/raid1/www/Hosts/bankrupt/CAR_Public/120302.mbx
C L A S S A C T I O N R E P O R T E R
Friday, March 2, 2012, Vol. 14, No. 44
Headlines
ADVENTURES ROLLING: Pays Wages Below Minimum Rates, Suit Claims
AGL RESOURCES: Inks Deal to Settle Class Action Suit in Georgia
AGL RESOURCES: Class Action Suit Over Nicor Merger Settled in Dec.
AGL RESOURCES: Class Action Suit in Ill vs. Nicor Still Pending
AMERICAN HONDA: Recalls 17,600 Trimmers Due to Laceration Hazard
ARCELORMITTAL: Discovery in Standard Iron Works Suits Ongoing
ASBURY AUTOMOTIVE: Ark. Class Action Settlement Approved in Nov.
AXIS CAPITAL: Awaits Final Approval of Antitrust Suit Settlement
CARLISLE FOODSERVICE: Recalls 111T Melamine Mugs Due to Burn Risk
CLECO CORPORATION: Continues to Defend "Opelousas" Class Suits
COLLIER COUNTY, FL: Awaits Ruling in Red-Light Camera Settlement
COMMERCE BANCSHARES: Bank Awaits Approval of $18.3MM Settlement
COMSCORE INC: Still Faces Class Action Suit in Illinois
DAVID KARAS: Judge Allows Investors' Class Action to Proceed
DR PEPPER: "Jones" Suit v. Unit Remains Pending in California
ENERGY TRANSFER: Class Action Suit Over SUG Merger Pending
FREEDOM COMMUNICATIONS: Settles Class Action for $30 Million
GEEKNET INC: Plaintiffs Drop Shareholder Suit in New York
GREENLEE TEXTRON: Recalls 1,800 Folding Pocket Utility Knives
HECLA MINING: Faces Two Stockholder Suits in Idaho
KENNETH COLE: Faces Second Suit Over Going Private Transaction
KV PHARMA: Class Action Settlement Gets Preliminary Court Okay
LARSEN & TOUBRO: Claims in Discrimination Class Action Upheld
LOEWS CORPORATION: Insurance Units Await Class Settlement Approval
LUMBER LIQUIDATORS: Awaits Ruling on Class Certification Motion
NCAA: Athletes Can't Compel Fox's & Big 10's Production of Docs.
NCL CORPORATION: Continues to Defend Wage Class Suits in Florida
ON SEMICONDUCTOR: Appeal from Settlement Order Dismissed
PAPA BEAR: Recalls 10,000 Children's Pajamas and Sleepwear
RISING BEVERAGE: Sued Over False Advertising on Activate
RITZ CARLTON: Faces Class Action Over Hotel Stay Packages
SAMSUNG ELECTRONICS: Settles Class Action Over Defective TVs
SITEL WORLDWIDE: Unit Continues to Defend Suits Over Phone Calls
TIM HORTONS: Judge Junks Franchise Owners' Doughnut Class Action
TOOTSIE'S CABARET: Faces Class Action Over Spam Text Messages
VENTAS INC: Awaits Approval of Settlement in NPH Acquisition Suit
VENTAS INC: Continues to Defend Cogdell Acquisition Class Suits
VIA RAIL: Law Firms Launch Class Action Over Train Derailment
WACHOVIA BANK: Sued Over Alleged Mortgage Kickback Scheme
WELLPOINT INC: Class Settlement Payment Completed in 2Q of 2011
WELLPOINT INC: Class Actions Over AICI Demutualization Pending
WELLPOINT INC: Appeal from ADA Suit Dismissal Order Pending
WELLPOINT INC: Consolidated MDL in California Still Pending
WEYERHAEUSER COMPANY: Still Faces Suit Over ERISA Violations
WHIRLPOOL CORP: Still Faces Class Suits in U.S., Canadian Courts
WINDSTREAM CORPORATION: Units Continue to Defend Ky. Class Suit
WORLD SAVINGS: Sued Over Property in San Francisco, California
Asbestos Litigation
ASBESTOS UPDATE: Turnkey Waste Management Oblivious of Carcinogens
ASBESTOS UPDATE: Mesothelioma Victims Guidance to Financial Rights
ASBESTOS UPDATE: Telemovie Based on James Hardie Story On the Mill
ASBESTOS UPDATE: Contractor Fined $18,000 for Illegal Disposal
ASBESTOS UPDATE: Crown Holdings' Campaign Wins Support In Idaho
ASBESTOS UPDATE: New Cases of Mesothelioma Stirs Namibia
ASBESTOS UPDATE: Upper Clyde Insurers Face GBP700,000 Lawsuit
ASBESTOS UPDATE: Examiner Assures Safety at Albany Mall Abatement
ASBESTOS UPDATE: 4 Cases Filed in St. Louis on Valentine's Day
ASBESTOS UPDATE: Motion Against Asbestos Mine Reopening Crumbles
ASBESTOS UPDATE: Mesothelioma Toll at 32 Deaths in Sevenoaks
ASBESTOS UPDATE: Cambridge U "Settles" Exposed Carpenter
ASBESTOS UPDATE: Macedon Council Orders Audit After Fiber Find
ASBESTOS UPDATE: Jan Juc Parklands Up For Remediation
ASBESTOS UPDATE: NIC Seeks $16MM Surplus From Montana's Policy
ASBESTOS UPDATE: Chrysotile Industry Refuses "Natural Death"
ASBESTOS UPDATE: Medway Group Offers Help to Mesothelioma Victims
ASBESTOS UPDATE: Freight Firm Sued for Fiber Exposure
ASBESTOS UPDATE: 28 Mesothelioma Deaths in Kingston in 4yrs
ASBESTOS UPDATE: RBI Awards $100,000 for "The Block" Cleanup
ASBESTOS UPDATE: 29 Mesothelioma Deaths in Luton in 4yrs
ASBESTOS UPDATE: Accidental Fire Disrupts Control Tower Abatement
ASBESTOS UPDATE: School Chairs Urge Parents to Send SOS to MPP
ASBESTOS UPDATE: NZ Defense Force to be Asbestos-Free by 2014
ASBESTOS UPDATE: Town of Union Seeks to Waive Removal Permit Fees
ASBESTOS UPDATE: 41 Mesothelioma Deaths in W Norfolk in 4yrs
ASBESTOS UPDATE: Sunoco Refinery Begins Removal of Old Equipment
ASBESTOS UPDATE: Renovation Releases Undetectable Toxic Materials
ASBESTOS UPDATE: Reforms Forcing Claimants to Pay GBP2,300 Slammed
ASBESTOS UPDATE: New Zealanders Secure With NDZF Fibro Management
ASBESTOS UPDATE: NED Director Assures Safety of NZ Water Supply
ASBESTOS UPDATE: SCC's Failure to Inform Parents Creates Stir
ASBESTOS UPDATE: 86 Mesothelioma Deaths in Lancashire in 5yrs
ASBESTOS UPDATE: Evergreen's Fine Dropped From $25,450 to $3,450
ASBESTOS UPDATE: Woman Exposed to Fibro on Husband's Clothes Dies
ASBESTOS UPDATE: 28 Mesothelioma Deaths in Sedgemoor in 4yrs
ASBESTOS UPDATE: Ohio Ct. Allows Astar Claims to Proceed to Trial
ASBESTOS UPDATE: Pa. Ct. Dismisses Claims vs. Foster Wheeler
ASBESTOS UPDATE: Fla. Ct. Junks Celotex PD Panel's Appeal on Fees
ASBESTOS UPDATE: Mich. Ct. Sets Aside Hayes' Appraisal Request
ASBESTOS UPDATE: Del. Super. Ct. Clarifies File-Closing Protocol
ASBESTOS UPDATE: Pa. Supreme Court Takes Up "Two-Disease" Rule
ASBESTOS UPDATE: Employer Has No Duty in Take Home Exposure Case
ASBESTOS UPDATE: Del. Ct. Allows Suit v. Pneumo Abex to Proceed
ASBESTOS UPDATE: Pa. Ct. Allows GRC Suit to Proceed to Trial
ASBESTOS UPDATE: Md. Ct. Allows Discovery on Bankruptcy Trusts
ASBESTOS UPDATE: Supreme Court Cites 1926 Ruling in LIA Case
*********
ADVENTURES ROLLING: Pays Wages Below Minimum Rates, Suit Claims
---------------------------------------------------------------
Peter Wright and Michelle Trame, individually, on behalf of all
others similarly situated, and on behalf of the general public v.
Adventures Rolling Cross Country, Inc., dba Adventures Cross
Country (ARCC), a California Corporation, Scott Von Eschen, and
Does 1 through 50, inclusive, Case No. cv-1200767 (Calif. Super.
Ct., Marin Cty., February 17, 2012) alleges that from the start of
the Class Period through the present, ARCC and Mr. Von Eschen have
had a consistent policy and practice of flagrantly ignoring and
violating a host of local, California, and federal wage and hour
laws in their adventure travel planning business.
The Plaintiffs argue that the Defendants, among other things, are
paying wage rates well below the minimum wage, fail to pay any
overtime premiums for hours worked over eight hours in a day and
40 hours in a week and fail to provide and authorize and permit
meal and rest periods and fail to pay any premiums for such missed
breaks, as required by law.
Mr. Wright is a resident of San Francisco, California, and was
employed by the Defendants as a Trip Leader for approximately 35
workdays in 2009, working in Mill Valley, in Marin County, and
traveling in his capacity as a Trip Leader under his California
law-based contract to Italy and Greece. Ms. Trame is a resident
of Livermore, California, and was employed by Defendants as a Trip
Leader for approximately 35 workdays in 2009, working in Mill
Valley, in Marin County, and traveling in her capacity as a Trip
Leader under her California law-based contract to Costa Rica and
Belize.
ARCC is a California Corporation with its principal place of
business in Mill Valley, Marin County, California. Mr. Von Eschen
is a co-owner and president, manager/agent of ARCC. The true
names and capacities of Doe Defendants are unknown to the
Plaintiffs at this time.
Adventures removed the lawsuit on February 27, 2012, from the
Superior Court of the state of California, County of Marin, to the
United States District Court for the Northern District of
California. The Company argues that the removal is proper because
a federal court has original jurisdiction over the matter. The
District Court Clerk assigned Case No. 4:12-cv-00982 to the
proceeding.
The Plaintiffs are represented by:
Bryan Schwartz, Esq.
Hillary Jo Baker, Esq.
BRYAN SCHWARTZ LAW
180 Grand Avenue, Suite 1550
Oakland, CA 94612
Telephone: (510) 444-9300
Facsimile: (510) 444-9301
E-mail: Bryan@BryanSchwartzLaw.com
Hillary@BryanSchwartzLaw.com
- and -
David A. Lowe, Esq.
John T. Mullan, Esq.
RUDY EXELROD ZIEFF & LOWE, LLP
351 California St #700
San Francisco, CA 94104
Telephone: (510) 444-9300
Facsimile: (510) 444-9301
E-mail: DAL@rezlaw.com
JTM@rezlaw.com
The Defendants are represented by:
Thad A. Davis, Esq.
Rocky C. Tsai, Esq.
ROPES & GRAY LLP
Three Embarcadero Center, Ste 300
San Francisco, CA 94111-4006
Telephone: (415) 315-6300
Facsimile: (415) 315-6350
E-mail: thad.davis@ropesgray.com
rocky.tsai@ropesgray.com
AGL RESOURCES: Inks Deal to Settle Class Action Suit in Georgia
---------------------------------------------------------------
AGL Resources Inc. entered into an agreement to settle a class
action lawsuit filed against a joint venture owned by the Company
and Piedmont, according to the Company's February 22, 2012, 10-K
filing with the U.S. Securities and Exchange Commission for the
fiscal year ended December 31, 2011.
In February 2008, a class action lawsuit was filed in the Superior
Court of Fulton County in the State of Georgia against Georgia
Natural Gas alleging that it charged its customers of variable
rate plans prices for natural gas that were in excess of the
published price, failed to give proper notice regarding the
availability of potentially lower price plans and that it changed
its methodology for computing variable rates. Georgia Natural Gas
asserts that no violation of law or Georgia Commission rules has
occurred.
This lawsuit was dismissed in September 2008. The plaintiffs
appealed the dismissal of the lawsuit and, in May 2009, the
Georgia Court of Appeals reversed the lower court's order. In
June 2009, Georgia Natural Gas filed a petition for
reconsideration with the Georgia Supreme Court. In October 2009
the Georgia Supreme Court agreed to review the Court of Appeals'
decision. Accordingly, the Georgia Supreme Court held oral
arguments in January 2010. In March 2010 the Georgia Supreme
Court upheld the Court of Appeals' decision. A settlement
agreement was reached with the plaintiffs in December 2011.
SouthStar asserts that no violation of law or Georgia Commission
rules has occurred, however they agreed to settle in order to
avoid the further expense and inconvenience of litigation.
Georgia Natural Gas is the trade name under which SouthStar Energy
Services LLC does business in Georgia. SouthStar, a joint venture
currently owned 85% by the Company and 15% by Piedmont, markets
natural gas and related services to retail customers on an
unregulated basis, primarily in Georgia.
AGL RESOURCES: Class Action Suit Over Nicor Merger Settled in Dec.
------------------------------------------------------------------
AGL Resources Inc. has settled a class action lawsuit filed by
Nicor Inc.'s shareholders in connection with Nicor's merger with
the Company, according to AGL's February 22, 2012, 10-K filing
with the U.S. Securities and Exchange Commission for the fiscal
year ended December 31, 2011.
On December 6, 2010, the Company entered into an Agreement and
Plan of Merger with Nicor Inc. On December 9, 2011, AGL Resources
closed its merger with Nicor and created a combined company with
increased scale and scope in the distribution, storage and
transportation of natural gas.
AGL Resources was named as a defendant in several class action
lawsuits brought by purported Nicor shareholders challenging
Nicor's merger with the Company. The complaints alleged that the
Company aided and abetted alleged breaches of fiduciary duty by
Nicor's Board of Directors. The shareholder actions sought, among
other things, declaratory and injunctive relief, including orders
enjoining the defendants from completing the merger and, in
certain circumstances, damages. This lawsuit was settled on
December 7, 2011.
AGL RESOURCES: Class Action Suit in Ill vs. Nicor Still Pending
---------------------------------------------------------------
A consolidated class action lawsuit filed against Nicor Inc. in
Illinois is pending, according to AGL Resources Inc.'s February
22, 2012, 10-K filing with the U.S. Securities and Exchange
Commission for the fiscal year ended December 31, 2011.
On December 6, 2010, the Company entered into an Agreement and
Plan of Merger with Nicor Inc. On December 9, 2011, AGL Resources
closed its merger with Nicor and created a combined company with
increased scale and scope in the distribution, storage and
transportation of natural gas.
In the first quarter of 2011, three putative class actions were
filed against Nicor Services and Nicor Gas, and in one case
against Nicor. In September 2011, the three cases were
consolidated into a single class action pending in state court in
Cook County, Illinois. The plaintiffs purport to represent a
class of customers of Nicor Gas who purchased appliance warranty
and service plans from Nicor Services and/or a class of customers
of Nicor Gas who purchased the Gas Line Comfort Guard product from
Nicor Services.
In the consolidated action, the plaintiffs variously allege that
the marketing, sale and billing of the Nicor Services appliance
warranty and service plans and Gas Line Comfort Guard violate the
Illinois Consumer Fraud and Deceptive Business Practices Act,
constitute common law fraud and result in unjust enrichment of
Nicor Services and Nicor Gas. The plaintiffs seek, on behalf of
the classes they purport to represent, actual and punitive
damages, interest, costs, attorney fees and injunctive relief.
While AGL Resources is unable to predict the outcome of these
matters or to reasonably estimate its potential exposure related
thereto, if any, and have not recorded a liability associated with
this contingency, the final disposition of this matter is not
expected to have a material adverse impact on its liquidity or
financial condition.
AMERICAN HONDA: Recalls 17,600 Trimmers Due to Laceration Hazard
----------------------------------------------------------------
The U.S. Consumer Product Safety Commission and Health Canada, in
cooperation with American Honda Motor Company, of Torrance,
California, announced a voluntary recall of about 14,000 Grass
Trimmers in the United States of America and 3,600 in Canada.
Consumers should stop using recalled products immediately unless
otherwise instructed. It is illegal to resell or attempt to
resell a recalled consumer product.
The shaft can crack and cause the lower gear case and cutting
attachment to detach, posing a laceration hazard to the operator
and bystanders.
Honda is aware of 11 incidents of broken or cracked shafts. No
injuries have been reported.
The recalled grass trimmer is made by Honda and has the model
number HHT35SUKAT. The trimmer is gas-powered and has a red
engine housing with the word "Honda" on the top front and a
bicycle handlebar-style grip. A label on the shaft includes the
words "Honda" and "HHT35S." Recalled trimmers are in the serial
number range HAHA-1000001 to HAHA-1017345. The serial number is
located on the top side of the shaft below the handlebars.
A picture of the recalled products is available at:
http://www.cpsc.gov/cpscpub/prerel/prhtml12/12121.html
The recalled products were manufactured in the United States of
America and sold at Honda Power Equipment dealers nationwide and
online from May 2006 to February 2012 for between $420 and $430.
Consumers should immediately stop using these trimmers and contact
the nearest Honda Power Equipment dealer to schedule a free
inspection and repair. For more information, contact American
Honda toll-free at (888) 888-3139 between 8:30 a.m. and 5 p.m.
Eastern Time Monday through Friday or visit the American Honda's
Web site at http://powerequipment.honda.com/
ARCELORMITTAL: Discovery in Standard Iron Works Suits Ongoing
-------------------------------------------------------------
Discovery is currently ongoing in connection with the class action
lawsuits filed by direct and indirect purchasers of steel products
against ArcelorMittal, according to the Company's February 22,
2012, 20-F filing with the U.S. Securities and Exchange Commission
for the fiscal year ended December 31, 2011.
On September 12, 2008, Standard Iron Works filed a purported class
action complaint in the U.S. District Court in the Northern
District of Illinois against ArcelorMittal, ArcelorMittal USA LLC,
and other steel manufacturers, alleging that the defendants had
conspired since 2005 to restrict the output of steel products in
order to fix, raise, stabilize and maintain prices at artificially
high levels in violation of U.S. antitrust law. Since the filing
of the Standard Iron Works lawsuit, other similar direct purchaser
lawsuits have been filed in the same court and have been
consolidated with the Standard Iron Works lawsuit. In addition,
two putative class actions on behalf of indirect purchasers have
been filed, one of which has already been consolidated with the
Standard Iron Works cases and one of which ArcelorMittal is
seeking to consolidate. In January 2009, ArcelorMittal and the
other defendants filed a motion to dismiss the direct purchaser
claims. On June 12, 2009, the court denied the motion to dismiss
and the litigation is now in the discovery stage. It is too early
in the proceedings for ArcelorMittal to determine the amount of
its potential liability, if any.
ASBURY AUTOMOTIVE: Ark. Class Action Settlement Approved in Nov.
---------------------------------------------------------------
An Arkansas court approved the settlement of a class action
lawsuit filed against Asbury Automotive Group Inc., according to
the Company's February 22, 2012, 10-K filing with the U.S.
Securities and Exchange Commission for the fiscal year ended
December 31, 2011.
The Company and certain of its subsidiaries were named as
defendants in a class action lawsuit filed in December 2002 in the
Pulaski County circuit court in Arkansas. The lawsuit related to
its Arkansas dealerships' charging certain document preparation
fees and receiving certain interest rate participation amounts
from lenders related to customer arranged financing from November
2000 through November 2006. After various motions and judgments,
in October 2008, the circuit court ruled in favor of the Company
and its subsidiaries on all class action claims and found the
Company and its subsidiaries had no liability. On March 11, 2010,
the plaintiff appealed the circuit court's decisions.
