto to work in close proximity to asbestos, the suit states. Mrs. Hutto seeks actual and exemplary damages, plus costs, pre- and post-judgment interest and other relief to which she may be entitled. Bryan O. Blevins Jr. of Provost and Umphrey Law Firm in Beaumont is representing Mrs. Hutto. Case No. B190-422 has been assigned to Judge Gary Sanderson, 60th District Court. ASBESTOS UPDATE: Ginter Awarded $2.5MM in Asbestos Compensation --------------------------------------------------------------- James Ginter, a laboratory chemist exposed to dust containing asbestos, was awarded US$2.5 million in asbestos damages after a two-week trial, his lawyer said, the Buffalo News reports. In March 2010, Mr. Ginter was diagnosed with mesothelioma. Keith R. Vona, Esq., of Lipsitz&Ponterio who represented Mr. Ginter, called the verdict "a great victory for workers exposed to asbestos-containing dust." Mr. Ginter worked at Durez Plastics, a North Tonawanda, N.Y., manufacturer of industrial resins and phenolic molding compounds. He worked with a machine manufactured by Ford Motor Co. that required him to file and grind experimental asbestos-containing friction products ultimately used as brakes on automobiles. Ford was the only defendant in the trial and the jury assigned 15 percent of the responsibility for damages to the auto company, according to the law firm. Other defendants settled before the trial in State Supreme Court. ASBESTOS UPDATE: Calif. Lodge Owner Penalized for Safety Breach --------------------------------------------------------------- Sanjiv Kakkar, The owner of Brookdale Lodge in Brookdale, Calif., a historical lodge plagued by legal problems, is facing jail time and more than US$100,000 in charges and fines if convicted of various charges, including two counts of fraud and seven counts of health and safety code violations, the Mercury News reports. Mr. Kakkar, who has owned the lodge since 2007, pleaded not guilty at an arraignment in June 2011. A trial date will be set at his next court appearance Sept. 26, 2011. Mr. Kakkar has been plagued with legal problems over the last several years, with the most recent stemming from a multi-agency asbestos investigation. That probe launched in January 2011, when officials became aware of possible asbestos exposure during a demolition and remodeling project in the dining room, according to Kelly Walker, the assistant district attorney who is handling the case. The investigation involved officials with the county's health and planning departments, as well as the Monterey Bay Unified Air Pollution Control District. A representative from the control district confirmed the presence of asbestos, and Mr. Kakkar was told no more events could be held there until a licensed asbestos company cleaned the site. Jose Deanda, with the county's environmental health services department, said a food inspector red tagged the facility until the asbestos was cleared, which has since been completed. ASBESTOS UPDATE: Vaughan's Family Receives Asbestos Compensation ---------------------------------------------------------------- The family of John Vaughan, an electrician from Llanwit Major, Wales and who died from cancer caused by exposure to asbestos at a power station, has been awarded "substantial compensation" after a lengthy legal battle, WalesOnline.co.uk reports. Mr. Vaughan was 71 years old when he died from mesothelioma. He was exposed to asbestos while working at Aberthaw Power Station, which at the time he worked there was run by the Central Electricity Generating Board. Mr. Vaughan had worked at Aberthaw Power Station for 32 years when he retired in 1992. He was exposed to the dust as he worked alongside laggers who were handling asbestos insulating materials. In November 2007, Mr. Vaughan became short of breath. He was diagnosed with mesothelioma in December 2008 and told he had just six months to live. He pursued a claim for compensation, but died before it was finalized. His wife, Glenys, carried on his claim and has now been awarded an unspecified amount in an out-of-court settlement. ASBESTOS UPDATE: Miss. Court Stalls Proceedings in Brown's Case --------------------------------------------------------------- The Mississippi Supreme Court has stopped all proceedings in an asbestos case that resulted in a record US$322 million verdict in favor of Thomas "Tony" Brown Jr. until a decision is made on whether the trial judge should be removed, the Clarion Ledger reports. Circuit Judge Eddie Bowen took no action to remove himself, despite allegations of a possible conflict of interest following the Smith County jury award in May 2011. Union Carbide Corp. had asked Judge Bowen of Raleigh, N.C., to vacate the jury award and to step aside from any further action in the case because he did not divulge that his father had filed two similar asbestos cases. His inaction resulted in Union Carbide petitioning the Supreme Court to force him off the case. Judge Bowen's bias and prejudice against Union Carbide and Chevron Phillips, the other party being sued, were evidenced in his rulings, comments in front of the jury, and his coaching of Brown's attorneys in questioning witnesses, according to Union Carbide's motion. However, an attorney for Mr. Brown of Brookhaven, Miss., said Judge Bowen was fair to both sides in the case. The jury awarded the US$322 million to Mr. Brown. Judge Bowen was appointed to the bench in September 2010. State judicial rules prevent a judge from commenting on a pending case. He has recused himself from some other cases that he might have a conflict. Georgia Pacific filed court papers in June 2011 saying Judge Bowen, who was presiding over three Mississippi lawsuits involving the company, had sued one of the Company's subsidiaries in Jasper County. ASBESTOS UPDATE: Iowa Renovation Project Supervisor Gets Probation ------------------------------------------------------------------ Russell Coco, who supervised a renovation project in downtown Des Moines, Iowa, has been given three years of probation for his role in the illegal removal of asbestos from the building, KGAN reports. Mr. Coco pleaded guilty to two asbestos-removal charges in February 2011. The Des Moines Register says a federal judge recently sentenced Mr. Coco to two probation terms of three years, to be served concurrently, for supervising the removal of asbestos from the Equitable Building in violation of the Clean Air Act. Mr. Coco and Des Moines developer Bob Knapp were accused of gutting several floors while large amounts of asbestos were present, then improperly disposing of it. Mr. Knapp, who owned the building, also pleaded guilty to two asbestos-removal charges. He was sentenced last June 2011 to more than three years in prison. ASBESTOS UPDATE: Inquiry on Illegal Dumpsite at Hurunui Ongoing --------------------------------------------------------------- Authorities are probing the illegal dumping of asbestos in the Kowai riverbed in Hurunui, New Zealand, Voxy.co.nz reports. The asbestos, estimated to weigh around 240 kilograms, was discovered at the end of Terrace Road at Leithfield. The asbestos has now been removed and safely disposed of. Hurunui District Council Regulatory Committee Chairman, Ross Little, says the find is disturbing and where the offenders can be identified, the appropriate penalties will be applied. The Kowai river bed is frequently visited by both children and animals and Environmental Manager, Judith Batchelor, says it beggars belief someone would leave such a dangerous material lying around for them to potentially come in contact with. The maximum penalty for the illegal dumping of rubbish is two years jail and or an NZD300,000 fine. Authorities estimate it would have cost no more than NZD50 to have appropriately and safely disposed of the dumped material. ASBESTOS UPDATE: Hazard Still Being Found in Queensland Schools --------------------------------------------------------------- Asbestos has been found in more Queensland, Australia, state school staff rooms, on desks and on a Prep classroom floor, The Courier-Mail reports. Details released on Education Queensland's website disclose asbestos-containing material continues to be found on top of furniture, computers and floors. The finding follows State Government Budget documents in June 2011 that revealed AU$21.5 million was spent on removing the asbestos from state schools in 2010 and 2011 -- over a fifth of the Government's school maintenance budget. Another AU$25 million is budgeted for removal works this financial year. Details released recently on EQ's website show positive tests for asbestos at Caboolture, Cairns, Mossman, Tully and Yarrabah state high schools in December 2011, along with Moranbah East and Torquay state schools. EQ far north Queensland acting regional director Richard Huelin said minor damage to a wall and dust on carpet, which was discovered in a Yarrabah State High School science-block staff room, tested positive for asbestos on Dec. 23, 2010. Dust found inside and outside a security box in a Holland Park State High School staff room tested positive for asbestos on Jan. 24, 2011. It was also confirmed in a sample taken from ceiling space access in a Milton State School staff room in March 2011 and on the top of a suspended ceiling sheet at Torquay State School in December 2010. The asbestos was also found on desks at Hermit Park State School in February 2011 and on a Rochedale South State School Prep classroom floor in January 2011. At Hopevale State School, debris in floor adhesive tested positive for asbestos in May 2011. ASBESTOS UPDATE: Hazard Uncovered in Mithoff Hotel in Lancaster --------------------------------------------------------------- Asbestos is found inside the Mithoff Hotel, located between 162 and 168 W. Main Street in Lancaster, Ohio, the Lancaster Eagle Gazette reports. The City of Lancaster will not submit a grant application to demolish the Mithoff Hotel in July 2011, but Lancaster still is moving forward with addressing possible environmental problems at the site. An Environmental Protection Agency assessment determined that no underground storage tanks exist on the property and