On April 14, 2011, the Supreme Court of Arkansas ruled that the
class may proceed with claims with respect to certain document
preparation fees collected by the Company's subsidiaries from
November 2000 to November 2006, and also reversed the circuit
court's decision not to certify a subclass relating to the
dealerships' interest rate participation. The Supreme Court
remanded the case to the Pulaski County circuit court for further
proceedings. On August 23, 2011, the circuit court granted
preliminary approval to a proposed Class Action Settlement agreed
to by the parties. The Company had previously accrued its best
estimate of probable and reasonably estimable losses of $9.0
million in connection with this matter.
On November 7, 2011, the circuit court approved a class action
settlement previously agreed to by the parties. In connection
therewith, the Company made a payment of approximately $5.4
million in the fourth quarter of 2011.
AXIS CAPITAL: Awaits Final Approval of Antitrust Suit Settlement
----------------------------------------------------------------
Axis Capital Holdings Limited is awaiting final court approval of
an agreement to settle the class action lawsuit filed against its
U.S. insurance subsidiaries, according to the Company's February
22, 2012, 10-K filing with the U.S. Securities and Exchange
Commission for the fiscal year ended December 31, 2011.
In 2005, a putative class action lawsuit was filed against the
Company's U.S. insurance subsidiaries. In re Insurance Brokerage
Antitrust Litigation was filed on August 15, 2005 in the United
States District Court for the District of New Jersey and includes
as defendants numerous insurance brokers and insurance companies.
The lawsuit alleges antitrust and Racketeer Influenced and Corrupt
Organizations Act violations in connection with the payment of
contingent commissions and manipulation of insurance bids and
seeks damages in an unspecified amount.
On October 3, 2006, the District Court granted, in part, motions
to dismiss filed by the defendants, and ordered plaintiffs to file
supplemental pleadings setting forth sufficient facts to allege
their antitrust and RICO claims. After plaintiffs filed their
supplemental pleadings, defendants renewed their motions to
dismiss. On April 15, 2007, the District Court dismissed without
prejudice plaintiffs' complaint, as amended, and granted
plaintiffs thirty (30) days to file another amended complaint
and/or revised RICO Statement and Statements of Particularity. In
May 2007, plaintiffs filed (i) a Second Consolidated Amended
Commercial Class Action complaint, (ii) a Revised Particularized
Statement Describing the Horizontal Conspiracies Alleged in the
Second Consolidated Amended Commercial Class Action Complaint, and
(iii) a Third Amended Commercial Insurance Plaintiffs' RICO Case
Statement Pursuant to Local Rule 16.1(B)(4). On June 21, 2007, the
defendants filed renewed motions to dismiss. On September 28,
2007, the District Court dismissed with prejudice plaintiffs'
antitrust and RICO claims and declined to exercise supplemental
jurisdiction over plaintiffs' remaining state law claims. On
October 10, 2007, plaintiffs filed a notice of appeal of all
adverse orders and decisions to the United States Court of Appeals
for the Third Circuit, and a hearing was held in April 2009. On
August 16, 2010, the Third Circuit Court of Appeals affirmed the
District Court's dismissal of the antitrust and RICO claims
arising from the contingent commission arrangements and remanded
the case to the District Court with respect to the manipulation of
insurance bids allegations.
The Company continued to believe that the lawsuit was completely
without merit and on that basis vigorously defended the filed
action. However, for the sole purpose of avoiding additional
litigation costs, the Company reached an agreement in principal
with the plaintiffs during the first quarter of 2011 to settle all
claims and causes of action in this matter for an immaterial
amount. On June 27, 2011, the District Court preliminarily
approved the terms and conditions of the settlement and are
awaiting issuance of the final settlement order.
CARLISLE FOODSERVICE: Recalls 111T Melamine Mugs Due to Burn Risk
-----------------------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
Carlisle FoodService Products, of Oklahoma City, Oklahoma,
announced a voluntary recall of about 111,000 Food service
beverage cups and mugs. Consumers should stop using recalled
products immediately unless otherwise instructed. It is illegal
to resell or attempt to resell a recalled consumer product.
The cups and mugs can break when exposed to hot liquids, posing a
burn hazard to consumers.
Carlisle has received three reports of cups and mugs breaking. No
injuries were reported.
The nine models of Carlisle cups and mugs were sold in a variety
of sizes from 7 to 16 oz., and in the following colors: white,
green, red, brown, black, ocean blue, sand, honey yellow, bone and
sunset orange. They are approximately 2 to 3 inches tall and are
made of melamine. The name "Carlisle OKC, OK" and model number
are imprinted on the bottom, along with "Made in China" and "NSF."
Some may also include the model name and size, ex. "Durus 7 oz
cup." Cups and mugs included in this recall are:
Name Size Model Number
---- ---- ------------
Sierrus(TM) Mug 7.8 oz Model # 33056
Durus(R) Challenge Cup 7.8 oz Model # 43056
Dallas Ware(R) Stacking Cup 7 oz Model # 43546
Dayton(TM) Stacking Cup 7 oz Model # 43870
Kingline(TM) Ovide Cup 7 oz Model # KL300
Kingline(TM) Stacking Cup 7 oz Model # KL111
Melamine Stackable Mug 8 oz Model # 4510
Cappuccino Mug 12 oz Model # 4812
Cappuccino Mug 16 oz Model # 4816
Pictures of the recalled products are available at:
http://www.cpsc.gov/cpscpub/prerel/prhtml12/12120.html
The recalled products were manufactured in China and sold
nationally through distributor outlets and online, including food
service companies, broadliners and equipment supply distributors.
The mugs were sold between January 2011 and January 2012 for
between $4 and $10 each.
Consumers should stop using the mugs immediately and return them
to Carlisle for credit toward a future purchase of Carlisle
FoodService Products merchandise. Carlisle will provide
instructions for free return shipping. For additional
information, contact Carlisle FoodService Products at
(800) 217-8859 between 8:30 a.m. and 4:30 p.m. Central Time Monday
through Friday, or visit the firm's Web site at
http://www.carlislefsp.com/productsafety/
CLECO CORPORATION: Continues to Defend "Opelousas" Class Suits
--------------------------------------------------------------
Cleco Corporation continues to defend itself from two class action
lawsuits filed on behalf of residents in Opelousas, Louisiana,
according to the Company's February 22, 2012 Form 10-K filing with
the U.S. Securities and Exchange Commission for the year ended
December 31, 2011.
On March 9, 2010, a complaint was filed in the 27th Judicial
District Court of St. Landry Parish, State of Louisiana, on behalf
of three Cleco Power customers in Opelousas, Louisiana. The
complaint alleges that Cleco Power overcharged the plaintiffs by
applying to customers in Opelousas the same retail rates as Cleco
Power applies to all of its retail customers. The plaintiffs
claim that Cleco Power owes customers in Opelousas more than $30.0
million as a result of the alleged overcharges. The plaintiffs
allege that Cleco Power should have established, solely for
customers in Opelousas, retail rates that are separate and
distinct from the retail rates that apply to other customers of
Cleco Power and that Cleco Power should not collect from customers
in Opelousas the storm surcharge approved by the LPSC following
hurricanes Katrina and Rita. Cleco Power currently operates in
Opelousas pursuant to a franchise granted to Cleco Power by the
City of Opelousas in 1986 and an operating and franchise agreement
dated May 14, 1991, pursuant to which Cleco Power operates its own
electric facilities and leases and operates electric facilities
owned by the City of Opelousas. In April 2010, Cleco Power filed
a petition with the LPSC appealing to its expertise in declaring
that the ratepayers of Opelousas have been properly charged the
rates that are applicable to Cleco Power's retail customers and
that no overcharges have been collected. In addition, Cleco Power
removed the purported class action lawsuit filed on behalf of
Opelousas electric customers from the state court to the U.S.
District Court for the Western District of Louisiana in April
2010, so that it could be properly addressed under the terms of
the Class Action Fairness Act. On May 11, 2010, a second class
action lawsuit was filed in the 27th Judicial District Court of
St. Landry Parish, State of Louisiana, repeating the allegations
of the first complaint, which was submitted on behalf of 249
Opelousas residents. Cleco Power has responded in the same manner
as with the first class action lawsuit. On September 29, 2010,
the federal court remanded both cases to the state court in which
they were originally filed for further proceedings. On January
21, 2011, the presiding judge in the state court proceeding ruled
that the jurisdiction to hear the two class actions resides in the
state court and not with the LPSC as argued by both Cleco and the
LPSC Staff. Both Cleco and the LPSC Staff appealed this ruling to
the Third Circuit Court of Appeals for the State of Louisiana
(Third Circuit). On September 9, 2011, the Third Circuit denied
both appeals. On October 10, 2011, both Cleco and the LPSC
appealed the Third Circuit's ruling to the Louisiana Supreme
Court. On November 23, 2011, the Louisiana Supreme Court granted
the appeals and remanded the case to the Third Circuit for further
briefing, argument, and opinion. On February 7, 2011, the
administrative law judge (ALJ) in the LPSC proceeding ruled that
the LPSC has jurisdiction to decide the claims raised by the class
action plaintiffs. At its December 14, 2011, Business and
Executive Session, the LPSC adopted the ALJ's recommendation that
Cleco be granted summary judgment in its declaratory action
finding that Cleco's ratepayers in the City of Opelousas have been
served under applicable rates and policies approved by the LPSC
and Cleco's Opelousas ratepayers have not been overcharged in
connection with LPSC rates or ratemaking. On January 30, 2012,
the class action plaintiffs filed their appeal of such LPSC
decision to the nineteenth Judicial District Court for Baton Rouge
Parish, State of Louisiana. On February 15, 2012, the Third
Circuit ruled that the State Court, and not the LPSC, has
jurisdiction to hear the case. Cleco Power plans to seek another
writ from the Louisiana Supreme Court asking that it overturn the
Third Circuit decision and confirm the LPSC's exclusive
jurisdiction over this matter. In view of the uncertainty of the
claims, management is not able to predict or give a reasonable
estimate of the possible range of liability, if any, of these
claims, the Company said. However, if it is found that Cleco
Power overcharged customers resulting in a refund, any such refund
could have a material adverse effect on the Registrants' results
of operations, financial condition, and cash flows, the Company
added.
COLLIER COUNTY, FL: Awaits Ruling in Red-Light Camera Settlement
----------------------------------------------------------------
Aisling Swift, writing for Naples Daily News, reports that more
than two years after a pair of Collier County drivers filed a
class-action lawsuit alleging the county's red-light cameras were
illegal, a circuit judge on Feb. 28 was set to be asked to approve
a roughly $665,000 settlement to end the legal battle.
Of that settlement, the county will pay about half -- $345,820,
collected from the tickets, not taxpayers -- with the camera
vendor, American Traffic Solutions, paying the rest.
"It proves that the county went overboard," said Rita "Carol"
Siegel, 68, of Golden Gate, one of the two plaintiffs who sued.
However, the settlement does not affect the tickets issued after
July 1, 2010, when a new state law legalized the cameras on state
roads.
In fact, the motion to approve the settlement will be heard just
hours after county commissioners are set to consider a related
settlement that will resolve unpaid fees to ATS, while also
agreeing to pay it $28,500 monthly to continue operating the
system for the next 10 years.
If approved, the settlement would end one of 21 class-action
lawsuits filed by drivers statewide, who claimed the cameras were
illegal. No county taxpayer money will be used to resolve the
litigation, just roughly $1 million in ticket revenues held by the
county in an escrow account containing just over $2 million; ATS
service fees make up the remainder of the account.
"Collier County was fortunate because our leaders were farsighted
enough to keep these moneys in escrow," said Assistant County
Attorney Steve Williams, who negotiated the settlement with
attorneys for the drivers and ATS. "Some counties did not and
they didn't have the money."
"The real story here is there's a potential $700,000 that goes
into county coffers. It's all ticket money," he said.
ATS spokesman Charles Territo said about 28,000 citations were
doled out from April 2009 to July 1, 2010, the period involved in
the settlement.
"ATS is pleased to put this issue to rest," Mr. Territo said. "We
look forward to working with the county to continue their efforts
to enhance road safety."
Circuit Judge Cynthia Pivacek was on Feb. 28 set to hold a brief
hearing and grant or deny settlement. Both the county and ATS
will pay roughly a third of their share of the ticket revenues
they collected before the Legislature legalized the cameras.
The lawsuit, filed in August 2009, alleged the cameras were money
makers for the county and ATS, and presumed drivers were guilty,
requiring them to prove they weren't driving the vehicle at the
time.
Although the lawsuit alleged the county and ATS unjustly deprived
drivers out of their money by improperly billing them, the
settlement does not admit liability. However, it puts an end to
litigation that could have lasted three to five years and cost the
county up to $1.9 million in claims, settlement documents show.
County commissioners unanimously approved the settlement in June,
as part of a larger consent agenda.
The lawsuit was filed by attorney Jason Weisser of West Palm
Beach, who will receive 30 percent of the full settlement.
Mr. Weisser, who filed all 21 lawsuits in Florida, could not be
reached for comment on Feb. 27.
Attorneys generally receive 30 percent of settlements.
News reports show the city of Hallandale Beach settled its class-
action lawsuit for $332,445, while ATS paid $43,221. City of
Pembroke Pines officials approved a $106,589 settlement, with ATS
paying an additional $28,667, records show.
Mr. Williams, the assistant county attorney, said once the judge
approves the settlement, the county has 90 days to mail postcards
to the recipients of 28,000 citations issued by the 19 red-light
cameras installed at a dozen intersections countywide. He said
drivers who want to join the class have 90 days from receipt of
the postcards to mail them to join and receive a portion of the
settlement.
An executive summary written by County Attorney Jeffrey Klatzkow
and presented to commissioners said it was unlikely more than a
few would opt to file separate lawsuits, rather than joining
members of the class action.
Once the deadline is over, the law requires a judge to certify the
class. County commissioners would then have a final vote to pay
the members of the class.
Anyone who received a citation prior to July 1, 2010, can join,
even if the driver beat the ticket and won, Mr. Williams said.
As of Jan. 31, state Department of Revenue records show Collier
collected $339,968 in $158 citations during the fiscal year
beginning July 2011.
Out of the 65 municipalities with cameras, Miami tops the list
with $2.09 million collected since July 1.
COMMERCE BANCSHARES: Bank Awaits Approval of $18.3MM Settlement
---------------------------------------------------------------
A wholly-owned bank of Commerce Bancshares, Inc., is awaiting
court approval of an $18.3 million class settlement entered in
December 2011, according to the Company's February 22, 2012 Form
10-K filing with the U.S. Securities and Exchange Commission for
the year ended December 31, 2011.
In December 2011, Commerce Bank reached a class-wide settlement in
a class action lawsuit captioned Wolfgeher v. Commerce Bank, Case
No. 1:10-cv-22017 (MDL 2036) which alleged that the Bank had
improperly charged overdraft fees on certain debit card
transactions and claimed refunds for the plaintiff individually
and on behalf of other customers as a class. The settlement,
subject to documentation and court approval, provides for a
payment of $18.3 million into a class settlement fund, the
proceeds of which will be used to issue refunds to class members
and to pay attorneys' fees, administrative and other costs, in
exchange for a complete release of all claims asserted against the
Bank. The Wolfgeher law suit was originally filed on April 6,
2010 in the U.S. District Court for the Western District of
Missouri, and was transferred to the U.S. District Court for the
Southern District of Florida as part of the multi-district
litigation referred to as In re Checking Account Overdraft
Litigation. The Bank, while admitting no wrongdoing, agreed to
the settlement in order to resolve the litigation and avoid
further expense. A second suit alleging the same facts and also
seeking class-action status was filed on June 4, 2010 in Missouri
state court. The second suit continues to be stayed in deference
to the earlier filed suit, and it is expected that resolution of
the Wolfgeher suit will also dispose of the Missouri state court
suit.
COMSCORE INC: Still Faces Class Action Suit in Illinois
-------------------------------------------------------
A class action litigation filed against Comscore Inc. in Illinois
is still pending, according to the Company's February 22, 2012,
10-K filing with the U.S. Securities and Exchange Commission for
the fiscal year ended December 31, 2011.
On August 23, 2011, the Company received notice that Mike Harris
and Jeff Dunstan, individually and on behalf of a class of
similarly situated individuals, filed a lawsuit against the
Company in the United States District Court for the Northern
District of Illinois, Eastern Division, alleging, among other
things, violations of the Stored Communications Act, the
Electronic Communications Privacy Act, Computer Fraud and Abuse
Act and the Illinois Consumer Fraud and Deceptive Practices Act as
well as unjust enrichment. The complaint seeks unspecified
damages, including statutory damages per violation and punitive
damages, injunctive relief and reasonable attorneys' fees of the
plaintiffs. Based on an initial review of these claims, the
Company believes that they are without merit, and it intends to
vigorously protect and defend itself.
DAVID KARAS: Judge Allows Investors' Class Action to Proceed
------------------------------------------------------------
Cheryl Browne, writing for Barrie Examiner, reports that a judge
has paved the way for a class-action lawsuit against two former
Barrie financial advisers and a handful of companies they owned or
worked for.
Ontario Superior Court Justice J.B. Shaughnessy approved the
certification of a class-action proceeding against David Karas and
James Stephenson by Phelpston farmer George French and Bruce and
Edith Smith of Barrie.
Justice Shaughnessy found enough common ground between the two
complainants' lawsuits to join them, and possibly many more Barrie
and area families, together in the suit against Mr. Karas,
Mr. Stephenson and Financial Victory Associates, Investia
Financial Services, Money Concepts Barrie (MCB) and Diamond Tree
Capital.
None of the allegations have been proven in court.
Lawyers Harold Geller and John Hollander, who specialize in
financial loss recovery for the Ottawa law firm Doucet McBride
LLP, are representing French.
"This is really a consumer protection issue," Mr. Geller said.
"This isn't a buyer beware issue. If you go to an auction, that's
buyer beware. If you go to a professional who works for a major
corporation, that's supposed to take the risk out of the
equation."
Mr. Karas could not be reached for comment.
In the original statement of claim filed last spring, Mr. Geller
and Mr. Hollander filed suit on behalf of Mr. French for C$1.5
million after he allegedly lost just under C$900,000.
According to the claim, Mr. French incurred financial losses
relating to unnecessary life insurance, as well as lost tax and
investment opportunities and being advised to take part in
leveraging schemes arranged by Mr. Karas, leaving Mr. French in
financial peril.
In the Smiths' claim, they are a senior couple living on
disability checks who were encouraged to buy mutual funds and
other investments through the leveraging scheme, by borrowing up
to $100,000 through Stephenson.
Mr. French's claim includes C$250,000 for peace of mind, and $1
million for aggravated and punitive damages.
In his decision on Feb. 24, Justice Shaughnessy noted, "It is
alleged that Karas and Stephenson recommended the leveraging
scheme systemically and that MCB arranged the loans for the
clients."
Effectively, it is alleged that clients invested money they did
not have, which increased the AUM (assets under his management)
managed by Investia, and consequently, fees for Karas, Stephenson
and Investia."
Further, Justice Shaughnessy wrote, "It is alleged that Investia
knew or ought to have known, of the leveraging scheme that was
being applied systemically by Karas and Stephenson through MCB.
It is stated that Investia had a duty of increased monitoring of
Karas and Stephenson and failed to do so."
Hollander estimates there may be approximately 400 to 500 families
in the Barrie area who could join the suit against the former
investors groups.
"Since 2008, there have been new regulations suggesting only so
much money -- based on income -- should go into a leveraged
investment," Mr. Hollander said. "Investia had its own guidelines
in place, and it would seem they ignored their own internal
guidelines."
Previously, the Money Concepts franchise in Barrie was that
company's top Canadian branch for sales performance between 1988
and 2009, and top international branch from 1993 to 2009,
according to the claim.
Mr. French and his late father, Elmer, ran a farm north of Barrie.
They invested their savings in guaranteed investment certificates
(GICs), but when his father died in 1999, the son inherited the
farm and their joint savings.
The claim says Mr. French, a 58-year-old former dairy farmer,
hoped to protect C$300,000 in savings for retirement by seeking
financial advice.
"The farmer fell victim to investment strategies designed to
generate compensation for the adviser at the expense of the
adviser's clients," the claim reads.
When the bottom fell out of the market in 2009, Mr. French's
portfolio was "decimated," according to the claim.
Mr. French began with C$350,000 and ended up owing C$500,000.
The claim says Mr. Karas advised and arranged for Mr. French, who
never married and has no dependents, to purchase life, critical
care and long-term care insurance, even though he had no plans to
leave behind an estate. The C$22,000 in annual premiums were also
more than Mr. French's disposable income.
Mr. French had been dealing with Mr. Karas since 2003. His
portfolio contained high-risk investments, such as smaller
companies or those in emerging markets, according to the claim.
The claim says Financial Victory was supposed to provide computer-
generated market-timing alerts at specified percentage points that
would signal the appropriate time to buy or sell mutual funds.
The claim also says there was a "stop-loss trigger," meaning a
client would not have to call the financial adviser, "safe in the
knowledge that the adviser would liquidate poorly performing
holdings without further instruction."
The claim says Mr. French continued to pay fees for that service,
even when it was terminated after two years and Mr. French hadn't
been informed.
In his decision, Justice Shaughnessy wrote: "The proposed class
action is on behalf of a class of persons all of whom were clients
of Karas or Stephenson who participated in the leveraging scheme
through MCB and held leveraged investments at MCB prior to the
branch closing on or about March 2010."
DR PEPPER: "Jones" Suit v. Unit Remains Pending in California
-------------------------------------------------------------
In 2007, one of Dr. Pepper Snapple Group, Inc.'s subsidiaries,
Seven Up/RC Bottling Company Inc., was sued by Robert Jones in the
Superior Court in the State of California (Orange County),
alleging that its subsidiary failed to provide meal and rest
periods and itemized wage statements in accordance with applicable
California wage and hour law. The case was filed as a class
action. The parties have reached a settlement in the case,
pursuant to which the Company denied any liability or wrongdoing
and reserved all rights, but agreed to a compromise to end
litigation and to pay approximately $4 million, which amount was
accrued as of June 30, 2010. The termination of the case is
subject to the satisfaction of the terms and conditions of the
settlement agreement.
No updates to the action was reported in the Company's
February 22, 2012 Form 10-K filing with the U.S. Securities and
Exchange Commission for the year ended December 31, 2011.
ENERGY TRANSFER: Class Action Suit Over SUG Merger Pending
----------------------------------------------------------
Energy Transfer Equity L.P. continues to defend itself from class
action lawsuits filed by stockholders of Southern Union Company in
connection with their merger, according to Energy Transfer
Partners L.P.'s February 22, 2012, 10-K filing with the U.S.
Securities and Exchange Commission for the fiscal year ended
December 31, 2011.
On July 19, 2011, Energy Transfer Equity L.P. entered into a
Second Amended and Restated Agreement and Plan of Merger with
Sigma Acquisition Corporation, a Delaware corporation and wholly-
owned subsidiary of ETE, and Southern Union Company, a Delaware
corporation. The SUG Merger Agreement modifies certain terms of
the Amended and Restated Agreement and Plan of Merger entered into
by ETE, Sigma and SUG on July 4, 2011. Under the terms of the SUG
Merger Agreement, Sigma will merge with and into SUG, with SUG
continuing as the surviving entity and becoming a wholly-owned
subsidiary of ETE, subject to certain conditions to closing.
On July 19, 2011, ETP entered into the Amended Citrus Merger
Agreement pursuant to which it is anticipated that Southern Union
Company will cause the contribution to ETP of a 50% interest in
Citrus Corp., which owns 100% of the Florida Gas Transmission
pipeline system, in exchange for approximately $1.895 billion in
cash and $105 million of ETP's Common Units, contemporaneous with
the completion of the merger between SUG and ETE pursuant to the
SUG Merger Agreement.
In connection with the SUG Merger, purported stockholders of SUG
have filed several stockholder class action lawsuits against ETE,
SUG, and the SUG Board of Directors in the District Courts of
Harris County, Texas and in the Delaware Courts of Chancery.
Among other remedies, the plaintiffs may seek to enjoin the SUG
Merger. If a final settlement is not reached, or if a dismissal
is not obtained, these lawsuits could prevent or delay completion
of the SUG Merger, which in turn could prevent or delay the
completion of the Citrus Acquisition.
FREEDOM COMMUNICATIONS: Settles Class Action for $30 Million
------------------------------------------------------------
California business litigation firm Callahan & Blaine on Feb. 28
disclosed that a final settlement in the Orange County Register
class action case (Gonzalez, et al. v. Freedom Communications,
Inc., et al., Orange County Superior Court, Case No. 03CC08756)
has been reached. In the settlement, the directors and officers
of Freedom Communications, the parent of the OC Register, agreed
to pay $15.5 million -- in addition to an earlier $14.5 million
paid in 2010 -- to resolve the carriers' class action against the
OC Register. The final $30 million settlement brings closure to
litigation that had been ongoing for nearly a decade.
The class action case was initially filed in the Orange County
Superior Court in 2003 and then proceeded through the litigation
process, culminating in seven weeks of jury trial before it was
settled in January of 2009 for $38 million. While the plaintiff
newspaper carriers won the battle, Freedom filed bankruptcy on
September 1, 2009, and sought to eliminate this obligation through
bankruptcy one week before the agreed payment date.
Daniel J. Callahan of Callahan & Blaine, who has successfully
represented the newspaper carriers since 2003, was elected
chairman of Freedom's unsecured creditors committee, eventually
negotiating a $14.5 million advance payment to the unsecured
creditors, 98 percent of which comprised the class action
plaintiffs. At that time, Mr. Callahan also negotiated an
assignment of Freedom's rights against its own directors and
officers.
Promptly thereafter, Mr. Callahan formed a litigation trust and
filed a lawsuit against Freedom's directors and officers before
Judge Andrew Gilford in federal court in Santa Ana, California
(Skorheim v. Flanders, et al., United States District Court for
the Central District of California, Case No. SACV10-789 AG
(MLGx)). With trial set for July 3, 2012, the parties mediated
their dispute and agreed to a payment from the directors and
officers in the amount of $15.5 million.
Daniel J. Callahan of Callahan & Blaine, the lead trial lawyer in
both the underlying class action and in the directors and officers
lawsuit, stated: "This was a long fought battle over many years,
but now has been brought to closure. This will result in
substantial payments to over 3,000 Orange County residents who
dutifully delivered newspapers in the early morning hours for many
years."
David J. Darnell of Callahan & Blaine, who found key evidence in
the case, stated: "The trust uncovered substantial evidence that
the board put their own self-interest above the best interests of
the company and even changed its own board meeting minutes, after
the fact, in an effort to cover up the board's wrongdoings."
GEEKNET INC: Plaintiffs Drop Shareholder Suit in New York
---------------------------------------------------------
The plaintiffs in a shareholder lawsuit filed in connection with
Geeknet Inc.'s initial public offering dropped their suit against
the Company, according to the Company's February 22, 2012, 10-K
filing with the U.S. Securities and Exchange Commission for the
fiscal year ended December 31, 2011.
In January 2001, the Company, two of its former officers, and
Credit Suisse First Boston, the lead underwriter in the Company's
initial public offering, were named as defendants in a shareholder
lawsuit filed in the U.S. District Court for the Southern District
of New York, later consolidated and captioned In re VA Software
Corp. Initial Public Offering Securities Litigation, 01-CV-0242.
The plaintiffs' class action suit seeks unspecified damages on
behalf of a purported class of purchasers of the Company's common
stock from the time of the Company's initial public offering in
December 1999 through December 2000. On January 9, 2012, the
matter was withdrawn with prejudice by the Plaintiffs.
GREENLEE TEXTRON: Recalls 1,800 Folding Pocket Utility Knives
-------------------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
Greenlee Textron Inc., of Rockford, Illinois, announced a
voluntary recall of about 1,800 folding pocket utility knives.
Consumers should stop using recalled products immediately unless
otherwise instructed. It is illegal to resell or attempt to
resell a recalled consumer product.
The blade locking mechanism can fail, allowing the blade to fold
inward toward the handle, posing a laceration hazard.
The firm has received one report of the blade lock failing. No
injuries have been reported.
This recall involves Greenlee Hawk Bill folding pocket utility
knives with model numbers 0652-27 and UT652-27. The models are
identical. Each has a single curved 2.6-inch stainless steel
blade and a 4-inch green and black plastic handle. The Greenlee
name and logo are printed on the blade. Model numbers are printed
in the upper right corner of the boxes in which the knives are
packaged. Pictures of the recalled products are available at:
http://www.cpsc.gov/cpscpub/prerel/prhtml12/12119.html
The recalled products were manufactured in China and sold
distributors of professional tools and products nationwide from
September 2011 through November 2011 for about $20.
Consumers should immediately stop using the recalled knife and
return it to the distributor for a full refund. For additional
information, contact Greenlee toll-free at (800) 435-0786
between 8:00 a.m. and 5:00 p.m. Central Time or visit the firm's
Web site at http://www.greenlee.com/
HECLA MINING: Faces Two Stockholder Suits in Idaho
--------------------------------------------------
Hecla Mining Company is facing two stockholder lawsuits in a
federal court in Idaho, according to the Company's February 22,
2012 Form 10-K filing with the U.S. Securities and Exchange
Commission for the year ended December 31, 2011.
On February 1, 2012, a purported Hecla stockholder filed a
putative class action lawsuit in U.S. District Court for the
District of Idaho against Hecla and certain of the Company's
officers, one of whom is also a director. The complaint,
purportedly brought on behalf of all purchasers of Hecla common
stock from October 26, 2010 through and including January 11,
2012, asserts claims under Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934 and Rule 10b-5 promulgated
thereunder and seeks, among other things, damages and costs and
expenses. Specifically, the complaint alleges that Hecla, under
the authority and control of the individual defendants, made
certain false and misleading statements and allegedly omitted
certain material information. The complaint alleges that these
actions artificially inflated the market price of Hecla common
stock during the class period, thus purportedly harming investors.
A second suit was filed on February 14, 2012, alleging virtually
identical claims. The Company said it cannot predict the outcome
of the proceedings or an estimate of damages, if any. The Company
believes the claims are without merit and intends to defend
against them vigorously.
KENNETH COLE: Faces Second Suit Over Going Private Transaction
--------------------------------------------------------------
Sanjay Israni, individually and on behalf of all others similarly
situated v. Kenneth D. Cole, Paul Blum, Michael Blitzer, Robert
Grayson, Denis Kelly, Philip Peller, Kenneth Cole Productions,
Inc., Case No. 650526/2012 (N.Y. Sup. Ct., February 24, 2012) is
brought on behalf of a class consisting of all shareholders of the
Company, excluding the Defendants and their affiliates, in
connection with the contemplated management-lead buyout by Mr.
Cole of KCP, which was publicly announced on February 24, 2012.
The Proposed Transaction fails to provide any adequate or even
meaningful premium to the Company's public shareholders, despite
the loss of their investment in the Company and its prospects if
the Proposed Transaction is consummated, Mr. Israni contends. He
alleges that the offer provides shareholders with a 26% premium
over the 45-day average trading price but does not accurately
reflect the true and underlying value of the Company.
Mr. Israni, a resident of New Jersey, is a shareholder of the
Company.
KCP, a New York corporation, designs, sources, and markets a range
of fashion footwear, handbags, and apparel in the United States
and internationally. Mr. Cole founded the Company in 1982, and
has served as the Company's Chairman of the Board since its
inception in 1982 and was also President until
February 2002 and Chief Executive Officer until May 2008. He is
currently the Company's Chief Creative Officer, and the Company's
controlling stockholder, owning approximately 47% of KCP common
stock and approximately 89% of the voting power of the Company.
The other Individual Defendants are officers and directors of KCP.
The Plaintiff is represented by:
Gregory Mark Nespole, Esq.
WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP
270 Madison Avenue
New York, NY 10016
Telephone: (212) 545-4600
Facsimile: (212) 686-0114
E-mail: nespole@whafh.com
- and -
Marc S. Henzel, Esq.
LAW OFFICES OF MARC S. HENZEL
431 Montgomery Avenue, Suite B
Merion Station, PA 19066
Telephone: (610) 660-8000
Facsimile: (610) 660-8080
E-mail: Mhenzel@Henzellaw.com
KV PHARMA: Class Action Settlement Gets Preliminary Court Okay
--------------------------------------------------------------
Class Counsel Harwood Feffer LLP and Stember Feinstein Doyle Payne
& Kravec and KV Pharmaceutical Company on Feb. 28 disclosed that a
settlement has been preliminarily approved by the United States
District Court for the District of Missouri in a consolidated
class action lawsuit, Crocker and Bodnar v. KV Pharmaceutical
Company, et al., Civil Action No.4:09-cv-00198, against KV
Pharmaceutical Company, and certain of its former officers and
directors, alleging breaches of fiduciary duties under the
Employee Retirement Income Security Act of 1974 ("ERISA").
The Class consists of all participants of the KV Pharmaceutical
Fifth Restated Profit Sharing Plan and Trust who were invested in
Class A and/or Class B shares of KV Pharmaceutical common stock in
their individual accounts in the Plan at any time during the
period starting on February 2, 2003 and ending on February 3,
2011, and as to each such Person, his, her, or its beneficiaries,
alternate payees (including spouses of deceased Persons who were
Plan participants), and Successors-in-Interest, but excluding the
Defendants.
This settlement will provide for a payment of $3 million to the
Plan (minus Court-approved attorneys' fees and expenses), which
will then be allocated to the accounts of participants of the Plan
who had portions of their Plan accounts invested in KV
Pharmaceutical Class A and/or Class B common stock during the
Class Period. You do not need to send in a claim or take any
other action to participate in the Settlement. If you qualify, you
will receive an allocation.
The Court will hold a hearing at 9:30 a.m. on May 4, 2012, in the
Courtroom of Judge Carol E. Jackson of the United States District
Court, Eastern District of Missouri, 111 South 10th Street, Suite
3.300, St. Louis, MO 63102, to consider whether to give final
approval to the Settlement, the proposed Plan of Allocation, and a
request by the attorneys representing all Settlement Class members
for an award of attorneys' fees and reimbursement of expenses, as
well as for Case Contribution Awards to the Named Plaintiffs. If
approved, these amounts will be paid from the Settlement Fund.
You may ask to speak at the hearing by filing a Notice of
Intention to Appear, but you are not required to do so. Although
you cannot opt out of the Settlement, you may object to all or any
part of the Settlement in accordance with the Notice.
If you are a Settlement Class member and have not received a copy
of the long-form Notice of Class Action Settlement that the Court
has approved for distribution to Settlement Class members, and
would like to receive additional information or a copy of the
long-form Notice, please visit http://www.berdonclaims.comor call
toll-free 800-766-3330 and identify yourself as a Settlement Class
member.
Inquiries should NOT be directed to the Court or the Clerk of the
Court or to:
KV Pharmaceutical Berdon Claims Administration LLC
Customer Service: 800-766-3330
Web site: http://www.berdonclaims.com
LARSEN & TOUBRO: Claims in Discrimination Class Action Upheld
--------------------------------------------------------------
Asian Tribune reports that the federal court in New Jersey has
upheld class claims for sex discrimination against India-based
Larsen & Toubro, and its U.S. subsidiary L&T Infotech.
The lawsuit seeks damages of not less than $20 million on behalf
of a class of about 1,500 past and present women employees, and
injunctive and declaratory relief to stop further misconduct.
The lawsuit, brought by New York attorney Krishnan Chittur on
behalf of a former L&T employee Deepa Shanbhag, alleges that L&T
Infotech, LLC, a subsidiary of the engineering giant Larsen &
Toubro of Mumbai, discriminated against her and other women
employees on grounds of sex and pregnancy.
According to the complaint, L&T hired Ms. Shanbag after she had
worked as an independent contractor with them for several months.
L&T consistent praised her performance, but fired her the day
after she informed them of her pregnancy. The complaint details
allegations of unrelenting barrage of sexual harassment and
criticism of women employees from Defendants' managers. L&T
fostered an intense climate of hostility towards women at the
workplace that was both subjectively and objectively threatening
to Ms. Shanbhag and other Class members, interfering with their
ability to perform their work, it said. L&T had moved to dismiss
the entire lawsuit.
By an order of February 14, 2012, the Court upheld most of the
claims. While it dismissed class claims under federal law, it
upheld those claims under New Jersey law. L&T Infotech is a New
Jersey company. "We are delighted with the Court's decision" said
Mr. Chittur. "Now L&T will have to answer before a jury for its
maltreatment of women, and pay these women compensation for what
these women had to suffer."
The top Indian software exporter L&T Infotech, a subsidiary of
engineering and construction conglomerate L&T, is among the first
Indian companies to be accused of discriminating against pregnant
women employees in the US.
An L&T Infotech official said Ms. Shanbhag lost her job because
the "position had expired, and there was no mala fide intention in
the termination". "We have not violated any employment law
provisions. The company has a strong written code and believes in
providing a workplace free of any kind of harassment," he said.
The class action complaint alleges an intensely hostile work
environment permeated with harassment and verbal abuse, which the
company by failing or refusing to act or take remedial action,
condoned.
So far, the only high profile US lawsuit involving an Indian firm
in a sexual harassment case was by Reka Maximovitch against
Infosys and Phaneesh Murthy, who was head of global sales in
Infosys.
"We want to affect a corporate change," said Mr. Chittur.
"Usually, affected employees don't come forward because they are
afraid they will lose their jobs. There is also a certain stigma
and hesitation attached to such cases, so we don't expect people
to come forward at this stage," he said.
The class action compliant asks that "not less that $20 million,
as may be determined after discovery and trial including without
limitation back pay, front pay, benefits, and such other amounts"
be awarded to Ms. Shanbhag and the class members. It also asks
for reinstatement of all class members who may be desirous of it,
and that the company "institute and implement policies, practices
and programs to provide equal employment opportunities for women."
LOEWS CORPORATION: Insurance Units Await Class Settlement Approval
------------------------------------------------------------------
Loews Corporation's insurance subsidiaries are awaiting final
approval of a consolidated class action settlement, according to
the Company's February 22, 2012 Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended December 31,
2011.
In August 2005, CNA Financial Corporation and certain insurance
subsidiaries were joined as defendants, along with other insurers
and brokers, in multidistrict litigation pending in the United
States District Court for the District of New Jersey, In re
Insurance Brokerage Antitrust Litigation, Civil No. 04-5184
("GEB"). The plaintiffs' consolidated class action complaint
alleged bid rigging and improprieties in the payment of contingent
commissions in connection with the sale of insurance. After
various motions and preliminary court rulings providing for
further proceedings, all parties executed final settlement
documents and the plaintiffs filed a motion for preliminary
approval of the settlement in May 2011. In June 2011, the Court
entered an order preliminarily approving the settlement. A
fairness hearing was held in September 2011 to determine final
approval of the settlement. The Court took the matter under
advisement and will issue a ruling in due course. The Company
said, as currently structured, the settlement will not have a
material impact on the Company's results of operations or equity.
In addition, the Company does not believe it has any material
ongoing exposure relating to this matter.
LUMBER LIQUIDATORS: Awaits Ruling on Class Certification Motion
---------------------------------------------------------------
Lumber Liquidators Holdings, Inc., is awaiting a court ruling on a
motion for class certification filed in a lawsuit against its
former parent, according to the Company's February 22, 2012 Form
10-K filing with the U.S. Securities and Exchange Commission for
the year ended December 31, 2011.
On September 3, 2009, a former store manager and an assistant
store manager at the time filed a putative class action suit
against Lumber Liquidators, Inc., the Company's former parent, in
the Superior Court of California in and for the County of Alameda.
The Plaintiffs allege that with regard to certain groups of
current and former employees in LLI's California stores, LLI
violated California law by failing to calculate and pay overtime
wages properly, provide meal breaks, compensate for unused
vacation time, reimburse for certain expenses and maintain
required employment records. The Plaintiffs also claim that LLI
did not calculate and pay overtime wages properly for certain of
LLI's non-exempt employees, both in and out of California, in
violation of federal law. In their suit, the Plaintiffs seek
compensatory damages, certain statutory penalties, costs,
attorney's fees and injunctive relief.