contaminants do not exceed legal thresholds. The building also has asbestos that would need to be removed before demolition. Lancaster is seeking estimates for asbestos removal and demolition of the building, said Mike Pettit, the City's economic development director. Once estimates are received, the City could pursue a Clean Ohio Assistance Fund grant of up to US$300,000 for asbestos remediation, Mr. Pettit said. However, the City will not pursue funding from this round of the Clean Ohio Revitalization Fund grant, which could pay for up to US$2 million in demolition and cleanup costs. Once estimates for asbestos removal and demolition are received, Mr. Pettit said in an email that "all alternatives will be presented to administration to determine the best and most feasible action." City officials have maintained that a decision to tear down the Mithoff has not been made and that it could be sold to an interested developer. In an April 2011 records review, the Ohio EPA found evidence that three underground storage tanks for a gasoline station that sat on the property from 1929 to 1938 still might be buried. An EPA report also noted that a former dry cleaner and auto service station could have contaminated the property. However, soil tests determined that contaminants were below legal limits and that no underground tanks exist on the property, according to an Ohio EPA report. In 2008, the City loaned itself US$205,000 to buy the 25,000- square-foot building, which has sat in disrepair for years. The City hoped to sell the building to a local developer, but no offer ever has been made for the structure. ASBESTOS UPDATE: Madison County Cases Reach 393 Through June 30 --------------------------------------------------------------- Through the six months ended June 30, 2011, a total of 393 asbestos-related cases have been filed in Madison County Circuit Court, Ill., The Madison/St. Clair Record reports. Most of the asbestos cases filed are on behalf of out-of-state residents. In a review of 19 cases filed between June 24, 2011 and June 29, 2011, two of those plaintiffs reside in Illinois. The rest are from as far as Rhode Island to as near as Indiana. Eleven of the plaintiffs claim mesothelioma; eight claim lung cancer. The Simmons firm of Alton filed 12 of them; the Gori firm of Edwardsville filed four; the Goldenberg firm of Edwardsville filed two and the Mauche firm of St. Louis filed one. Circuit Judge Barbara Crowder, who presides over the court's massive asbestos docket, is deciding whether to scale back or keep 500 trial dates per year. She heard arguments in March 2011 from both sides of the bar. Defendants argue that the court's calendar setting encourages plaintiff lawyers to market the asbestos docket nationwide. Plaintiffs counter that the calendar allows plaintiffs to request trials in an orderly fashion. They also argue that if defendants are bothered by where cases come from, they should file forum motions. While Madison County has long hosted one of the largest asbestos dockets in the country for plaintiffs near and far, its St. Clair County neighbor has in recent years become a plaintiff-friendly asbestos venue for out-of-state claimants. In 2010, dozens of asbestos lawsuits were filed in St. Clair County by mostly out-of-state residents. By comparison, there were 61 asbestos cases filed in St. Clair County in four years between 2004 and 2007. None were filed in 2008. Four of the 2010 St. Clair County asbestos cases face forum challenges at the Fifth District Appellate Court in Mount Vernon. Justices recently heard oral arguments on the matter. In another recent development, St. Clair County Associate Judge Andrew Gleeson in June 2011 dismissed four asbestos cases on defendants' forum non conveniens motions. ASBESTOS UPDATE: Colo. Court Issues Ruling in Steven Haden Claim ---------------------------------------------------------------- The U.S. District Court, District of Colorado, issued recommendations in a case involving asbestos filed by Steven T. Haden. U.S. Magistrate Judge Kathleen M. Tafoya entered judgment in Civil Action No. 10-cv-00515-PAB-KMT on Jan. 12, 2011. Mr. Haden is an inmate with the Colorado Department of Corrections at Buena Vista Correctional Facility. He generally asserted that Defendants have violated his First Amendment, Eighth Amendment, and Fourteenth Amendment rights. Mr. Haden asserted four claims for relief. He alleged the poor air quality is exacerbated by: -- The presence of insects, rats, mice, and other vermin, -- Mr. Haden's lengthy confinement (up to 21 hours per day) in his cell and restricted access to outdoor recreation, -- Ongoing construction and renovations at BVCF that release asbestos, lead paint particles, diesel exhaust fumes, and other construction-related contaminants; -- Inadequate ventilation in the showers, which causes mold and mildew on the walls and floors of the showers; and -- BVCF's failure to regulate temperatures within the living units. Mr. Haden sued all defendants in their individual and official capacities, seeking compensatory damages, punitive