LLI removed the case to the United States District Court for the
Northern District of California. In an order dated March 2, 2011,
the court denied without prejudice the Plaintiffs' motion for
conditional class certification of non-exempt employees throughout
the country. On December 30, 2011, the Plaintiffs filed a motion
for class certification of the proposed California employee
classes. The Court has not yet ruled on that motion. LLI said it
intends to continue to defend the claims in this suit vigorously.
While there is a reasonable possibility that a material loss may
be incurred, LLI said cannot estimate the loss or range of loss,
if any, to the Company at this time.
NCAA: Athletes Can't Compel Fox's & Big 10's Production of Docs.
----------------------------------------------------------------
Nick McCann at Courthouse News Service reports that a federal
judge ruled that the Big Ten Conference and Fox Broadcasting do
not have to produce confidential documents in a class action that
claims the NCAA forced thousands of college athletes to sign away
rights to their own images and cheated them of a share in the
profits from DVD and video games.
In the 2009 class action filed in San Francisco, former UCLA
basketball star Edward O'Bannon claimed the NCAA forced students
to sign the misleading "Form 08-3a" if they wished to play NCAA
sports. Mr. O'Bannon said the agreement "commercially exploits
former student athletes" by giving the NCAA the right to profit
from their images without compensation long after the athletes
have left school.
The athletes claimed the NCAA, Electronic Arts and Collegiate
Licensing Company conspired to restrain trade by fixing their
compensation to zero dollars, in violation of federal antitrust
laws.
The basketball and football players served subpoenas to The Big
Ten Conference, The Big Ten Network, and Fox Broadcasting Company,
which are not defendants in the original complaint.
Big Ten and Fox objected to the subpoenas as overly broad, and the
athletes narrowed the scope of the documents they requested.
In an order on Feb. 27, Magistrate Judge Nathanael Cousins denied
the athletes' motion to compel productions of the documents.
Judge Cousins said the request was still too broad.
The Big Ten Network and Fox agreed to produce television broadcast
and licensing agreements that involve NCAA Division I football and
basketball, and documents about athletes' contract negotiations
that mention publicity rights.
Judge Cousins found that compromise to be reasonable, "given the
confidential nature of the agreements."
"The document requests . . . are not tailored to minimize the
potential prejudice that the nonparties could suffer by releasing
such information," Judge Cousins wrote.
Judge Cousins said the athletes must also pay sanctions to the
companies for the costs of the motion to compel documents, based
on the argument that negotiating with the companies would be
"fruitless."
"Despite the significant efforts made by the nonparties to
articulate with specificity the reasoning for their relevance,
privilege, and undue burden objections and to continue the
negotiations with respect to the scope of the document requests,
there is no evidence that antitrust plaintiffs considered
additional limitations to the breadth of the document requests
based on these objections and invitations to negotiate," Judge
Cousins wrote.
"Because the document requests are overly broad, each of the three
motions to compel brought by antitrust plaintiffs is DENIED. The
nonparties must produce documents only to the extent described
above. Additionally, because antitrust plaintiffs did not make
reasonable attempts to avoid imposing an undue burden on the
nonparties, sanctions against antitrust plaintiffs are warranted
under Rule 45. By March 14, 2012, the nonparties may file a
motion for sanctions in accordance with Civil Local Rule 7-8 that
includes detailed billing statements itemizing the attorneys' fees
and costs they incurred in connection with the motions to compel
resolved in this order. Antitrust plaintiffs may file an
opposition no more than seven days after the nonparties file a
motion for sanctions."
A copy of the Order Denying Motions to Compel Production of
Documents by Nonparties in In re NCAA Student-Athlete Name &
Likeness Licensing Litigation, Case No. 11-mc-80300 (N.D. Calif.),
is available at:
http://www.courthousenews.com/2012/02/28/NCAAOrder.pdf
NCL CORPORATION: Continues to Defend Wage Class Suits in Florida
----------------------------------------------------------------
NCL Corporation Ltd. continues to defend two lawsuits in Florida
arising from alleged inappropriate wage deductions, according to
the Company's February 22, 2012 Form 20-F filing with the U.S.
Securities and Exchange Commission for the year ended December 31,
2011.
In July 2009, a class action complaint was filed against NCL
(Bahamas) Ltd. in the United States District Court, Southern
District of Florida, on behalf of a purported class of crew
members alleging inappropriate deductions of their wages pursuant
to the Seaman's Wage Act and wrongful termination resulting in a
loss of retirement benefits. In December 2010, the Court denied
the plaintiffs' Motion for Class Certification. In February 2011,
the plaintiffs filed a Motion for Reconsideration as to the
Court's Order on Class Certification which was denied. The
individual plaintiffs' claims remain and, accordingly, the Company
is vigorously defending this action and is not able at this time
to estimate the impact of these proceedings.
In May 2011, a class action complaint was filed against NCL
(Bahamas) Ltd. in the United States District Court, Southern
District of Florida, on behalf of a purported class of crew
members alleging inappropriate deductions of their wages pursuant
to the Seaman's Wage Act and breach of contract. The Company is
vigorously defending this action and is not able at this time to
estimate the impact of these proceedings.
ON SEMICONDUCTOR: Appeal from Settlement Order Dismissed
--------------------------------------------------------
The appeal from a district court order which approved the
settlement of a consolidated class action lawsuit against On
Semiconductor Corp. had been dismissed, according to the Company's
February 22, 2012, 10-K filing with the U.S. Securities and
Exchange Commission for the fiscal year ended December 31, 2011.
During the period of July 5, 2001 through July 27, 2001, the
Company was named as a defendant in three shareholder class action
lawsuits that were filed in federal court in New York City against
it and certain of the Company's former officers, current and
former directors and the underwriters of the Company's initial
public offering. The lawsuits allege violations of the federal
securities laws and have been docketed in the U.S. District Court
for the Southern District of New York as: Abrams v. ON
Semiconductor Corp., et al., C.A. No 01-CV-6114; Breuer v. ON
Semiconductor Corp., et al., C.A. No. 01-CV-6287; and Cohen v. ON
Semiconductor Corp., et al., C.A. No. 01-CV-6942.
On April 19, 2002, the plaintiffs filed a single consolidated
amended complaint that supersedes the individual complaints
originally filed. The amended complaint alleges, among other
things, that the underwriters of the Company's initial public
offering improperly required their customers to pay the
underwriters excessive commissions and to agree to buy additional
shares of the Company's common stock in the aftermarket as
conditions of receiving shares in its initial public offering.
The amended complaint further alleges that these supposed
practices of the underwriters should have been disclosed in the
Company's initial public offering prospectus and registration
statement. The amended complaint alleges violations of both the
registration and antifraud provisions of the federal securities
laws and seeks unspecified damages.
The Company understands that various other plaintiffs have filed
substantially similar class action cases against approximately 300
other publicly-traded companies and their public offering
underwriters in New York City, which have all been transferred,
along with the case against the Company, to a single federal
district court judge for purposes of coordinated case management.
The Company believes that the claims against it are without merit
and has defended, and intends to continue to defend, the
litigation vigorously. The litigation process is inherently
uncertain, however, and the Company cannot guarantee that the
outcome of these claims will be favorable for the Company.
The parties advised the District Court on February 25, 2009 that
they had reached an agreement-in-principle to settle the
litigation in its entirety. A stipulation of settlement was filed
with the District Court on April 2, 2009. On June 9, 2009, the
District Court preliminarily approved the proposed global
settlement. Notice was provided to the class, and a settlement
fairness hearing, at which members of the class had an opportunity
to object to the proposed settlement, was held on September 10,
2009. On October 6, 2009, the District Court issued an order
granting final approval to the settlement. Ten appeals were filed
objecting to the definition of the settlement class and fairness
of the settlement. On January 10, 2012, the last remaining appeal
was dismissed with prejudice, as a result of which the settlement
became final by its terms. The Company has no financial liability
in connection with the settlement.
PAPA BEAR: Recalls 10,000 Children's Pajamas and Sleepwear
----------------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
Papa Bear Loungeabouts, LLC, of Los Angeles, California, announced
a voluntary recall of about 10,000 Children's pajamas and
sleepwear. Consumers should stop using recalled products
immediately unless otherwise instructed. It is illegal to resell
or attempt to resell a recalled consumer product.
The garments fail to meet federal flammability standards for
children's sleepwear, posing a risk of burn injury to children.
No incidents or injuries have been reported.
This recall involves all styles of pajama sets (tops and bottoms),
separate pajama pants and nightgowns sold in boys and girls sizes
0-6X and 7-14. A garment label with the name "Papa Bear
Loungeabouts" and a picture of a bear is sewn into the center back
neckline on the outside of the garments. A hanging label features
the same name and image. The sleepwear is 100% cotton poplin or
100% cotton flannel and the different styles come in a variety of
colors and novelty print designs, including: bling, cows, Scotty
dogs, hotrods, basketball, sports, vintage, rodeo, rock and roll,
ballerinas, popcorn and more. Pictures of the recalled products
are available at:
http://www.cpsc.gov/cpscpub/prerel/prhtml12/12122.html
The recalled products were manufactured in China and sold at
children's clothing and specialty retailers nationwide and online
from January 2004 to December 2011.
Consumers should stop using the recalled sleepwear immediately and
return the product to the retailer where the product was purchased
for a refund, exchange or store credit. For additional
information, please contact the retailer from whom you purchased
your recalled products. Participating in this recall are the
following retailers with their contact details:
(1) CCS Group d/b/a Pajamamania: (866) 472-5262, E-mail:
customerservice@pajamamania.com; includes Sleepyheads and
Pajamaheaven of Erlanger, Kentucky; Web sites:
http://www.pajamamania.com/,http://www.sleepyheads.com/;
(2) Cotton Tots, Inc. d/b/a Bright Beginnings and Bestdressed
Kids of Austin, Texas: (512) 453-0433, E-mail:
customerservice@bestdressedkids.com; Web site:
http://www.bestdressedkids.com/;
(3) Comfykid.com of San Jose, California: (877) 479-9040,
E-mail: orders@comfykid.com; Web site:
http://www.comfykid.com/;
(4) My Baby Pajamas, LLC of Scottsdale, Arizona:
(480) 330-6380, customerservice@mybabypajamas.com; Web
site: http://www.mybabypajamas.com/;
(5) Pajama Company of New Canaan, Connecticut: (877) 757-4386
info@thepajamacompany.com; Web site:
http://www.thepajamacompany.com/;and
(6) Zulily, Inc. of Seattle, Washington: (855) 812-0945
service@zulily.com; Web site: http://www.zulily.com/
RISING BEVERAGE: Sued Over False Advertising on Activate
--------------------------------------------------------
Ray Latif, writing for Bevnet, reports that a class-action lawsuit
filed in Los Angeles Superior Court on Feb. 24 accuses Rising
Beverage Co. -- the owner of Activate -- of dishonest and
misleading statements in its advertising about the freshness of
Activate's key innovation, its "in-the-cap" reservoir of dry
vitamins versus those pre-mixed in other beverages.
The new lawsuit follows news of a rash of California-based
consumer claims filed in California. Less than a week ago, BevNET
reported on new class-action lawsuits brought against Zico and
Xing Tea, and others have been filed against brands like Muscle
Milk. And that's just in the beverage world: a host of similar
civil suits are alleging breaches of several California consumer
protection laws related to false advertising and unfair
competition.
Asked about the lawsuit, Dan Holland, the CEO of Activate, stated
simply, "We think it has no base."
In advertising for its products, Activate states that "vitamins
deteriorate while sitting in water, so we keep ours hid in the
lid." And on its Web site, Activate states that, "According to
our research conducted in partnership with an independent
analytical laboratory, Vitamins A, B, and C lose their potency
sitting in water."
However, the lawsuit alleges that Activate has provided the
plaintiff with "no citations or documents . . . to substantiate or
support its advertising message." Additionally, the lawsuit
points to a 2006 study in The Journal of Pharmaceutical Sciences
that found certain types of vitamins -- including those contained
in Activate -- to be stable in water. Moreover, the Journal study
found that palmitate, the form of vitamin A used in Activate, "is
the most stable form of the vitamin in aqueous solution (water)."
The plaintiff claims that because Activate markets its vitamins as
being materially fresher than the vitamins in other products, the
company is able to charge a premium for its drinks, even though
consumers are not receiving the promised benefits of fresher
vitamins.
RITZ CARLTON: Faces Class Action Over Hotel Stay Packages
---------------------------------------------------------
Courthouse News Service reports that a class action claims The
Ritz Carlton Hotel Co. double bills for packages that are supposed
to include breakfast, tips and taxes, in Broward County Court.
A copy of the Complaint in McCue v. The Ritz-Carlton Hotel
Company, LLC, Case No. 12-04343 (Fla. Cir. Ct., Broward Cty.), is
available at:
http://www.courthousenews.com/2012/02/28/Ritz.pdf
The Plaintiff is represented by:
Edward H. Zebersky, Esq.
Lee Gill Cohen, Esq.
ZEBERSKY & PAYNE, LLP
110 S.E. 6th Street, Ste. 2150
Fort Lauderdale, FL 33301
Telephone: (954) 989-6333
E-mail: ezebersky@zpllp.com
SAMSUNG ELECTRONICS: Settles Class Action Over Defective TVs
------------------------------------------------------------
Damon Poeter, writing for PC Magazine, reports that Samsung
Electronics America (SEA) issued a notice on Feb. 23 that it has
agreed to offer free repairs to Oklahoma residents who purchased
certain LCD, Plasma, and DLP TVs from the company that have
malfunctioned due to capacitor issues.
A class-action suit was filed last Oct. 17 by Oklahoma residents
Ryan Russell and Philip Bourne on behalf of themselves and other
Oklahoma residents who had purchased defective televisions from
the company. SEA stated that it "denies the allegations in the
lawsuit, but has agreed to settle the lawsuit to avoid the costs
and uncertainty of continued litigation."
The original suit alleges that malfunctioning capacitors caused
certain Samsung-branded TVs manufactured between Jan. 1, 2006 and
Dec. 31, 2008 to "experience symptoms such as not turning on, a
significant delay in turning on, making a clicking sound, cycling
on and off, and other similar problems."
The terms of the settlement call on Samsung to conduct service
visits to claimants with televisions covered in the suit to
determine if they have a capacitor problem. The company has
agreed to replace faulty capacitors and in some cases, a
television's power board after determining if a claimant's TV is
malfunctioning due to problems with those components.
Samsung Electronics America is also prepared to reimburse owners
of affected TVs for past repairs and will pay those who no longer
possess them $300 if they can prove previous ownership.
SEA said in a statement that "[a]pproximately 1 percent of Samsung
televisions sold in the U.S. from 2006 to 2008 have experienced
some performance issues" caused by capacitor problems and that it
had "voluntarily provided free repairs for U.S. customers with
affected televisions" since confirming the problem in early 2010.
Samsung has had some other legal entanglements in the U.S. in
recent months.
Samsung and six other Asia-based companies agreed late last year
to pay out $553 million as part of an agreement to settle claims
in a multi-state lawsuit that they conspired over eight years to
fix prices for liquid crystal display (LCD) screens.
A few weeks earlier, class-action lawsuits were filed by
smartphone owners in California and Missouri that alleged
violations of federal wiretap laws by Samsung, HTC, and mobile
software developer Carrier IQ.
SITEL WORLDWIDE: Unit Continues to Defend Suits Over Phone Calls
----------------------------------------------------------------
A wholly owned subsidiary of Sitel Worldwide Corporation continues
to defend lawsuits asserting violations of the federal laws
arising from alleged acts of placing automated calls to customers'
cell phones, according to the Company's February 22, 2012 Form 10-
K filing with the U.S. Securities and Exchange Commission for the
year ended December 31, 2011.
In July 2010, the Company's wholly owned subsidiary, National
Action Financial Services, Inc. ("NAFS"), was served with a
purported class action lawsuit in United States District Court for
the Northern District of Illinois. The complaint alleges NAFS
placed automated calls to plaintiff's cell phone without his
consent, allegedly in violation of the federal Telephone Consumer
Protection Act ("TCPA"). Since that time, the parties have been
engaged in discovery. On September 6, 2011, as a result of
information obtained through the discovery process, NAFS filed a
motion to compel arbitration of the plaintiff's claims relying on
the terms and conditions of the customer agreement governing
plaintiff's credit card account. The customer agreement contains
an arbitration provision which NAFS asserts subjects plaintiff's
claims to binding arbitration. On September 13, 2011, the court
stayed all further proceedings except as related to the motion to
compel pending the court's decision on that motion. In the event
the motion is granted, plaintiff will be compelled to arbitrate
his claim individually and the class action litigation will be
dismissed. However, in the event the court denies NAFS' motion,
the litigation will proceed as a purported class action. NAFS
also made demand upon its insurance carrier for coverage under its
errors and omissions insurance policy which contains a
self-insured retention amount of $1,000. The insurance carrier
denied the existence of a duty to defend or indemnify NAFS for the
claims at issue relying on certain exclusions in the policy. On
August 18, 2011, the plaintiff in the case filed a declaratory
judgment action against NAFS' insurance carrier, along with NAFS
and the Company as necessary parties, seeking a declaration from
the court that the denial of coverage was wrongful and that NAFS'
carrier has a duty to indemnify and defend the claims. As of
December 31, 2011, a reserve has been recorded which the Company
believes is in accordance with the reasonable range of loss. No
reserve was recorded as of December 31, 2010, the Company said.
In April 2011, NAFS was served with a purported class action filed
in United States District Court for the Eastern District of
Michigan. The complaint alleges violations of the federal Fair
Debt Collection Practices Act ("FDCPA") and the TCPA for calls to
plaintiff's cell phone in an attempt to collect a debt not owed by
the plaintiff. The complaint also alleges pre-recorded message
calls to debtors on their cell phones by means of an automated
dialing device, without having received permission from the
recipients of the calls in violation of the TCPA. NAFS has filed
a motion to dismiss. Plaintiff filed a response and the court is
currently considering NAFS' motion. The Company said it is
currently unable to predict the probable outcome of this matter
and is not able to reasonably estimate the amount of loss, if any.
No reserve has been recorded as of December 31, 2011, the Company
said.
TIM HORTONS: Judge Junks Franchise Owners' Doughnut Class Action
----------------------------------------------------------------
Joseph Brean, writing for National Post, reports that Tim Hortons
has won a major legal battle against franchise owners, now that a
judge has tossed out a proposed C$2-billion class-action lawsuit
over the price of doughnuts.
Tim Hortons franchisees benefit from an iconic national brand, and
with such high profits from coffee sales, they should accept lower
margins on food, according to the decision by Justice George
Strathy of Ontario Superior Court.
"The fact of the matter is that under the Tim Hortons system, the
franchisees are given the license to sell Tim Hortons trademarked
coffee -- a brand that is about as iconic as there is in Canada,"
the judge wrote.
"What matters, at the end of the day, is whether the franchisee
makes sufficient profit overall to justify his or her investment
and to remain in the business. The suggestion by the plaintiffs
that [Tim Hortons] has an obligation to price every menu item so
that they can make a profit on that particular item is not
supported by the contract, by the law or by common sense."
At the heart of the case, which began in 2008, is what the judge
describes as the "Always Fresh Conversion," a shift from fresh
baking in each store to a system of industrial par baking and
flash freezing at a centralized plant in Brantford, Ont., followed
by reheating in specially designed ovens.
To say this shift was controversial is an understatement, like
saying Canadians are fond of Tim Hortons. The truth is they are
patriotically loyal to it, and the switch to frozen doughnuts and
muffins was seen as a major corporate risk, and it was the subject
of intensive consultation with franchisees.
Until 2002, baked goods were made in store by trained bakers,
using ingredients supplied by Tim Hortons, which gave each
franchise a signature fresh-baked smell, but could be inefficient,
inflexible and expensive.
In 2010, Tim Hortons sold its half of this industrial bakery to
Aryzta AG, the Swiss company that already owned the other half.
Co-founder Ron Joyce, who has since left the company, was
especially critical of the switch to frozen, and the ensuing legal
battle came to be seen as an almost tribal conflict between those
loyal to Mr. Joyce, and those loyal to his successor, Paul D.
House.
The fight was nasty and drawn out. Written materials were
"replete with pejorative language" and unsubstantiated accusations
of "misrepresentation" and "exploitation," the judge wrote, and
evidence presented by both sides was "largely irrelevant."
The lawsuit, intended as a class action on behalf of all
franchisees, was doomed to fail from the beginning because it is
not the court's role to rewrite valid contracts, Judge Strathy
wrote in his 140-page ruling.
The case was brought by Brule Foods, which runs two Tim Hortons in
Ontario, and is owned by Archibald Jollymore, a cousin of
Mr. Joyce and his former executive vice-president. The other
plaintiff is Fairview Donut, Inc., a profitable franchisee since
1988, and owned by Mr. Jollymore's wife, Anne Jollymore.
They alleged that the average price of a doughnut increased from 7
cents when made from scratch to 18 cents to 20 cents under "Always
Fresh," and that this has unfairly cut into their profits. They
claimed Tim Hortons makes "enormous profits" on the sale of the
"par baked" doughnuts at franchisees' expense, and that this
violates their implied guarantee that ingredients would be sold to
them at lower than market price.
They also claimed that the lunch menu of soups and sandwiches must
be sold at "break-even prices or at a loss," even though
franchisees pay a percentage of sales to Tim Hortons for rent,
royalties and advertising. They alleged this is in violation of
their franchise contracts, as well as the duty of good faith and
fair dealing. They also alleged Tim Hortons committed the
offences of "price maintenance and conspiracy under the
Competition Act," the ruling shows.
Counsel for the plaintiffs declined to comment on Feb. 27.
Tim Hortons' response was that it has a contractual right to set
the prices at which franchises purchase ingredients, and "overall,
the plaintiffs and all franchisees enjoy an exceptional rate of
return on their investments."
The company said the "Always Fresh" doughnut is not more expensive
on average, and denied the lunch items are sold at a loss. It
also noted that sandwiches and soups are a crucial part of keeping
competitive with other fast-food chains.
In siding with Tim Hortons and tossing out the lawsuit, the judge
observed that if "par baking" had not been introduced, the cost of
baking from scratch would have increased to something like 30
cents per doughnut today.
The Always Fresh Conversion was "a rational business decision made
by Tim Hortons for valid economic and strategic reasons," the
judge found.
"The plaintiffs' real complaint about the Always Fresh Conversion,
buried under boxes of financial statements, statistics,
affidavits, expert opinions and transcripts, and expressed with
eloquent and passionate advocacy by their counsel, is that they
don't get a bigger share of the doughnut profits. Their real
complaint about the Lunch Menu is exactly the same," judge wrote.
"There is one aspect of the Tim Hortons franchise that the
plaintiffs don't complain about -- coffee," Judge Strathy wrote.
"Coffee is what Tim Hortons has been about since the very first
day. It remains so today. Tim Hortons owns the coffee brand. It
owns the trademark. The franchisee acquires the right to use the
trademark. To sell the brand . . . A large cup of coffee sells,
at least in Toronto, for C$1.57. It is, not surprisingly,
extremely profitable. The ingredient cost is very low. The cost
of labor involved in making the pot and pouring a cup is also very
low."
The plaintiffs may still appeal the ruling.
TOOTSIE'S CABARET: Faces Class Action Over Spam Text Messages
-------------------------------------------------------------
Stephanie Rabiner, Esq. at FindLaw.com reports that Bret Lusskin
is lead plaintiff in a class action lawsuit filed against the
parent company of Tootsie's Cabaret, a strip club in Miami
Gardens, Fla. Mr. Lusskin, and perhaps hundreds of others,
received a constant stream of text messages from the strip joint
after entering a contest.
Now he wants $500 for each message received.
The class action suit claims Tootsie's Cabaret "surreptitiously
obtained" cell phone numbers from its patrons, explains NBC Miami.
The club held a contest for a Rolex, which was actually a ruse
designed to "lure people into providing their cell phone numbers,"
according to attorney Scott Owens.
Mr. Owens, the attorney in charge of the case, believes the strip
club text messages violate the Telephone Consumer Protection Act
(TCPA), which limits unsolicited marketing calls to homes and cell
numbers. It also governs the national Do-Not-Call list.
In this particular context, the TCPA prohibits sending pre-
recorded or auto-dialed calls to cell phones without first
obtaining consent from the number owner. A handful of courts,
including the United States Court of Appeals for the Ninth
Circuit, have interpreted "calls" to include text messages.
If Tootsie's Cabaret did not get express prior consent from
Mr. Lusskin and its other patrons, it arguably violated the law.
And if it loses the lawsuit, each strip club text message is worth
a $500 fine -- a lot of lap dances for people who are known to
frequent such establishments.
VENTAS INC: Awaits Approval of Settlement in NPH Acquisition Suit
-----------------------------------------------------------------
Ventas, Inc., is awaiting court approval of a settlement in a
consolidated purported class action filed in Maryland relating to
the Company's merger with Nationwide Health Properties, Inc.,
according to the Company's February 22, 2012 Form 10-K filing with
the U.S. Securities and Exchange Commission for the year ended
December 31, 2011.
In the weeks following the announcement of the Company's
acquisition of Nationwide Health Properties, Inc., on February 28,
2011, purported stockholders of NHP filed seven lawsuits against
NHP and its directors. Six of these lawsuits also named Ventas,
Inc. as a defendant and five named the Company's subsidiary,
Needles Acquisition LLC, as a defendant. The purported
stockholder plaintiffs commenced these actions in two
jurisdictions: the Superior Court of the State of California,
Orange County (the "California State Court"); and the Circuit
Court for Baltimore City, Maryland (the "Maryland State Court").
All of these actions were brought as putative class actions, and
two also purport to assert derivative claims on behalf of NHP.
All of these stockholder complaints allege that NHP's directors
breached certain alleged duties to NHP's stockholders by approving
the merger agreement with the Company, and certain complaints
allege that NHP aided and abetted those breaches. Those
complaints that name Ventas, Inc. and Needles Acquisition LLC
allege that the Company aided and abetted the purported breaches
of certain alleged duties by NHP's directors. All of the
complaints request an injunction of the merger. Certain of the
complaints also seek damages.
In the California State Court, the following actions were filed
purportedly on behalf of NHP stockholders: on February 28, 2011, a
putative class action entitled Palma v. Nationwide Health
Properties, Inc., et al.; on March 3, 2011, a putative class
action entitled Barker v. Nationwide Health Properties, Inc., et
al.; and on March 3, 2011, a putative class action entitled Davis
v. Nationwide Health Properties, Inc., et al., which was
subsequently amended on March 11, 2011 under the caption Davids v.
Nationwide Health Properties, Inc., et al. Each action names NHP
and members of the NHP board of directors as defendants. The
Barker and Davids actions also name Ventas, Inc. as a defendant,
and the Davids action names Needles Acquisition LLC as a
defendant. Each complaint alleges, among other things, that NHP's
directors breached certain alleged duties by approving the merger
agreement between the Company and NHP because the proposed
transaction purportedly fails to maximize stockholder value and
provides the directors personal benefits not shared by NHP
stockholders, and the Barker and Davids actions allege that the
Company aided and abetted those purported breaches. Along with
other relief, the complaints seek an injunction against the
closing of the proposed merger. On April 4, 2011, the defendants
demurred and moved to stay the Palma, Barker, and Davids actions
in favor of the parallel litigation in the Maryland State Court.
On April 27, 2011, all three actions were consolidated pursuant to
a Stipulation and Proposed Order on Consolidation of Related
Actions signed by the parties on March 22, 2011. On May 12, 2011,
the California State Court granted the defendants' motion to stay.
In the Maryland State Court, the following actions were filed
purportedly on behalf of NHP stockholders: on March 7, 2011, a
putative class action entitled Crowley v. Nationwide Health
Properties, Inc., et al.; on March 10, 2011, a putative class
action entitled Taylor v. Nationwide Health Properties, Inc., et.
al.; on March 17, 2011, a putative class action entitled Haughey
Family Trust v. Pasquale, et al.; and on March 31, 2011, a
putative class action entitled Rappoport v. Pasquale, et al. All
four actions name NHP, its directors, Ventas, Inc. and Needles
Acquisition LLC as defendants. All four actions allege, among
other things, that NHP's directors breached certain alleged duties
by approving the merger agreement between the Company and NHP
because the proposed transaction purportedly fails to maximize
stockholder value and provides certain directors personal benefits
not shared by NHP stockholders and that the Company aided and
abetted those purported breaches. In addition to asserting direct
claims on behalf of a putative class of NHP shareholders, the
Haughey and Rappoport actions purport to bring derivative claims
on behalf of NHP, asserting breaches of certain alleged duties by
NHP's directors in connection with their approval of the proposed
transaction. All four actions seek to enjoin the proposed merger,
and the Taylor action seeks damages.
On March 30, 2011, pursuant to stipulation of the parties, the
Maryland State Court entered an order consolidating the Crowley,
Taylor and Haughey actions. The Rappoport action was consolidated
with the other actions on April 15, 2011.
On April 1, 2011, pursuant to stipulation of the parties, the
Maryland State Court entered an order: (i) certifying a class of
NHP shareholders; and (ii) providing for the plaintiffs to file a
consolidated amended complaint. The plaintiffs filed a
consolidated amended complaint on April 19, 2011, which the
defendants moved to dismiss on April 29, 2011. Plaintiffs opposed
that motion on May 9, 2011. Plaintiffs moved for expedited
discovery on April 19, 2011, and the defendants simultaneously
opposed that motion and moved for a protective order staying
discovery on April 26, 2011. The Maryland State Court denied
plaintiffs' motion for expedited discovery and granted defendants'
motion for a protective order on May 3, 2011. On May 6, 2011,
plaintiffs moved for reconsideration of the Maryland State Court's
grant of the protective order. The Maryland State Court denied
the plaintiffs' motion for reconsideration on May 11, 2011. On
May 27, 2011, the Maryland State Court entered an order dismissing
the consolidated action with prejudice. Plaintiffs moved for
reconsideration of that order on June 6, 2011.
On June 9, 2011, the Company and NHP agreed on a settlement in
principle with the plaintiffs in the consolidated action pending
in Maryland State Court, which required the Company and NHP to
make certain supplemental disclosures to stockholders concerning
the merger. The Company and NHP made the supplemental disclosures
on June 10, 2011. The settlement is subject to appropriate
documentation by the parties and approval by the Maryland State
Court.
The Company believes each of these actions is without merit.
VENTAS INC: Continues to Defend Cogdell Acquisition Class Suits
---------------------------------------------------------------
Ventas, Inc., continues to defend itself from two purported class
action lawsuits arising from the December 2011 acquisition of
Cogdell Spencer Inc., according to the Company's February 22, 2012
Form 10-K filing with the U.S. Securities and Exchange Commission
for the year ended December 31, 2011.
In the weeks following the announcement of the Company's
acquisition of Cogdell Spencer Inc. on December 27, 2011,
purported stockholders of Cogdell filed seven lawsuits against
Cogdell and its directors. Each of these lawsuits also named
Ventas, Inc. as a defendant, and certain of the lawsuits also
named the Company's subsidiaries, TH Merger Corp, Inc. and TH
Merger Sub, LLC, as defendants. Plaintiffs commenced these
actions in two jurisdictions: the Superior Court of the State of
North Carolina, Mecklenburg County; and the Circuit Court for
Baltimore City, Maryland.
Each of these actions was brought as a putative class action and
alleges that Cogdell's directors breached their fiduciary duties
to Cogdell's stockholders by approving the merger agreement with
the Company. The complaints also allege that Ventas, Inc. and, in
some cases, Cogdell, TH Merger Corp, Inc. and TH Merger Sub, LLC
aided and abetted those purported breaches. All of the complaints
request an injunction of the merger, declaratory relief,
attorneys' fees and costs, and other unspecified monetary relief.
The Company believes that each of these actions is without merit,
and the plaintiffs' claims are being vigorously contested.
VIA RAIL: Law Firms Launch Class Action Over Train Derailment
-------------------------------------------------------------
Showwei Chu and Michael Talbot, writing for CityNews.ca, reports
that a C$10 million class-action lawsuit for people affected by
the Via Rail train derailment in Burlington was launched in court
on Feb. 28.
The Charney Practice Group of Toronto and Sutts Strosberg LLP of
Windsor, Ont., launched the suit on behalf of a Niagara woman.
"She was badly shaken up," said Ted Charney, Senior Partner
Falconer Charney LLP. "And a lot of people tumbled on top of her.
It's obviously a very traumatizing event. And she's just staying
at home trying to recover from it."
Twenty other passengers have since signed on. If you were on the
train, you can register to be part of the class action here.
Sutts Strosberg successfully handled a suit in the 1999 Via
derailment in Thamesville, in which two crew members died and 77
people were injured.
Three engineers died and 46 others were injured in the accident
that occurred on Feb. 26.
The 75 passengers on Via Train 92 are encouraged to contact the
firms because they "may be entitled to compensation for physical
and emotional injuries, loss of income, medical expenses, and/or
out of pocket expenses," the firm said on its Web site.
No further details were immediately available.
Meanwhile, crews have cleared the tracks in Burlington where the
Toronto-bound VIA train derailed.
Rail cars were put back on their wheels and hauled away from the
crash site near King and Plains roads for further examination.
The cause of the crash hasn't been determined. Investigators from
the Transportation Safety Board of Canada (TSB) recovered the
orange data recorder on Feb. 27, which was damaged in the
derailment.
They say the accident occurred when the train was switching
tracks, the equivalent of changing lanes, but that routine
maneuver may not be the cause of the accident.
The information on the event recorder will be able to tell them
exactly what happened, including what the engineers were doing,
the passenger train's speed, the brake pressure and whether the
bell whistle was applied, lead TSB investigator Tom Griffith said
Monday.
"The only thing it does not tell us is the voice," he said.
"There is no voice recording on the locomotive."
The derailment happened around 3:30 p.m. near Highway 403 and the
QEW, where all six cars of VIA Train 92 jumped the tracks. The
engineers were in the locomotive cab, which turned on its side and
struck a building, killing all three men.
The men were identified on Feb. 27 as veterans Peter Snarr, 52,
and Ken Simmonds, 56, both of Toronto, and Patrick Robinson, 40,
of Cornwall, Ont., who was being trained at the time.
The accident happened about 100 meters away from the site of
another derailment four years ago when a freight train went off
the rails. A faulty wheel was blamed in that incident.
Three people were airlifted to hospital with serious injuries, and
the other injured people were taken to local hospitals.
Halton regional police say about a dozen people listed on the
passenger manifest, which had 75 people, left on their own accord
Sunday afternoon before authorities arrived, but they have since
located and spoken to them.
The Feb. 26 derailment is still affecting GO Transit commuters,
who will need to alter their travel plans. Eastbound trains that
originate in Hamilton will depart the Hamilton GO Centre, and will
serve the Aldershot GO Station. GO buses will service riders from
Aldershot to Burlington.
WACHOVIA BANK: Sued Over Alleged Mortgage Kickback Scheme
---------------------------------------------------------
Courthouse News Service reports that a federal class action claims
Wachovia Bank had kickback arrangements with co-defendant private
mortgage insurers.
A copy of the Complaint in Ranjha v. Wachovia Bank, N.A., et al.,
Case No. 12-cv-00257 (E.D. Calif.), is available at:
http://www.courthousenews.com/2012/02/28/MortKick.pdf
The Plaintiff is represented by:
Ramzi Abadou, Esq.
KESSLER TOPAZ MELTZER & CHECK, LLP
580 California Street, Suite 1750
San Francisco, CA 94104
Telephone: (415) 400-3000
E-mail: rabadou@ktmc.com
- and -
Edward W. Ciolko, Esq.
Terence S. Ziegler, Esq.
Donna Siegel Moffa, Esq.
Amanda R. Trask, Esq.
Michelle A. Coccagna, Esq.
KESSLER TOPAZ MELTZER & CHECK, LLP
280 King of Prussia Road
Radnor, PA 19087
Telephone: (610) 667-7706
E-mail: eciolko@ktmc.com
tziegler@ktmc.com
dmoffa@ktmc.com
atrask@ktmc.com
mcoccagna@ktmc.com
- and -
Alan R. Plutzik, Esq.
BRAMSON PLUTZIK MAHLER & BIRKHAEUSER LLP
2125 Oak Grove Boulevard, Ste. 120
Walnut Creek, CA 94598
Telephone: (925) 945-0200
E-mail: aplutzik@bramsonplutzik.com
- and -
Andrew L. Berke, Esq.
BERKE, BERKE & BERKE
420 Frazier Avenue
Chattanooga, TN 37402
Telephone: (423) 266-5171
WELLPOINT INC: Class Settlement Payment Completed in 2Q of 2011
---------------------------------------------------------------
WellPoint Inc. completed payment of a class action settlement in
the second quarter of 2011, according to the Company's February
22, 2012, 10-K filing with the U.S. Securities and Exchange
Commission for the fiscal year ended December 31, 2011.
The Company is defending a number of individual lawsuits,
including one filed by the Los Angeles City Attorney, and one
purported class action alleging the wrongful rescission of
individual insurance policies. The suits name WellPoint as well
as Blue Cross of California, or BCC, and BC Life & Health
Insurance Company, or BCL&H (which name changed to Anthem Blue
Cross Life and Health Insurance Company in July 2007), both
WellPoint subsidiaries. The lawsuits generally allege breach of
contract, bad faith and unfair business practices in a purported
practice of rescinding new individual members following the
submission of large claims. The parties agreed to mediate most of
these lawsuits and the mediation resulted in the resolution of
some of these lawsuits. Final approval of the class action
settlement was granted on July 13, 2010, and no appeals were
filed. Payments pursuant to the terms of the settlement commenced
in the first quarter of 2011 and were completed during the second
quarter of 2011. The payments did not have a material impact on
the Company's consolidated financial position or results of
operations.
The Los Angeles City Attorney filed an amended complaint in
October 2010, adding claims of misrepresentation arising from
several public statements made by the Company during 2010. The
Los Angeles City Attorney is requesting two thousand five hundred
dollars ($2,500) per alleged violation of the California Business
and Professions Code. The Company intends to vigorously defend
this suit; however, the ultimate outcome cannot be presently
determined.
WELLPOINT INC: Class Actions Over AICI Demutualization Pending
--------------------------------------------------------------
WellPoint Inc. continues to defend itself from class action
lawsuits filed as a result of the demutualization of Anthem
Insurance Companies Inc., according to the Company's February 22,
2012, 10-K filing with the U.S. Securities and Exchange Commission
for the fiscal year ended December 31, 2011.
The Company is currently defending several certified or putative
class actions filed as a result of the 2001 demutualization of
Anthem Insurance Companies, Inc., or AICI, and the initial public
offering of common stock, or IPO, for its holding company, Anthem,
Inc. (n/k/a WellPoint, Inc.). The suits name AICI as well as
Anthem, Inc., or Anthem, n/k/a WellPoint, Inc. The suits are
captioned as Ronald Gold, et al. v. Anthem, Inc. et al.; Mary E.
Ormond, et al. v. Anthem, Inc., et al.; Jeffrey D. Jorling v.
Anthem, Inc., et al; and Ronald E. Mell, Sr., et al. v. Anthem,
Inc., et al. AICI's 2001 Plan of Conversion, or the Plan, provided
for the conversion of AICI from a mutual insurance company into a
stock insurance company pursuant to Indiana law.
Under the Plan, AICI distributed the fair value of the company at
the time of conversion to its Eligible Statutory Members, or ESMs,
in the form of cash or Anthem common stock in exchange for their
membership interests in the mutual company. The lawsuits
generally allege that AICI distributed value to the wrong ESMs or
distributed insufficient value to the ESMs. In Gold, cross
motions for summary judgment were granted in part and denied in
part on July 26, 2006 with regard to the issue of sovereign
immunity asserted by co-defendant, the State of Connecticut, or
the State. The court also denied the Company's motion for summary
judgment as to plaintiffs' claims on January 10, 2005. The State
appealed the denial of its motion to the Connecticut Supreme
Court. The Company filed a cross-appeal on the sovereign immunity
issue. On May 11, 2010, the Court reversed the judgment of the
trial court denying the State's motion to dismiss the plaintiff's
claims under sovereign immunity and dismissed the Company's cross-
appeal. The case was remanded to the trial court for further
proceedings. Plaintiffs' motion for class certification was
granted on December 15, 2011.