damages, and injunctive relief. Defendants sought dismissal, in part, of Plaintiff's claims against them. The Court recommended that Defendants' "Motion to Dismiss the Third and Final Amended Complaint in Part Pursuant to Fed.R.Civ.P. 12(B)(6) [sic]" be granted. Steven T. Haden of Crowley, Colo., represented himself. Nicole S. Gellar, Esq., Colorado Attorney General's Office, Department of Law, Denver, Colo., represented the Defendants. ASBESTOS UPDATE: Court Issues Split Ruling in Henderson Lawsuit --------------------------------------------------------------- The Superior Court of Delaware, New Castle County, issued split rulings in a case involving asbestos filed on behalf of Elizabeth Henderson and her son, Bruce Henderson. Peggy L. Ableman entered judgment in Civil Action Nos. 09C-07-188 ASB and 09C-04-293 ASB on March 22, 2011. Plaintiffs, the family members of Elizabeth Henderson and her son Bruce Henderson, filed suit against various manufacturers and suppliers of asbestos-containing products, alleging that Elizabeth and Bruce each died of mesothelioma contracted as a result of asbestos exposure. Plaintiffs proceeded to trial against two automotive parts manufacturers -- Dana Companies, LLC and Zoom Performance Products. Following a two-week jury trial, both defendants were found liable, and the plaintiffs were awarded a total of US$1.74 million in damages. Plaintiffs filed the instant motion for costs under Superior Court Civil Rule 54(d) on Feb. 16, 2011. Dana and Zoom opposed Plaintiffs' request for a total of US$7,129.00 in expert witness travel fees and expenses, arguing that the amount sought is excessive in view of the travel time required. Defendants further argue that the US$729 transcript fee associated with Bruce Henderson's video deposition was not recoverable because the deposition video was played for the jury at trial, rendering the transcript duplicative. Dana and Zoom did not oppose the remaining costs, and did not object to Plaintiffs' demands for pre- and post-judgment interest. Plaintiffs' Motion for Costs and Interest was granted in part and denied in part in accordance with the above adjustments to Plaintiffs' claimed costs. ASBESTOS UPDATE: Court Denies Perkins Partial Summary Judgment -------------------------------------------------------------- The Superior Court of Connecticut, Judicial District of New London, denied Maloyid Perkins, III's motion for partial summary judgment in a case involving asbestos styled Autowerkes Management II, LLC et al. v. Maloyid Perkins, III. Judge Martin entered judgment in Case No. No. CV095011938 on March 2, 2011. In their 42-count complaint, the plaintiffs, Autowerkes Management II, LLC and The Autowerkes Corporation, asserted claims for negligence, trespass and nuisance against the defendant, Maloyid Perkins, III, in counts one through six. Mr. Perkins had moved for summary judgment on these first six counts on the ground that the actions complained of by the plaintiffs in all six counts were performed by an independent contractor, the co-defendant Global Industries, Inc., and thus Mr. Perkins did not owe the plaintiffs a duty of care and was not liable for any losses caused by Global. In the present case, Mr. Perkins submitted his own affidavit and a copy of his contract with Global to support the conclusion that he did not exert any control over Global's actions. Mr. Perkins maintained in his affidavit that the actions giving rise to this lawsuit, the allegedly negligent removal of asbestos, took place between Jan. 4, 2008 and Feb. 2, 2008. Mr. Perkins stated that he was present at the removal site for about 15 minutes on Feb. 2, 2008. The plaintiffs responded in an affidavit that the asbestos removal took place on one day, Feb. 2, 2008. Therefore, it was clear that a material dispute of the facts existed in the evidence presented before the court. Whether Mr. Perkins was present during the asbestos removal and, if so, whether being there for 15 minutes was sufficient to exert control over the defendant Global's actions is a matter for the trier of fact to decide. In addition, the plaintiffs have submitted a copy of Mr. Perkins' response to a set of interrogatories, where he stated that he observed a tractor trailer on the plaintiffs' property where debris was being placed. Mr. Perkins' motion for partial summary judgment as to counts one, two, three, four, five and six was hereby denied. ASBESTOS UPDATE: Conn. Court OKs Trumbull Summary Judgment Bid -------------------------------------------------------------- The Superior Court of Connecticut, Judicial District of New Haven, granted Trumbull Shopping Center 2, LLC's motion for summary judgment in a case involving asbestos filed by Robin Zenobi. Judge Brian T. Fischer entered judgment in Case No. CV085017790 on Feb. 22, 2011. On Feb. 7, 2008, the plaintiffs, Salvatore and Robin Zenobi, filed a six-count complaint against the defendants, May Department Store Company, Westland Properties, Inc. and Trumbull Shopping Center 2, LLC. This suit arose in connection with Salvatore Zenobi falling while performing work on premises owned by Trumbull. On April 22, 2008, the plaintiffs filed an amended complaint against the defendants in which Salvatore Zenobi alleged negligence against each defendant and Robin Zenobi alleged loss of consortium against each defendant. On May 1, 2008, Salvatore Zenobi withdrew his action against May Department Store Company. On Oct. 20, 2008, LVI Services, Inc., Salvatore Zenobi's employer, filed a motion to intervene as a co-plaintiff and to file an intervening complaint which was granted on Nov. 3, 2008. On Nov. 18, 2008, LVI filed its intervening party complaint to collect reimbursement from the amounts it paid under the Workers' Compensation Act. On Dec. 12, 2008, Westland and Trumbull filed an answer, special defenses and a counterclaim against LVI. On June 9, 2009, LVI filed an answer and special defenses to the counterclaim. On Oct. 2, 2009, both plaintiffs withdrew their claims against Westland. On Feb. 5, 2010, the plaintiff, Robin Zenobi, withdrew her claims against Westland and Trumbull. On May 11, 2010, Trumbull withdrew its counterclaim against LVI. On Sept. 8, 2010, Trumbull filed a motion for permission to file a motion for summary judgment which was granted on Sept. 20, 2010. On Nov. 4, 2010, the parties agreed to a stipulation of the following relevant facts. On and prior to Oct. 11, 2006, the premises were owned by Trumbull. On Oct. 5, 2006, Trumbull entered into a contract with LVI to perform asbestos removal on the premises. On Oct. 11, 2006, LVI employees were on the premises inspecting the space under the terms of the contract. On Oct. 11, 2006, Salvatore Zenobi was an employee of LVI and was performing work within the scope of his employment. On Oct. 11, 2006, no agents or employees of Trumbull were on the premises. On Oct. 11, 2006, there was an opening in the floor, where Salvatore Zenobi was performing his work, with one or two plywood boards over it. He walked on the board or boards, fell through the opening and suffered injuries. On Nov. 5, 2010, Trumbull filed a motion for summary judgment, attached a memorandum of law in support thereof and submitted an agreed upon stipulation of certain facts and a copy of the contract between the parties. On Nov. 15, 2010, Salvatore Zenobi filed a request to amend its complaint and an amended complaint. On Nov. 24, 2010, Salvatore Zenobi filed a memorandum of law in opposition to the motion for summary judgment and attached his sworn affidavit and a partial transcript of the deposition of Douglas Blackwood. On Dec. 17, 2010, Trumbull filed a reply to Salvatore Zenobi's objection to the motion for summary judgment. This court heard oral argument on this matter on Dec. 20, 2010. For the foregoing reasons, the court granted Trumbull's motion for summary judgment. ASBESTOS UPDATE: Croydon Roofing Firm Fined for Safety Breaches --------------------------------------------------------------- Brunwin Professional Roofing Services Ltd, a Croydon, England- based roofing company, has been fined for unlicensed asbestos removal -- at a property where employees also worked on unsafe scaffolding, according to a Health and Safety Executive press release dated July 15, 2011. The HSE prosecuted Brunwin Professional after uncovering serious safety failings during a routine inspection at a detached house in Croydon on April 28, 2009. During the site visit, a HSE inspector discovered that the scaffolding was poorly positioned, creating a gap large enough for the two workers on site to fall through. The company also removed and broke up soffit (fascia) boards made from asbestos containing materials without the mandatory license and notifications to HSE. HSE Inspector Bose Ogunsekan, said, "Falls from height are the biggest cause of fatal injury in the construction industry and recent years have seen sharp increases in cases of ill health linked to asbestos in trades such as roofing. "Brunwin Professional Roofing Services failed to carry out work in a safe way. Major injuries and fatal accidents can occur on small jobs as well as large schemes. I hope the result of this case indicates the importance of managing health and safety on what was considered to be a small project." Brunwin Professional Roofing Services Ltd pleaded guilty to breaching safety regulations at City of London Magistrates Court on July 15, 2011. The Company, which is registered at Suite L8, Airport House, Purley Way in Croydon, was fined GBP4,000 for breaching Regulation 8(1) of the Control of Asbestos Regulations 2006 and GBP2,000 for breaching Regulation 6(3) of the Work at Height 2005 Regulations. Full costs of GBP2,406 were also awarded against the Company, which has been trading for 23 years. ASBESTOS UPDATE: Marks and Spencer Found Guilty of Safety Breach ---------------------------------------------------------------- Marks and Spencer plc and two of its contractors have been convicted for putting members of the public, staff and construction workers at risk of exposure to asbestos-containing materials during the refurbishment of two stores, according to a