In the Ormond suit, the Company's motion to dismiss was granted in
part and denied in part on March 31, 2008. The Court dismissed
the claims for violation of federal and state securities laws, for
violation of the Indiana Demutualization Law, for unjust
enrichment, and for negligent misrepresentation with respect to
ESMs residing in Indiana. On September 29, 2009, a class was
certified with respect to some but not all claims asserted in the
plaintiffs' Fourth Amended Complaint. The class consists of all
ESMs residing in Ohio, Indiana, Kentucky or Connecticut who
received cash compensation in connection with the demutualization.
The class does not include employers located in Ohio and
Connecticut that received cash distributions pursuant to the Plan.
On July 1, 2011, the Court issued an Order granting in part and
denying in part the Company's motion for summary judgment. The
Court held that the Company was entitled to judgment on all of
plaintiffs' claims except those tort claims in connection with the
pricing and sizing of the Anthem, Inc. IPO. Anthem filed a Motion
to Certify this Order for interlocutory review to the United
States Court of Appeals for the Seventh Circuit. The District
Court granted the Company's motion on September 2, 2011. The
Company submitted its Petition for Permission to Appeal with the
Seventh Circuit. However, the petition was denied by the Appeals
Court on October 13, 2011. The Ormond suit is set for trial on
June 18, 2012. In court filings, the plaintiffs in Ormond have
alleged that the plaintiff class is entitled to compensatory
damages ranging from approximately $265.0 to $545.0 on the
remaining claims, plus prejudgment interest at the maximum rate
allowed by law running from the demutualization in 2001,
postjudgment interest at the maximum rate allowed by law, punitive
damages in amounts not less than $500.0, and their costs and
expenses in the action.
On December 23, 2010, plaintiff's motion for class certification
was denied in the Jorling suit. Plaintiff renewed his motion for
class certification on May 1, 2011 and requested that a new named
plaintiff be joined in the lawsuit. On December 23, 2011, the
Company's motion for summary judgment was granted, judgment was
entered in the Company's favor, and the Jorling case was dismissed
with prejudice. Plaintiff's motion for partial summary judgment
was denied, and plaintiff's renewed motion for class certification
and motion to add a new named plaintiff were denied as moot.
Plaintiff did not file an appeal from the summary judgment order
entered in the Company's favor.
On November 4, 2009 a class was certified in the Mell suit. That
class consists of persons who were continuously enrolled in the
health benefit plan sponsored by the City of Cincinnati between
June 18, 2001 and November 2, 2001. On March 3, 2010, the Court
issued an order granting the Company's motion for summary
judgment. As a result, the Mell suit has been dismissed. The
plaintiffs have filed an appeal with the United States Court of
Appeals for the Sixth Circuit Court. Argument on the appeal was
held on January 20, 2012. The Company intends to vigorously
defend these suits; however, its ultimate outcome cannot be
presently determined.
WELLPOINT INC: Appeal from ADA Suit Dismissal Order Pending
-----------------------------------------------------------
An appeal from a court order dismissing American Dental
Association's putative class action lawsuit against WellPoint Inc.
is pending, according to the Company's February 22, 2012, 10-K
filing with the U.S. Securities and Exchange Commission for the
fiscal year ended December 31, 2011.
The Company is currently a defendant in a putative class action
relating to out-of-network, or OON, reimbursement of dental claims
called American Dental Association v. WellPoint Health Networks,
Inc. and Blue Cross of California. The lawsuit was filed in March
2002 by the American Dental Association, and three dentists who
are suing on behalf of themselves and are seeking to sue on behalf
of a nationwide class of all non-participating dental providers
who were paid less than their actual charges for dental services
provided to members of some of the Company's affiliates' and
subsidiaries' dental plans. The dentists sue as purported
assignees of their patients' rights to benefits under the
Company's dental plans.
The complaint alleges that the Company breached its contractual
obligations in violation of ERISA by paying usual, customary and
reasonable, or UCR, rates, rather than the dentists' actual
charges, allegedly relying on undisclosed, non-existent or flawed
UCR data. The plaintiffs claim, among other things, that the data
failed to account for differences in geography, provider
specialty, outlier (high) charges, and complexity of procedure.
The complaint further alleges that the Company was aware that the
data was inappropriate to set UCR rates and that the Company
routinely paid OON dentists less than their actual charges
representing that its OON payments were properly determined usual,
customary and reasonable rates. The suit was pending in the
United States District Court for the Southern District of Florida.
On December 23, 2011, the District Court granted the Company's
motion for summary judgment and dismissed the case. The
plaintiffs filed a notice of appeal with the United States Court
of Appeals for the Eleventh Circuit, which is pending. The
Company intends to vigorously defend this suit; however, its
ultimate outcome cannot be presently determined.
WELLPOINT INC: Consolidated MDL in California Still Pending
-----------------------------------------------------------
WellPoint Inc. continues to defend itself from a consolidated
multi-district lawsuit filed by the American Medical Association
and several others in California, according to the Company's
February 22, 2012, 10-K filing with the U.S. Securities and
Exchange Commission for the fiscal year ended December 31, 2011.
The Company is currently a defendant in eleven putative class
actions relating to OON reimbursement that were consolidated into
a single multi-district lawsuit called In re WellPoint, Inc. Out-
of-Network "UCR" Rates Litigation that is pending in the United
States District Court for the Central District of California. The
lawsuits were filed in 2009. The plaintiffs include current and
former members on behalf of a putative class of members who
received OON services for which the defendants paid less than
billed charges, the American Medical Association, four state
medical associations, OON physicians, chiropractors, clinical
psychologists, podiatrists, psychotherapists, the American
Podiatric Association, California Chiropractic Association and the
California Psychological Association on behalf of a putative class
of all physicians and all non-physician health care providers, and
an OON surgical center.
In the consolidated complaint, the plaintiffs allege that the
defendants violated the Racketeer Influenced and Corrupt
Organizations Act, or RICO, the Sherman Antitrust Act, ERISA,
federal regulations, and state law by relying on databases
provided by Ingenix in determining OON reimbursement. A
consolidated amended complaint was filed to add allegations in the
lawsuit that OON reimbursement was calculated improperly by
methodologies other than the Ingenix databases. The Company filed
a motion to dismiss the amended consolidated complaint. The
motion was granted in part and denied in part. The court gave the
plaintiffs permission to replead many of those claims that were
dismissed. The plaintiffs filed a third amended consolidated
complaint repleading some of the claims that had been dismissed
without prejudice and adding additional statements in an attempt
to bolster other claims. The Company filed a motion to dismiss
the third amended consolidated complaint, which is pending. The
OON surgical center voluntarily dismissed their claims. Fact
discovery is complete. At the end of 2009, the Company filed a
motion to enjoin the claims brought by the medical doctors and
doctors of osteopathy and certain medical associations based on
prior litigation releases, which was granted in 2011, and the
court ordered the plaintiffs to dismiss their claims that are
barred by the release. The physician and medical association
plaintiffs filed an emergency motion to stay the preliminary
injunction pending appeal, for the right to pursue an
interlocutory appeal, and for an expedited appeal, all of which
were denied. The plaintiffs also filed a petition for declaratory
judgment asking the Court to find that these claims are not barred
by the releases from the prior litigation. The Company filed a
motion to dismiss the declaratory judgment action, which was
granted. The plaintiffs filed a notice of appeal from the
dismissal of the declaratory judgment action with the United
States Court of Appeals for the Eleventh Circuit. The appeal is
pending. The enjoined physicians have not yet dismissed their
claims. The Company intends to vigorously defend this suit;
however, its ultimate outcome cannot be presently determined.
WEYERHAEUSER COMPANY: Still Faces Suit Over ERISA Violations
---------------------------------------------------------------
Weyerhaeuser Company continues to defend itself from a lawsuit
brought against the Company over alleged violations of the
Employee Retirement Security Act, according to the Company's
February 22, 2012, 10-K filing with the U.S. Securities and
Exchange Commission for the fiscal year ended December 31, 2011.
On April 25, 2011, a complaint was filed in the United States
District Court for the Western District of Washington on behalf of
a person alleged to be a participant in the Company's U.S.
Retirement Plan for salaried employees. The complaint alleges
violations of the Employee Retirement Security Act (ERISA) with
respect to the management of the plan's assets and seeks
certification as a class action. The Company believes that its
pension plans have been consistently managed in full compliance
with established fiduciary standards and is vigorously contesting
the claim. The Company is seeking to have the case dismissed.
WHIRLPOOL CORP: Still Faces Class Suits in U.S., Canadian Courts
----------------------------------------------------------------
Whirlpool Corp. continues to defend itself from class action
lawsuits filed in U.S. and Canadian courts over its products,
according to the Company's February 22, 2012, 10-K filing with the
U.S. Securities and Exchange Commission for the fiscal year ended
December 31, 2011.
The Company is currently defending against numerous class action
lawsuits in various jurisdictions in the United States and Canada
relating to certain of its front load washing machines. The
complaints in these lawsuits generally allege violations of state
consumer fraud acts, unjust enrichment, and breach of warranty.
The complaints generally seek unspecified compensatory,
consequential and punitive damages. The Company believes these
suits are without merit and intends to vigorously defend them.
At this point, the Company cannot reasonably estimate a possible
range of loss, if any.
In addition, the Company is currently defending a number of other
class action suits in federal and state courts related to the
manufacturing and sale of its products and alleging claims which
include breach of contract, breach of warranty, product defect,
fraud, violation of federal and state consumer protection acts and
negligence. It is also involved in various other legal actions
arising in the normal course of business. The Company disputes
the merits of these suits and actions, and intends to vigorously
defend them.
WINDSTREAM CORPORATION: Units Continue to Defend Ky. Class Suit
---------------------------------------------------------------
Certain subsidiaries of Windstream Corporation continue to defend
themselves from a class action lawsuit pending in a Kentucky
federal court, according to the Company's February 22, 2012 Form
10-K filing with the U.S. Securities and Exchange Commission for
the quarter ended December 31, 2011.
On June 22, 2009, a putative class action lawsuit was filed in
Kentucky federal district court against certain of the Company's
subsidiaries on behalf of current and former customers in
Kentucky. The complaint alleged that the Company overcharged
customers because it collected a gross receipts surcharge ("GRS")
in violation of state and federal statutes and tariffs and common
law. The federal court referred the state tariff issues to the
Kentucky Public Service Commission. The federal court recently
ruled that the GRS was a rate that should have been in the
Company's federal tariffs prior to its collection from customers
and issued an order regarding class certification that, according
to the court, was not final. The Company plans to continue to
vigorously defend the court and administrative proceedings. Based
on a comprehensive analysis of the activity occurring during the
third quarter of 2011, the Company accrued an amount that is not
material representing the amount of loss that is currently
estimable and probable related to this matter. Ultimate
resolution, the timing of which is currently unknown, could result
in a loss in a range of $0 to $8.0 million in excess of the amount
accrued, the Company said.
WORLD SAVINGS: Sued Over Property in San Francisco, California
--------------------------------------------------------------
Catalina Cargado and Carolina Cargado, individuals, on behalf of
themselves and all others similarly situated v. World Savings
Bank, FSB, as the Original Lender; Golden West Savings Association
Service Co., as the Original Trustee; Chicago Title Company Title
Company; Countrywide Home Loans Servicing LP, as the PSA Master
Servicer; Countrywide Home Loans PSA Sponsor and Seller; CWALT,
Inc., as PSA Depositor; The Bank of New York, as PSA Trustee; The
Bank of New York PSA Custodian; Alternative Loan Trust 2007-18CB,
as the PSA Trust Issuing Entity; NDEX West, LLC, as the
Foreclosing Trustee; and Does 1 through 10, Inclusive, Case No.
3:12-cv-00965 (N.D. Calif., February 27, 2012) accuses the
Defendants of perpetrating illegal practices and unlawful conduct.
The Plaintiffs dispute the title and ownership of a real property
located at 555 44th Avenue, in San Francisco, California, in that
the originating mortgage lender and others alleged to have
ownership, have unlawfully sold, assigned and transferred their
ownership and security interest in a Promissory Note and Deed of
trust related to the Property, and thus, do not have lawful
ownership or a security interest in the Plaintiffs' home. The
Plaintiffs allege that the Defendants, and each of them, cannot
show proper receipt, possession, transfer, negotiations,
assignment and ownership of the borrower's original Promissory
Note and Deed of Trust, resulting in imperfect security interests
and claims with respect to the Property.
The Plaintiffs are residents of San Francisco, California. They
assert that they own the Property.
World Savings Bank is the originator of a loan. Countrywide is
the present purported Master Servicer of the Property's mortgage.
CWALT is the present purported Securitization Depositor of the
mortgage. Bank of New York is the present purported PSA Trustee
and Custodian of the mortgage. Alternative Loan Trust is the
present purported PSA Issuing Trust of the mortgage. NDEX is the
purported foreclosing trustee of the mortgage. The Plaintiffs
contend that these Defendants are purported participants in the
imperfect securitization of the Note and Deed of Trust. The
Plaintiffs do not know the true names and capacities of the Doe
Defendants.
The Plaintiffs are not represented by any law firm.
Asbestos Litigation
ASBESTOS UPDATE: Turnkey Waste Management Oblivious of Carcinogens
------------------------------------------------------------------
Ben Leubsdorf of the Concord Monitor reports that a Concord
construction firm was fined $18,000 in February for improper
disposal of asbestos removed from two city homes in 2005 and 2006.
Summer and Winter Construction LLC and owner Walter Jensen
violated state rules by removing asbestos from two Concord homes
and disposing the carcinogenic material at a Rochester landfill
without telling the facility that the material contained asbestos,
Merrimack County Superior Court Judge Richard McNamara wrote in a
Feb. 9 order.
McNamara wrote that as a result, "the asbestos had the potential
for harm to the general public."
The state attorney general's office announced the ruling and fine
on Feb. 22 in a news release. Messages seeking comment were left
for Jensen and his attorney, Charlie Russell.
Jensen testified under oath at a deposition that he told officials
at the Turnkey Waste Management landfill that the material
contained asbestos, but a landfill engineer testified at a bench
trial last fall that there were no records indicating Jensen told
them about the asbestos, McNamara wrote.
"If waste containing asbestos was accepted by Turnkey, it was
treated separately because of the potential for public health
concerns," McNamara wrote. "If asbestos was brought in without
Turnkey being told the waste contained asbestos, then the asbestos
would be treated like ordinary trash which could cause risk not
only to the public, but to employees."
McNamara wrote that "Jensen's conduct was, in addition to
dishonest, potentially injurious to public health," and imposed a
fine of $18,000.
State law allows a fine of up to $25,000 per offense. In imposing
the lesser fine, McNamara noted Summer and Winter Construction is
"a small company" and received a total of $1,800 for the two jobs.
He also wrote that there's no way to determine how much asbestos
was removed.
"The statute provides for significantly higher penalties, and in a
case like this you'd normally like to see that," said Senior
Assistant Attorney General Allen Brooks. "In this case, it sounds
like the judge was concerned about the viability of the business
if he fined much more than that."
The attorney general's office sent out an alert last summer asking
property owners to contact them if they'd hired Jensen to remove
asbestos. Brooks said no additional property owners came forward
as a result of that appeal.
ASBESTOS UPDATE: Mesothelioma Victims Guidance to Financial Rights
------------------------------------------------------------------
The asbestos law firm of Clapper, Patti, Schweizer and Mason just
added information to their Web site to help anyone diagnosed with
mesothelioma or their family members understand the financial and
legal rights an asbestos victim has. Mesothelioma is caused by
exposure to asbestos and therefore anyone diagnosed with this
disease has a right to compensation from the companies responsible
for the products that caused injury.
A diagnosis of mesothelioma comes with high costs to the victim --
loss of wages (if not retired), payments for doctor's bills and
treatments, and the many unexpected hidden expenses, such as
transportation, medicines, and home care -- that add up quickly.
Financial assistance is available to those diagnosed with
mesothelioma or to family members who have lost someone to
mesothelioma. However, there are statutes of limitations, so
seeking financial and legal advice as soon as possible after
diagnosis is essential.
As the statute of limitations vary from state to state, CPSM has
added state-specific information under the locations section of
their Web site to make it easier for victims to know what times
apply to their case. Statute of limitations can be very complex
and confusing though, so it is recommended to consult with a
mesothelioma attorney who specializes in asbestos law to be clear
on what applies in each particular case.
If seeking to file a lawsuit or claim within the statute of
limitations, an experienced mesothelioma attorney can help explain
how to get financial compensation to pay for medical bills, lost
wages, home care, alternative treatments, treatments not covered
by insurance, travel and transportation costs, etc. No legal fees
are collected until the case is settled in the client's favor, so
those seeking legal help do not have to worry about coming up with
a retainer fee or upfront money.
Financial compensation can come from asbestos bankruptcy trust
claims and/or mesothelioma lawsuits and settlements. Veterans
diagnosed with mesothelioma, in addition to filing a VA claim, can
also file a lawsuit or asbestos bankruptcy claim. CPSM are
experts in helping asbestos victims to get the compensation they
deserve in the least amount of time possible.
With successful verdicts and settlements, those injured by
asbestos can be awarded both compensatory and punitive damages.
Compensatory damages cover lost wages, medical costs, counseling,
treatment, and other forms of economic loss due to a mesothelioma
diagnosis or related death. Punitive damages can be quite
significant depending on the how much the jury decides to punish
the parties responsible for the asbestos illness.
About CPSM
Clapper Patti Schweizer & Mason has been exclusively and
successfully representing clients in mesothelioma lawsuits for
over 30 years. CPSM has consistently won and negotiated multi-
million dollar verdicts and settlements. CPSM's mesothelioma
lawyers travel to homes to make the legal process as easy as
possible. CPSM welcomes clients' phone calls and attorneys and
staff are available for support and to answer legal and financial
questions. Contact CPSM today at 1-800-440-4262.
ASBESTOS UPDATE: Telemovie Based on James Hardie Story On the Mill
------------------------------------------------------------------
Fiona Byrne of the Herald Sun reports that Logie winner Don Hany
will lead a star cast in a new ABC telemovie telling of the
harrowing James Hardie asbestos saga.
Hany will be joined by Anthony Hayes and Ewen Leslie in the two-
part mini-series, Devil's Dust, which tells the story of Bernie
Banton, the James Hardie worker who gave a public face to the
battle for compensation for asbestos victims.
Hayes, known for roles in The Slap and Look Both Ways, will play
Banton.
Leslie will play investigative journalist Matt Peacock who wrote a
book about Banton's battle, while Hany, who earned great acclaim
for his roles on East West 101 and Offspring, has been cast as a
spin doctor. Filming will get underway in Sydney on March 19.
"It is a very important story to tell," Hayes said. "It is
something that shocked me when I read the script. I knew parts of
it, but not the full extent. By 2030 there will be more deaths in
Australia from asbestos than from WW1.
"It is horrific, it is absolutely horrific."
Hayes said Banton, who died in November 2007 aged 61 after a long
battle with the asbestos cancer mesothelioma, was an inspiring
figure.
"A lot of people fight for lots of causes, but to be directly
affected by the very cause that you are fighting for and to fight
for other people until the day you die is pretty extraordinary,"
he said.
"You know you are running out of time so you have to push harder,
despite the fact you can barely get out of bed, you can barely
breathe. It takes quite an exceptional person to do that."
Devil's Dust will be produced by FremantleMedia Australia, and is
based on Peacock's book Killer Company.
Encore Magazine Online reports that ABC TV Head of Fiction, Carole
Sklan said: "This is a powerful, inspiring drama which has
attracted an outstanding cast and creative team. ABC TV is proud
to present the human story at the heart of this on-going national
tragedy."
Encore also reports FremantleMedia Australia and Asia Pacific CEO,
Ian Hogg, said: "Devil's Dust is a powerful story of greed,
subterfuge and perseverance. It's a story that will resonate ever
so strongly with all Australians. Our Creative Director, Jason
Stephens / Bravado has been instrumental in bringing the project
to the small screen."