Health and Safety Executive press release dated July 18, 2011. The HSE prosecuted Marks and Spencer plc, Willmott Dixon Construction Ltd and PA Realisations Ltd (formerly Pectel Ltd). The work was carried out between 2006 and 2007 on shops in Reading and Bournemouth. Winchester Crown Court heard construction workers at the two stores removed asbestos-containing materials that were present in the ceiling tiles and elsewhere. The court heard that the client, Marks and Spencer, did not allocate sufficient time and space for the removal of the asbestos-containing materials at the Reading store. The contractors had to work overnight in enclosures on the shop floor, with the aim of completing small areas of asbestos removal before the shop opened to the public each day. The HSE alleged that Marks and Spencer failed to ensure that work at Reading complied with the appropriate minimum standards set out in legislation and approved codes of practice. The Company had produced its own guidance on how asbestos should be removed inside its stores, and the court heard that this guidance was followed by contractors inappropriately during major refurbishment. The contractor, PA Realisations Ltd, failed to reduce to a minimum the spread of asbestos to the Reading shop floor. Witnesses said that areas cleaned by the company were re-contaminated by air moving through the void between the ceiling tiles and the floor above, and by poor standards of work. The principal contractor at the Bournemouth store, Wilmott Dixon Construction Ltd, failed to plan, manage and monitor removal of asbestos-containing materials. It did not prevent the possibility of asbestos being disturbed by its workers in areas that had not been surveyed extensively. After the hearing, Charles Gilby, HSE Principal Inspector, said, "This prosecution exposed serious failures by Marks and Spencer and its contractors that we hope others will learn from. This verdict is a wake-up call for the retail industry. Client accountability and responsibility is at the heart of this case, because asbestos can and does kill. "There are very real lessons here for the country's large retailers and other organizations engaging in programs of refurbishment, that they must allow enough time and resource to carry out work without endangering anyone." Marks and Spencer plc, of Waterside House, North Wharf Road, Westminster, was found guilty of breaching section 2(1), relating to their own staff, and section 3(1), relating to members of the public and other workers, of the Health and Safety at Work etc Act 1974. These charges relate to the Broad Street Reading store and date from April 24, 2006 to Nov. 13, 2006. Willmott Dixon Construction Ltd, of Hertfordshire, England, was found guilty of contravening sections 2(1) and 3(1) of the Health and Safety at Work etc Act 1974 between Feb. 5, 2007 and Feb. 28, 2007. These breaches took place at the Marks and Spencer store in Commercial Road, Bournemouth. Manchester-based company PA Realisations Ltd (formerly Pectel Ltd), of the Observatory, Chapel Walks, Manchester, was found guilty of contravening regulation 15 of the Control of Asbestos at Work Regulations 2002 between May 5, 2006 and Nov. 12, 2006 at the Marks and Spencer plc store on Broad Street, Reading. At an earlier hearing, Styles & Wood Limited, of Manchester Road, Altrincham, Cheshire, pleaded guilty to contravening sections 2(1) and 3(1) of the Health and Safety at Work etc Act 1974. These charges relate to offences committed between April 24, 2006 and Nov. 13, 2006 at the Marks and Spencer store on Broad Street, Reading. The guilty companies will be sentenced on Sept. 26, 2011. ASBESTOS UPDATE: Bradford Cathedral Interiors Set for Abatement --------------------------------------------------------------- As part of an extensive GBP250,000 painting and decorating project in the next three months, white asbestos is scheduled to be removed from parts of Bradford Cathedral in West Yorkshire, England, the Telegraph & Argus reports. Scaffolding for the work is due to be erected inside the east end of the building, the area that includes two side chapels and the altar, by the end of July 2011. Cathedral administrator Chris Aldred said the Chapter House will also be stripped of its old furnishings and converted into a room for youth work and meetings. Mr. Aldred said, "White asbestos was sprayed on parts of the ceiling in the 1960s. A survey five years ago revealed no flaking had taken place. But as we were redecorating we decided to remove it. A team of professional asbestos removers in white overalls will be burning it off, I think. "It will be bagged and put in a skip. While this is going on a fenced off temporary structure outside the Cathedral will be visible -- it's where the asbestos removers will be washing." The GBP250,000 will be met from a legacy. Mr. Aldred said, "We've had a couple of legacies over the years. Ten to 15 years ago we had a big one, GBP500,000, left to us by the daughter of a Bradfordian who went to the United States, on the condition that the money is only used on the