ASBESTOS UPDATE: Contractor Fined $18,000 for Illegal Disposal
--------------------------------------------------------------
The Associated Press reports that a New Hampshire contractor is
being fined $18,000 for illegally removing and disposing of
asbestos.
A judge has ruled that William Jensen -- owner of Concord-based
Summer and Winter Construction -- illegally dumped asbestos he
removed from two jobs that netted him $1,800 in pay.
Merrimack Superior Court Judge Robert McNamara said he was issuing
a penalty 10 times more than what Jensen made off the jobs because
he had been the subject of two prior enforcement actions. The
judge also says Jensen lied when he said he told a waste disposal
company about the asbestos.
Jensen did the work in 2005 and 2006. He was tried in October and
November. McNamara's issued a ruling on Feb. 9.
Jensen and his lawyer did not immediately return calls seeking
comment.
ASBESTOS UPDATE: Crown Holdings' Campaign Wins Support In Idaho
---------------------------------------------------------------
The Associated Press reports that a bill that would limit national
bottle-top maker's liability for asbestos-related health claims in
Idaho has won support in the Idaho House.
For years, Pennsylvania-based Crown Holdings has sought protection
at the state level from claims filed by lung disease patients.
Crown's ill-fated purchase of an asbestos-tainted company in 1963
has resulted in about $700 million in payouts, with 50,000 claims
still pending.
The House approved the bill 47-22 on Feb. 22.
The legislation would limit the liability of companies that
acquire other companies with assets tainted by asbestos.
If approved, the measure would nullify future Idaho payouts by
Crown. Ten claims are pending in the state.
Rep. Clifford Bayer of Boise says the bill is fair and appeals
Idaho's pro-business philosophy.
Crown has won similar protections in 14 other states.
ASBESTOS UPDATE: New Cases of Mesothelioma Stirs Namibia
--------------------------------------------------------
Edson Haufiku of Informante reports that contrary to earlier
beliefs that there exists no real threat of asbestos-induced
cancer in Namibia, Informante came across a government building
that is highly contaminated with asbestos. The cardboardbox-like
house is situated right next to the nurses training centre in
Windhoek Khomasdal.
Paradoxically, the building in question belongs to the Ministry of
Health used to house 15 employees of its social work department.
The contaminated structure is believed to be as old as the
Katutura state hospital and was earlier used -- even more
paradoxically -- as a Tuberculosis (TB) ward.
The occupants complained of breathlessness, dizziness and sore
eyes while at work, with the symptoms mysteriously disappearing
once they left the building. Although the Khomas health
directorate had communicated the immediate need to evacuate the
cardboard-like structure already in 2010, the employees could only
vacate the contaminated house about three weeks ago due to a lack
of alternative office space. Some worked for over ten years in
the building.
Staff is now cramped into smaller offices a few meters from their
former headquarters and one would think they are safe now. But
not quite so: the social workers have to regularly enter the
asbestos house on a daily basis to collect patient's files which
are still stored there. Besides staff, patients have for years
been sitting in the building waiting on their appointments and
inhaling dangerous asbestos fibers.
Of the 15 staff members, Informante can confirm that former intern
Inotila Mwafongwe and another social worker (still in the
employment of the ministry) suffers from asbestos-induced
diseases. Mwafongwe could not even complete her assignment due to
health issues related to the hazards at her work place and has
meanwhile emigrated to Europe. "Before we moved to the new
building, I used to experience symptoms of sleepiness and sore
eyes whenever I was at work. Without being specific, my doctor
told me that my health is deteriorating because of my working
environment," says another social worker known to Informante.
According to cancer expert Dr. Annel Zietsmann, the other 13
social workers are not at all safe from the risks emanating from
the asbestos building and they might still fall sick and develop
cancer at a later stage. Asked whether the possibility exists
that one can be exposed to asbestos for long periods without
getting cancer, she says: "It is possible but depends on the
individual."
These revelations of new cases in asbestos-related illnesses in
Namibia not only add to those of the three patients diagnosed with
the deadly asbestos-induced Mesothelioma during 2011 but also
rekindle this newspaper's concerns with regard to the country's
freshwater supply network made from asbestos pipes, potentially
exposing more than a quarter of the country's population to
asbestos contamination (Informante reported).
Mesothelioma is a non-curable cancer caused by exposure to
asbestos, which can take up to 40 years to develop.
Breathlessness is one of the major symptoms of Mesothelioma and a
patient diagnosed with the disease can succumb to the illness in
less than six to 18 months.
One single asbestos fiber can cause cancer when inhaled. One
square meter of asbestos building material (as used in the
Ministry of Health building) consists of billions of asbestos
fibers.
Asbestos is a set of six naturally silicate minerals used
commercially for their desirable physical properties. The
European Union has banned the use of most forms of asbestos. Only
six African countries -- Algeria, Egypt, Gabon, Mozambique,
Seychelles and South Africa -- have followed suit. No such law
has been passed or discussed in Namibia.
The Ministry of Works would neither deny nor confirm whether there
are other (government) buildings in the country that are
contaminated with asbestos.
ASBESTOS UPDATE: Upper Clyde Insurers Face GBP700,000 Lawsuit
-------------------------------------------------------------
Kirsty Topping for Deadline News reports that a Scottish
shipbuilder died from asbestos-related cancer after the toxic
substance "fell on him like snow", a court will hear.
The widow of Ian MacLeod is suing for GBP700,000 in what lawyers
claim is one of the most extreme examples yet of how a worker was
exposed to asbestos.
Mr. MacLeod spent a decade working for Upper Clyde Shipbuilders
Ltd, moving on in 1963 to an office-based job as a draughtsman.
But his legal team claim massive exposure to asbestos caused the
cancer which killed him 16 months ago at the age of 73.
Although Upper Clyde Ship Builders closed in 1971, lawyers for Mr.
MacLeod's widow, Elizabeth, are suing the firm's insurers in the
Court of Session.
Mr. MacLeod worked on huge ocean liners, such as the Saxonia and
the Ivernia, as an apprentice engineer in the fifties.
Lawyers for his family state in the court papers: "While he was
working in the engine rooms he had to work alongside insulators
known as the 'white mice men.'
"They were working above the deceased . . . They cut up sheets of
asbestos with a saw.
"The dust fell down on top of [Ian] like snow landing on his hair
and his overalls."
They continue: "They also used a paste known as monkey dung. They
applied this to pipe work with a trowel.
"They used to throw the monkey dung around like snowballs.
"All of these operations generated substantial quantities of
asbestos dust in the atmosphere of the engine room."
The court papers describe how Mr. McLeod suffered before his death
in October 2010.
"He had an X-ray which discovered fluid on his lungs. This was
drained.
"In 2010 the deceased found he was experiencing severe chest pain.
In May 2010 he had a further scan and biopsy this time disclosing
the presence of malignancy.
"He continued to suffer severe pain requiring strong medication to
bring it under control.
"He lost appetite and lost weight. He was unable to continue with
his previous activities including coaching table tennis and
playing bowls."
Mrs. MacLeod, from Helensburgh, Argyll and Bute, is suing for
GBP400,000 for herself, for 'the deceased's pain and suffering and
loss of life expectancy' and for loss of financial support. Six
other relatives of Mr. MacLeod are named as seeking GBP50,000 each
in the action.
She said: "This has been very hard for all of us. He was a lovely
person. He wasn't the only one [at the shipyard], there were
other men from the area who worked there."
Dr. Martin Hogg, an expert on asbestos legal cases, said: "It does
sound like one the most extreme cases, even for the time.
"You don't often get blizzard-like conditions."
Dr. Hogg said that, if proved, the allegations would be a "clear
case of oversight by the employer of working conditions".
Thompsons Solicitors are representing Mrs. MacLeod. Their
asbestos expert Laura Blane said: "Mrs. MacLeod's case is
understandably very distressing for the family -- it is impossible
to imagine what they're going through.
"Asbestos has cast a dark cloud over Scotland's industrial history
and torn families apart."
Ms. Blane suggested the case was not the only one they are working
on that involves extreme exposure to asbestos.
She said: "In a number of cases those involved describe piles of
asbestos around them, like snow. This shows just how serious
asbestos exposure could get back then.
"When exposed to the dust the victims had no idea that it would
end up cutting their life short. The victims and their families
deserve support and justice and at Thompsons we do everything
possible to make sure that happens."
Small fibers of asbestos, originally used as fire insulation, can
attach to the inner walls of lungs when inhaled. This can lead to
cancer, and cause other harmful conditions such as asbestosis.
Last year the UK Supreme Court upheld the right for victims of
asbestos who have pleural plaques, a scarring of the lungs from
asbestos, to claim for damages.
Mr. MacLeod's lawyers are seeking damages from the Financial
Services Compensation Scheme, which is effectively an insurance
fund for defunct employers.
Law firm Biggart Baillie, which is defending the action, is
seeking for the case to be dropped, denying Mr. MacLeod contracted
mesothelioma from working for the company.
They are asking for Mr. MacLeod's full employment history and
medical records to be revealed and information about whether Mr.
MacLeod smoked.
After Upper Clyde Shipbuilders collapsed, trade unionist Jimmy
Reid led shipbuilders in a work-in at the site.
ASBESTOS UPDATE: Examiner Assures Safety at Albany Mall Abatement
-----------------------------------------------------------------
Ashley Knight of Fox 31 Online reports that it looks like folks in
Albany are inching closer to a new kind of Italian cuisine.
Demolition has begun to make way for the new Olive Garden.
Construction crews are tearing up what used to be the Inn at the
Albany Mall.
But with other old structures set for demolition like the Heritage
House, many worry about asbestos or other harmful materials being
disturbed.
Senior Plans Examiner, Tracy Hester, says there's nothing to worry
about.
"We actually have a form called a contractor's agreement that they
have to go through to make sure all the infrastructure has been
removed and safeguarded in some fashion before demolition and part
of that process is notification to the state that they have done
due diligence to make sure there is no environmental issues
there," says Hester.
Construction is set to begin in April.
ASBESTOS UPDATE: 4 Cases Filed in St. Louis on Valentine's Day
--------------------------------------------------------------
Kelly Holleran of The Madison / St. Clair Record reports that an
additional four asbestos cases have been added to the docket in
St. Louis Circuit Court.
On Feb. 14, four new complaints were filed in the 22nd Judicial
Circuit in the City of St. Louis.
Randy Cohn, Myles Epperson and Shane Hampton of the Simmons,
Browder, Gianaris, Angelides and Barnerd law firm in Alton were
among the attorneys that brought them.
Bert L. and Gloria Dobson sued 63 defendant corporations while
Janice Kassman filed a lawsuit against 11 defendant corporations.
Stella Lambert named 38 companies as defendants. Danielle Wolfe
listed 38 defendant corporations in her complaint filed on behalf
of her deceased mother, Barbara Kuhl. None of the plaintiffs
specify where they reside.
In their complaint, the Dobsons allege the defendant companies
caused Bert L. Dobson to develop mesothelioma after his exposure
to asbestos-containing products throughout his career as a
mechanic, laborer and farmer at various locations from 1959 until
2007.
In her complaint, Janice Kassman alleges her recently deceased
mother, Phyllis Armo, developed mesothelioma after she worked as a
welder at the Brooklyn Naval Shipyard from 1941 until 1945.
Robert Lambert developed mesothelioma after working as a laborer
and manager at various locations throughout the United States,
according to his wife's complaint.
Danielle Wolfe claims her mother, Barbara Kuhl, developed
mesothelioma after her exposure to asbestos products during her
career as a bookkeeper, dental assistant and waitress at various
locations from 1960 until 2002.
Kuhl was also secondarily exposed to asbestos fibers through her
husband, who worked as a contractor, builder, carpenter and
foreman from 1977 until 1980 and through her brother-in-law, who
worked as a mechanic from 1950 until 1962.
The defendants should have known of the harmful effects of
asbestos, but failed to exercise reasonable care and caution for
the plaintiff's safety, the suits state.
As a result of their asbestos-related diseases, Bert L. Dobson,
Armo, Robert Lambert and Kuhl became disabled and disfigured,
incurred medical costs and suffered great physical pain and mental
anguish, the complaint says. In addition, they became prevented
from pursuing their normal course of employment and, as a result,
lost large sums of money that would have accrued to them, the
plaintiffs claim.
Because of Armo's, Robert Lambert's and Kuhl's deaths, their
family have incurred funeral costs and have been deprived of their
support and society.
In their four-count complaint, the Dobsons are seeking actual and
compensatory damages of more than $50,000, and punitive and
exemplary damages of more than $50,000, plus other relief the
court deems just.
In her four-count complaint, Kassman is seeking punitive and
exemplary damages of more than $50,000 and actual and compensatory
damages of more than $50,000.
In her four-count complaint, Stella Lambert is seeking actual and
compensatory damages of more than $50,000 and punitive and
exemplary damages of more than $50,000.
In her four-count complaint, Danielle Wolfe is seeking actual and
compensatory damages of more than $50,000 and punitive and
exemplary damages of more than $50,000.
St. Louis Circuit Court case numbers: 12-L-841, 12-L-842, 12-L-
840, 12-L-839.
ASBESTOS UPDATE: Motion Against Asbestos Mine Reopening Crumbles
----------------------------------------------------------------
Kevin Dougherty at The Montreal Gazette reports that Lisette
Lapointe, wife of former Parti Quebecois premier Jacques Parizeau,
who now sits in the Quebec legislature as an independent, used her
lack of party ties on Feb. 23 to present a motion calling on the
province to withdraw its offer to finance the reopening of
Quebec's only remaining asbestos mine.
But while she had the support of pro-sovereignty independents,
including Louise Beaudoin, Pierre Curzi and Jean-Martin Aussant,
who left the PQ with Lapointe last year, as well as Amir Khadir,
the only elected member of Quebec solidaire, no one else supported
her motion.
"What disappoints us very much, to see that here the Liberal
party, the Parti Quebecois, they don't say a word today," said
Lapointe. "They refused to support our motion."
Lapointe's motion noted that the International Agency for Research
on Cancer, affiliated with the World Health Organization, has
concluded after a full review of the scientific research that
asbestos, including chrysotile asbestos mined in Quebec, "is
carcinogenic in all its forms."
Quebec's Industry Department has offered Balcorp Ltd. of Montreal
a $58-million loan guarantee, provided it finds $25 million in
financing to reopen the Jeffrey Mine, an underground mine in the
Quebec town of Asbestos.
Balcorp intends to sell the Quebec asbestos in India, where it is
mixed with cement to make low-cost concrete piping.
Khadir held up photographs showing workers in India manipulating
asbestos without safety equipment.
Breathing in the fibrous mineral can cause various cancers,
including mesothelioma, a cancer of the lung linings. A slow-
developing cancer, mesothelioma can strike 20 years or longer
after exposure to asbestos.
"Stop exporting sickness and death," Lapointe said. "Those are
harsh words, I know, but that's the reality."
Curzi suggested that the $58-million loan guarantee could be
better spent creating alternate jobs in the region.
Khadir said the Liberal government, in power for almost nine
years, should show leadership in developing alternatives to jobs
in the Jeffery Mine, blaming the "mining lobby" for supporting
efforts to reopen the asbestos mine.
ASBESTOS UPDATE: Mesothelioma Toll at 32 Deaths in Sevenoaks
------------------------------------------------------------
Sevenoaks Chronicle at thisiskent.co.uk reports that more
Sevenoaks residents die of asbestos-related cancer than almost
anywhere else in England and Wales.
New figures show 32 people in the district died from mesothelioma
-- a terminal lung cancer caused by exposure to the silicate
fibers, which occur naturally and are used in building materials
-- from 2006 until 2010.
The statistics, released by the Association of Personal Injury
Lawyers (APIL), means an average of 3.7 deaths per 10,000 people
-- far above the national average of 2.5 -- meaning more people
die of mesothelioma in Sevenoaks per head of the population than
in most other parts of the country.
And nobody knows this better than the family of Andrew Harry
Barber.
A former chartered quantity surveyor, the Otford resident died
from mesothelioma in February last year aged 83. He had worked
for years in the building trade, eventually opening his own
workshop in Meopham.
But son Richard said his diagnosis still came as a shock.
He explained: "With hindsight, it's perfectly clear he had been
exposed to asbestos for many years and then he opened his own
shop.
There are different types of asbestos, different color ratings --
and he had worked with blue, one of the most deadly. But while we
knew all that, it wasn't as though we were expecting the
diagnosis. It was just that the bullet eventually came to Dad."
His father had been in good health, but then developed a cough and
chest pain that led to his diagnosis.
His son continued: "It, unfortunately, is a terrible disease and
once you have it there is very little they can do."
Following Mr. Barber's death, Richard, acting on his mother's
behalf, went through Thompson Law, a legal practice with a
mesothelioma case-dedicated lawyer, to see if there was any
compensation available.
But because of his father's long and varied career, little
paperwork could be found, although Richard said Thompson Law
"turned over every stone for us".
He said people need to be more aware of the risks of asbestos
exposure, adding: "A year after Dad's loss, we can take a step
back and miss him. There may have been ten more years left in him
and we have lost out on them."
ASBESTOS UPDATE: Cambridge U "Settles" Exposed Carpenter
--------------------------------------------------------
Julian Sturdy of BBC News Cambridgeshire reports that Cambridge
University has paid compensation to one of its carpenters who
contracted an asbestos-related cancer.
Bob Murphy, who has terminal mesothelioma (a cancer of the lung
lining caused by inhaling asbestos dust), takes a cocktail of 30
drugs a day to controls his pain.
He worked in the estates department between 1989 and 2006 and
claims he was given insufficient protection.
The university has denied liability and said the payout is not an
admission of negligence.
Mr. Murphy, 65, told BBC Look East: "I was just a worker. At the
end of the day you're given a job and you just get on with it and
now in hindsight I would have touched nothing.
"I am suffering because of my ignorance.
"All we was given was a paper mask -- and also a special hoover
which we thought was an asbestos one."
A BBC investigation has discovered other breaches in the
university's handling of white asbestos.
As a major property owner, Cambridge University, like many
institutions, has a program of asbestos eradication.
In 2008 during the construction of the GBP4 million Kavli
Institute for Cosmology, workmen demolished an asbestos concrete
barn without proper precautions.
A university worker secretly filmed workers smashing the building
with scaffolding poles, and breaking up roof sheeting.
A worker who witnessed the demolition and gave his name as
Russell, said: "I was just horrified because these sheets were
just crashing to the ground . . .
"We couldn't believe that the university was not protecting us as
employees and it was even broken up outside the door where we
walked into."
In the same month, in an unconnected incident, King's College was
fined GBP16,000 for exposing employees to asbestos.
In a statement, Cambridge University said: "The construction
company contracted to dismantle the barn in question in 2008 were
negligent.
"That company is no longer on the university's supplier list.
"Since this incident asbestos management procedures have been
revised and all contractors are audited on a regular basis.
"A payout to a mesothelioma victim is an insurance matter in
recognition of the illness which may have been contracted in the
workplace, not an admission of any negligence on the part of the
employer."
The Health and Safety Executive said an investigation into the
barn demolition had identified shortcomings in the way the work
had been carried out, but there had been no prosecution.
A spokesperson said: "HSE inspectors accepted that the university
and others involved took this matter very seriously and have acted
robustly to prevent repetition.
"Given that the risks were so low, it was not considered necessary
or appropriate for HSE to take further action."
Mr. Murphy said he has already outlived the prediction of his
terminal illness.
He had left the university before the barn demolition but claimed
he was exposed to white asbestos many times.
"I've got a terminal illness. So how can it not be dangerous when
you're told you've got eight to 18 months?
"I was looking forward to a long and happy retirement," he said.
ASBESTOS UPDATE: Macedon Council Orders Audit After Fiber Find
--------------------------------------------------------------
ABC News reports that the Macedon Ranges Shire has ordered an
asbestos audit of all its kindergartens, after a small amount of
the material was found in one of them.
The asbestos was removed from the Woodend kindergarten on Feb. 23
and the building has been declared safe to reopen.