fabric of the building, so we're using half of that." ASBESTOS UPDATE: 2 Bay City Men Charged for Breach at Ford Plant ---------------------------------------------------------------- Brian Waite, 38 years old, and Daniel Clements, 49 years old, both from Bay City, Mich., have been indicted on charges they violated the Clean Air Act by illegally removing asbestos from a former Ford Motor Co. plant in Utica, Mich., The Detroit News reports. Mr. White and Mr. Clements are accused of removing asbestos from the plant between December 2010 and February 2011. They face up to five years in prison on each count and a US$250,000 fine if convicted. The men are accused of telling workers to tear down material containing asbestos without wetting it. Randall Ashe, special agent-in-charge of the Environmental Protection Agency's criminal enforcement program in Chicago, said, "Exposure to asbestos can be fatal, and unsafe asbestos removal practices put the health of both the workers and the public at risk. These arrests show that the government will take action against those who are alleged to have broken the law." Mr. Clements allegedly told workers "let it fly" and "let 'er rip," according to the indictment. The workers were told to remove 1,000 feet of contaminated materials each day. To meet the goal, workers threw or kicked the materials from lifts instead of lowering them to the ground. Mr. Waite was arrested on July 19, 2011 on a three-count indictment. Mr. Clements was scheduled to make an initial appearance in federal court on July 20, 2011. ASBESTOS UPDATE: EPA to Clear Hazard from Emge Meat Packing Site ---------------------------------------------------------------- After the owner of the former Emge meat packing plant in Fort Branch, Ind., the U.S. Environmental Protection Agency will intervene in removing asbestos from the burned remains of the former meat packing plant, the Evansville Courier & Press reports. Kevin Turner, the EPA's project manager for the removal, said US$400,000 has been budgeted for the cleanup. He said it is scheduled to begin mid-August 2011 and will likely take four to eight weeks. He said, "We have engaged the owner to clean it up and he refused. There is a civil process we go through. Under the law he can say he will do it or not do it but that doesn't relieve him of any liability or financial responsibility." Mr. Turner identified David Mounts of Evansville as the building's owner. Mr. Turner said the asbestos in the Emge building was in the form of insulation and transite, a material used for purposes such as wallboard. He added that it was released by the partial demolition of the building to fight the fire. Firefighters from Fort Branch and elsewhere were joined by a crew from Evansville-based Summit Environmental Services, as well as state and federal environmental officials, in fighting the fire over nearly four days in June 2010. Because the building is privately owned and Gibson County has no building codes, it has little recourse on the upkeep or removal of the property, said Terry Hedges, Gibson County Emergency Management Agency director. More than 400 hourly and salaried jobs were lost when the plant was closed in 1999 after 90 years of operation, first by Emge and later by Excel Corp., a Cargill subsidiary, which kept the Emge brand name after the plant closed. ASBESTOS UPDATE: Mass. Plant Manager to Resign as Part of Deal -------------------------------------------------------------- H. Bradford White Jr., the West Boylston, Mass.-based West Boylston Municipal Light Plant's general manager, is to resign from his post effective Nov. 1, 2011 as part of an agreement to resolve allegations that he violated the state's Clean Air Act over the removal of asbestos-containing materials from an unused substation at the plant's headquarters in 2006, the Telegram & Gazette reports. Indictments charging Mr. White with the violations were continued without findings for 18 months on July 18, 2011 after Mr. White admitted to sufficient facts for guilty findings in Worcester Superior Court. The 58-year-old Mr. White was placed on pretrial probation for 18 months and the charges will be dismissed at the end of that time if he complies with all conditions of probation and has no further difficulties with the law. The charges, which alleged the improper removal, storage and disposal of asbestos-containing materials, related to Mr. White's oversight of the 2006 demolition and renovation of an unused substation/storage area in the basement of the plant headquarters at 4 Crescent St., West Boylston. According to documents filed in court by prosecutors with the office of Attorney General Martha Coakley, the work included the demolition of asbestos-containing transit panels by several light department employees who were not trained in the handling of asbestos nor provided with equipment designed for that purpose. Mr. White, who had previously received asbestos training, allegedly failed to warn the workers about the dangers of the material they were handling and, according to prosecutors, took no steps to ensure they followed demolition procedures mandated by the state Department of Environmental Protection. Mr. White was also accused of failing to make sure the asbestos- containing demolition debris was properly disposed of at an approved waste site and failing to ensure the proper storage of the material after it was tested and confirmed to contain asbestos in March 2008. Prosecutors say that employees related that there were still bags of asbestos-containing debris stored at the plant at that time. One worker who had previously insisted on testing was told by Mr. White that he should not press the matter, prosecutors alleged. Mr. White complied with proper procedures after representatives of the Department of Environmental Protection visited the site in 2009 and ordered additional testing of the remaining material, according to the attorney general's office. Assistant Attorney General Andrew A. Rainer told Judge Richard T. Tucker he agreed to the continuance without a finding because Mr. White had consented to various conditions that included his resignation effective Nov. 1 and a US$10,000 payment to cover the cost of any unpaid medical bills incurred by any light department employee or former employee as a result of asbestos exposure related to the demolition work. Other conditions agreed to by Mr. White and his lawyer, Bruce A. Singal, Esq., require Mr. White to donate US$3,000 to an environmental charity, to perform 100 hours of community service for an environmental organization or cause and to provide the attorney general's office with a letter of apology. Judge Tucker continued the case to Jan. 18, 2011 for a status report on Mr. White's compliance with the terms of his pretrial probation. ASBESTOS UPDATE: Ill. Court Overturns Verdict in Holmes Lawsuit --------------------------------------------------------------- The Fourth District of the Appellate Court of Illinois overturned a US$2.6 million McLean County asbestos verdict in favor of the estate of Jean Holmes, LegalNewsline.com reports. Mrs. Holmes' husband, Donald Holmes, had worked at an asbestos plant from 1962 to 1963, and she died of mesothelioma in 2006 at age 93. The court ruled in June 2011 that the defendants in the case were entitled to a judgment notwithstanding the jury verdict because no relationship existed between them and Mrs. Holmes. The decision is also in conflict with an opinion from the state's Fifth District that the defendants say relied on prior decisions from out-of-state jurisdictions. Justice John Turner added, though, that his court's ruling is in line with a Second District decision. To show that it was foreseeable that Mrs. Holmes could be injured by asbestos fibers on her husband's clothes, Mrs. Holmes would have to show that it was foreseeable when he worked at the Unarco plant. An expert for Mr. Holmes, however, said the first study showing an association between disease and take-home asbestos was published in 1964. Justice James Knecht dissented and filed an opinion, siding with the Fifth Circuit's decision. ASBESTOS UPDATE: Pa. School District to Get Chambersburg Armory --------------------------------------------------------------- Steve Dart, business manager for Chambersburg, Pa., schools, said the U.S. Army will be remediating the Chambersburg armory for asbestos and lead before transferring it to the Chambersburg Area School District school district - as early as May 2012, Public Opinion reports. Army Reservists have left the Chambersburg armory on South Sixth Street and moved into the US$11.4 million Army Reserve Center at Letterkenny Army Depot. Chambersburg Area School District is to receive the former armory in about 10 months. The district could relocate maintenance and food service operations from the Second Street Annex, a former small school building in south Chambersburg. The former armory has garages and a fenced-in lot. Bulk food storage would remain in the school district warehouse, the former Coca-Cola plant across from the Second Street Annex on South Main Street. The former armory is not large enough to hold the freezers. The warehouse houses the district's vehicle shops. Mr. Dart said the structurally sound armory has a good roof but a questionable heating plant. Rooms are cooled with window air conditioners. Army Reserve Centers from Chambersburg, Gettysburg and Greencastle are consolidating at the center. Some of the overcrowded centers had not been renovated in 40 years, according to the Army. The center was completed in April 2011 and is ready to be occupied, according to Shawn Morris, spokesman for the 99th Regional Support Command of Fort Dix, N.J. Most soldiers have moved in. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Frederick, Maryland USA. Leah Felisilda, Noemi Irene A. Adala, Joy A. Agravante, Julie Anne Lopez, Christopher Patalinghug, Frauline Abangan and Peter A. Chapman, Editors. Copyright 2011. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $575 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Christopher Beard at 240/629-3300. * * * End of Transmission * * *