However, the council's Dale Thornton says it is a concern the
material was not found when the last asbestos audit was done.
"Yes we had an asbestos audit done in 2006 and that was intended
to be a complete audit but the asbestos that was uncovered on
Feb. 23 wasn't on the asbestos register," he said.
"When you're dealing with the health and safety of the community
and children you can't be too careful, so we've ordered another
complete audit."
ASBESTOS UPDATE: Jan Juc Parklands Up For Remediation
-----------------------------------------------------
Tom Bennett of the Geelong Advertiser reports that Surf Coast
Shire has dismissed suggestions it knew asbestos was present in
Jan Juc parklands six weeks before any action was taken.
Emails from concerned residents in Torquay and Jan Juc have been
circulating, accusing the shire of knowing about the asbestos at
Jan Juc Reserve since Jan. 9.
Shire Mayor Brian McKiterick said the council initially reported
its concerns over the state of the worksite to the RACV in
December.
A pipeline has been put through the park to bring stormwater from
Jan Juc Creek for use on the fairways of the upgraded RACV Torquay
Golf Club resort.
"Council has, since December, repeatedly asked the RACV to clean
away debris, including broken glass and rubble from its worksite,"
he said.
"The presence of asbestos fragments was only suspected on Feb. 20,
after which testing was commissioned and the site fenced off.
"Small amounts of non-friable (uncrushed) asbestos have been found
on the site. These amounts of undisturbed asbestos present a low
health risk.
"A full assessment is being undertaken by a qualified occupational
hygienist to ensure the safety of nearby residents and the public
at large."
The true extent and source of the asbestos-contaminated soil may
remain unknown for another week.
RACV golf club site project manager Bruce Van Every said core
samples were being taken and would be scientifically analyzed.
He said the contaminated soil either came from the original
excavation, was brought in by the contractor or had been dumped
there by a third party.
"We need to know how much asbestos we are dealing with and its
possible origin," he said.
"I expect it will be at least a week before we know the answers."
Mr. Van Every said environmental experts had been engaged to
provide a master plan for remediation of the site.
WorkSafe Joins EPA & Surf Coast On Jan Juc Site
In a later report, Geelong Advertiser's Tom Bennett reports that a
farm near Waurn Ponds has been identified as the source of the
asbestos-contaminated soil that has forced the closure of much of
Jan Juc Creek Reserve.
WorkSafe Victoria spokesman Michael Birt said a house and other
buildings had been recently demolished on the farm.
"The back-fill taken from the property contained chunks of
concrete, broken bricks, glass and some asbestos," he said.
The alarm was raised in December when a Jan Juc resident noticed
"bodgey back-fill material" had been used to cover a pipeline and
trench installed by a drainage contractor.
The pipeline was constructed to bring storm water from Jan Juc
Creek for use on the fairways of the upgraded RACV Torquay Golf
Club resort.
EPA tests confirmed the presence of asbestos on Feb. 23 and a
fence was erected around the site.
WorkSafe has become the third government agency after the EPA and
the Surf Coast Shire to become involved in investigating the
contamination.
Mr. Birt acknowledged residents' concerns that they, their
families and council workers may have been exposed to asbestos.
"There is no safe level of exposure to asbestos, however, that is
not to say everyone who is exposed will become ill," he said.
"Initial test results indicate there is only a small amount of
asbestos present and it is only a low-level risk."
Mr. Birt said his team would investigate how long the RACV and
council staff had worked at the site.
"It is too soon to know whether the RACV, its contractor or the
shire will face charges (under the Occupational Health and Safety
Act)," he said.
A recently convened residents group has aired its fears and
concerns about the issue.
Group spokesman Kevin Mercer said there was anger the council did
not fence-off the contaminated area sooner.
"We feel the council has let us down," he said.
"It has divided loyalties and does not have residents' safety as
its No. 1 concern."
"We need to know how to monitor and access the degree of danger.
And we need to know what the early signs of exposure are."
The RACV said a firm of environmental experts had been engaged to
conduct further tests to gauge the extent of the problem.
The results will be known within the first week of March. A
remediation plan will be drawn up and submitted to the EPA and
council for approval.
ASBESTOS UPDATE: NIC Seeks $16MM Surplus From Montana's Policy
--------------------------------------------------------------
The Associated Press reports that a Nebraska insurance company has
filed a lawsuit against the state of Montana to recover $16
million that was used primarily to cover a sweeping financial
settlement of asbestos-related claims from residents of the
Superfund town of Libby.
The lawsuit from the Omaha-based National Indemnity Co. asks a
Montana judge to order the return of any payments in the
settlement that fell outside the state's insurance policy.
Most of the money from National Indemnity went toward a $43
million settlement in September with more than a thousand asbestos
victims. Claimants in the case said the state knew for decades
that asbestos dust from a W.R. Grace vermiculite mine was
sickening people in Libby, but failed to act.
An estimated 400 people have been killed and 1,750 sickened in and
around Libby, considered the country's deadliest Superfund site.
The settlement money was put into a trust that was not named as a
defendant in the case. That means the dispute is not expected to
take away from payments to victims.
"I don't think this has any effect on the trust," said Bill
Gianoulias, chief legal counsel for the Montana Department of
Administration, which oversaw the settlement.
Gianoulias declined to comment further on the lawsuit and said the
state will respond in court filings.
National Indemnity said in the lawsuit that it paid into the
settlement under a 2005 agreement that reserved the company's
right to seek future recovery of the money. The company claims
the state failed to properly notice the company about the
lawsuits, and that an outside counsel for the state decided to
fight the claims without notifying National Indemnity.
The insurance policy at the center of the case was a comprehensive
general liability policy effective from July 1973 to July 1975,
when it was cancelled one year early for unknown reasons.
"National and the state have ongoing disputes about the parties'
respective rights and obligations" under the terms of the policy,
the lawsuits states.
National Indemnity attorney John Maynard declined to discuss the
suit.
In addition to the money from National Indemnity, the settlement
was covered by $26.8 million from the state's self-insurance
reserve fund and $100,000 from the Montana Insurance Guaranty
Association.
More than 60% of the claimants in the Libby settlement, or 764
people, had received settlement checks through mid-February,
according to Nancy Gibson, the Missoula-based attorney who is
overseeing the settlement trust.
ASBESTOS UPDATE: Chrysotile Industry Refuses "Natural Death"
------------------------------------------------------------
Tim Povtak of The Mesothelioma center relates that a motion to
withdraw the government's offer of a $58 million loan guarantee to
revitalize the asbestos mining industry in Canada was dropped
because of a lack of support in the Quebec National Assembly.
Despite a growing anti-asbestos sentiment throughout Canada, the
majority in the Quebec Assembly failed to support the motion made
by independent lawmaker Lisette Lapointe.
The last two asbestos mines in Canada were closed late in 2011 for
environmental and financial reasons, but Premier Jean Charest has
dangled that loan guarantee to Balcorp Ltd. if it can raise the
$25 million in financing to reopen the Jeffrey Mine in Quebec.
An exposure to asbestos fibers can cause of variety of respiratory
illnesses, including mesothelioma cancer.
Once prevalent in a wide variety of products, its use has been
reduced dramatically in recent decades because of its toxic
reputation. It is banned in more than 50 countries, but not in
Canada or the United States.
"It's disappointing -- and disgusting -- that members of the
National Assembly did not stand with Ms. Lapointe," Canadian
activist Stacy Cattron told Asbestos.com. "The people of Quebec
deserve politicians who are not corrupted by junk science from
asbestos industry lobbyists."
Cattron, whose father died from mesothelioma, is co-founder of the
Canadian Voices of Asbestos Victims. Like many activists around
the country, she was dismayed to hear of events in the General
Assembly.
"This is a perfect opportunity to let this appalling industry die
a natural death while there are no miners employed there," Cattran
said. "This is an industry that has used deceit to promote its
agenda. Not only does it not deserve government funding, but
(those that run it) deserve prison time."
Balcorp, which continues to pursue the loan guarantee, has assured
government officials that none of the asbestos mined would be used
in Canada.
It also has said that the asbestos mined there would be handled
safely. It expects to export much of it to India, where it is
used in cement for building purposes.
"Stop supporting sickness and death," Lapointe said during her
motion. "Those are harsh words, I know but that's the reality."
Lapointe is the wife of former Parti Quebecois premier Jacques
Parizeau, now an independent legislator. As part of the motion,
Lapointe noted that the International Agency for Research on
Cancer already concluded that the chrysotile asbestos mined in
Quebec, "is carcinogenic in all forms."
One of her few supporters suggested that the $58 million loan
guarantee would be better spent creating other jobs in the region.
Balcorp is run by businessman Balit Chadha. His wife, Roshi
Chadha, is a corporate executive of Seja Trade, an exporting
business. She recently resigned from her position with the
Canadian Red Cross Board of Directors because of pressure from
various anti-asbestos groups.
Also on Feb. 23, former Quebec legislator Pat Martin joined a
group protesting Charest's support of the loan guarantee. Charest
has said previously that it is only promoting the "safe use," of
chrysotile asbestos."
ASBESTOS UPDATE: Medway Group Offers Help to Mesothelioma Victims
-----------------------------------------------------------------
The Medway Messenger reports that the rate of deaths from a cancer
caused by asbestos will rise in the next three years. Already,
the devastating condition has caused at least 104 deaths in the
Towns.
Mesothelioma is incurable and the patient usually dies within a
year of diagnosis. Medway has the second highest death rate from
the disease in England and Wales. The disease can linger
undetected for up to 45 years.
Asbestos was widely used as a construction insulation material.
At Chatham Dockyard, one of the biggest employers, it was
instrumental in all aspects of ship building and ship repairs.
At the British Uralite factory in Higham, chimney pots, pipes and
tiles were made from raw asbestos. Similarly, it was also used in
power stations and heavy engineering plants in the Towns.
Asbestos was also used as a building material in schools and homes
between the 1950s and 1980s. While the dockyard and British
Uralite have long since closed they have left behind a legacy of
death.
The increasing number of fatalities prompted nurse Frances McKay,
a nurse based at Medway Maritime Hospital's lung cancer and
mesothelioma unit, to start a monthly support group for patients
and their families.
Symptoms are shortness of breath, chest pains, weight loss and
unexplained tiredness
Mrs. McKay said: "While there is still no cure, five years ago
there was nothing we could do. But today, because of the advance
in medicine, if the patient is well enough we can use
chemotherapy.
"It is not like other cancers. It is not a solid substance that
is easily visible like a tumour. It is a paste which wraps itself
around the lining of the lungs."
She feels any predicted number of those who may fall victim to the
illness is unreliable.
She said: "It is not just those who have worked directly with the
material who may be affected. The dust would have been in the air
so it is also those who have worked alongside them. Men and women
used to work all day long handling asbestos and then they would
travel together on the bus to and from work in their work clothes.
"Asbestos particles would be in the air around them at all times."
Mrs. McKay has organized a series of conferences to raise
awareness, including one in the former naval base which attracted
200 visitors.
Her unit, which she runs with fellow nurse Caroline Williams and
Pat Cameron from the Wisdom Hospice, won the Department of
Health's health and social care certificate in 2008.
She said: "In Medway, we have the expertise. We are good at
detecting it and we know how to support the patient and victim.
"Our unit is the only one of its kind in Kent. It is the best
place to be if you do contract the illness."
ASBESTOS UPDATE: Freight Firm Sued for Fiber Exposure
-----------------------------------------------------
Tim Clarke of the Redditch Standard reports that a Redditch
freight firm, its managing director and a Birmingham contractor
have been fined a total of GBP62,500 for putting at least 20
people at risk of lung disease from asbestos fibers.
The Health and Safety Executive (HSE) prosecuted Avon Freight
Group Ltd (AFG) and its managing director Simon Poole, together
with builder Ronald MacPhee, over the exposure during work to
convert the unit in Hemming Road, Redditch, into a new storage
centre and headquarters for AFG.
AFG's architect commissioned a survey that identified asbestos
insulation board in a number of partition walls, which the company
wanted to demolish, and got estimates for its removal from three
licensed contractors.
But Worcester Crown Court heard on Wednesday, Feb. 22, how Poole
instructed builder MacPhee, who was carrying out minor
refurbishment work on the premises, to carry out the work even
though he did not have a license.
MacPhee and two other workers removed almost 1.5 tons of asbestos
insulation board from the site and disposed of it as asbestos
cement, which can be removed without a license, sometime between
April 24 and May 16, 2008.
Five months later, two other companies, who had been commissioned
to demolish parts of the building and build an extension,
discovered pieces of asbestos insulation board on the floor and
still attached to retaining screws on the walls and alerted HSE.
An analysis of the area revealed it was contaminated with asbestos
fibers and required decontamination by a specialist licensed
asbestos contractor.
HSE's investigation found at least 20 people, including contract
workers on the project, employees of AFG and workers for a tenant
who had been using the site for storage, could have inhaled
asbestos fibers during the five months.
AFG pleaded guilty to breaching the Health and Safety at Work Act
1974 and was fined GBP30,000 and ordered to pay GBP26,147 costs.
Poole, of Streetly Lane, Sutton Coldfield, pleaded guilty and was
fined GBP30,000 and ordered to pay GBP26,147 costs.
MacPhee, of Birmingham, also pleaded guilty and was fined GBP2,500
and ordered to pay GBP500 costs.
Speaking after the hearing, HSE inspector Tariq Khan said: "This
type of exposure could cause life-threatening illnesses in years
to come but because it takes so long to develop, these people will
be left with years of uncertainty."
ASBESTOS UPDATE: 28 Mesothelioma Deaths in Kingston in 4yrs
-----------------------------------------------------------
Tom Barnes of Your Local Guardian reports Nearly 30 people have
died of asbestos-related cancer in Kingston in a four-year period
-- well above the national average.
The figures, relating to 2006-10, showed 28 deaths in the borough
were because of mesothelioma -- a terminal cancer of the lung wall
caused by asbestos exposure.
Symptoms from asbestos inhalation usually develop years after
coming in contact with the mineral.
The Association of Personal Injury Lawyers wants the Government to
set up a fund for sufferers as many can no longer trace the
employer who exposed them to asbestos.
There have been several asbestos scares in the borough in recent
years, including the potentially deadly mineral being found at
Tiffin Girls' School in 2007.
ASBESTOS UPDATE: RBI Awards $100,000 for "The Block" Cleanup
------------------------------------------------------------
Megan Dombroski of Mountain Xpress, Ashvill, N.C., posted an
excerpt of a press release from the Land of Sky Regional Council:
Land of Sky Regional Council's Regional Brownfields Initiative
(RBI) is pleased to announce the award of a $100,000 sub-grant to
Mountain Housing Opportunities (MHO) and Eagle Market Development
Corporation (EMDC).
Funds from the RBI Revolving Loan Fund (RLF) will be used for a
sub-grant to assist with the cleanup of lead paint and asbestos at
the Glen Rock Hotel in Asheville's River Arts District and the Del
Cardo and Collette buildings in the historic African American
business district, known as "The Block" in Asheville.
The Glen Rock Hotel is Phase III of MHO's Glen Rock Development
Project; plans for renovation of the building include 22
affordable housing units and approximately 14,000 sf. of
commercial space. The DelCardo and Collette buildings are part of
the collaborative effort between MHO and the Eagle Market
Development Corporation.
The Eagle Market Place project is a mixed use residential and
commercial project which includes commercial space and 70 units of
affordable housing.
ASBESTOS UPDATE: 29 Mesothelioma Deaths in Luton in 4yrs
--------------------------------------------------------
Luton News Herald & Post reports that a campaign group says a
compensation 'safety net' is needed for people suffering from
asbestos-related cancer.
Figures obtained by not-for-profit campaign group the Association
of Personal Injury Lawyers (APIL) show that the death rate in
Luton from mesothelioma is higher than the national average.
From 2006 to the end of 2010, mesothelioma, a terminal cancer of
the lung wall, was recorded as the underlying cause of 29 deaths
in the area.
It is the equivalent to three deaths in 100,000 people. The
average for England and Wales during the same period was 2.5.
APIL president David Bott said: "What many people don't realize is
that hundreds of sufferers across the UK cannot get the
compensation they need to help them through the last days of their
life.
ASBESTOS UPDATE: Accidental Fire Disrupts Control Tower Abatement
-----------------------------------------------------------------
Patrick Cassidy of Cape Cod Online reports that work to remove
asbestos from the old air traffic control tower at Barnstable
Municipal Airport sparked a small fire on Feb. 24.
Firefighters responded to the gutted 50-year-old building shortly
before 10 a.m.
They spent an hour and a half cutting into the old tower to expose
an area that was smoldering, at times hacking at the roof with an
ax and sawing into the metal edge with an electric saw. Small
amounts of smoke periodically puffed out from the roof as they
worked in the cold rain.
The fire began as a worker was cutting vertical lines into the
metal walls of the building to remove caulk that is potentially
contaminated with asbestos, Hyannis Deputy Fire Chief Dean
Melanson said.
The torch touched off a fire in the roof, which is covered with
tar and gravel, Melanson said. Several layers of fiberboard
beneath the surface caught fire, he said.
"We spoke with the asbestos abatement guys and what we were doing
was fine," he said, adding that firefighters were not working in
an area where asbestos is located.
An Occupational Safety and Health Administration official on the
scene said he would have to wait for firefighters to finish
working on the building before getting inside.
Melanson said work being done on the building had proper permits
and workers had appropriate safety equipment in place, including
hoses to put out a potential fire.
Firefighters took extra time to access the fire so as not to
destroy a safety railing around the roof that was still being used
by workers, he said.
The old air traffic control tower was replaced at the end of 2011
by a new, taller tower. Work on the demolition of the tower and
the old terminal next door has been slowed by the discovery of
additional asbestos in the buildings.
Airport officials received approval earlier in February from the
Barnstable Town Council to spend $365,000 to remove the asbestos
from the tower.
Officials have now asked for a little more than $200,000 to remove
asbestos found in the old terminal, according to airport manager
Roland "Bud" Breault. The demolition of the terminal building is
already under way.
ASBESTOS UPDATE: School Chairs Urge Parents to Send SOS to MPP
--------------------------------------------------------------
Robert Sibley of The Ottawa Citizen reports that parents concerned
about conditions at Broadview Public School should contact their
local MPP because there is little the Ottawa Carleton District
School Board can do to remedy the situation, board chairwoman
Jennifer McKenzie says.
"There are a number of schools across the district of a similar
age and vintage, and Broadview is certainly one of the ones that
could use a significant renovation," McKenzie said Feb. 23.
However, she suggested the only way Broadview would get the
renovation money it needed was if the Ontario government came up
with the cash. "The province has not felt the need to provide the
funding for that renovation to this point," McKenzie said, adding
the school board included the school on its capital priority list
last year.
The school on Broadview Avenue, near Carling Avenue, is on the
board's priority list for much-needed renovations: to the tune of
about $4 million.
However, the board, which has schools scattered throughout the
Ottawa area, has a backlog of about $380 million in deferred
renovation and maintenance projects and only $11.7 million
available for such work.
Broadview is a large school with two gymnasiums, computer and
science labs, a library and resource centre, an art room,
instrumental music room and a daycare centre. It's various
programs include, among others, an English and Core French program
for students from Junior Kindergarten to Grade 8, plus an early
French immersion program for students from Senior Kindergarten to
Grade 5.
However, the co-chairwomen of the Broadview School Council, Liz
Burgess and Claire Todd, toured the school this week and didn't
like what they saw.
"We were shocked at the conditions," Burgess and Todd said in a
report to fellow council members. "Structural issues are causing
a wall in the large gym to bulge. It has been reinforced by
rebar, but the underlying issues have not been addressed."
The twosome expressed dismay at what some students had to endure.
"In the primary wing, two classrooms of students are being housed
in the basement. Even though it was a warm, springlike day, the
ancient boiler was running at full tilt, making conditions in some
of the classes unbearably hot.
"We also saw where there had been serious flooding in the basement
school rooms. There are, we suspect, asbestos-covered water pipes
on the ceilings of some classes and asbestos floor tiles in
others."
They also reported leaky windows and "the development of mould" in
some classrooms.
Burgess and Todd concluded their report, urging parents with
children in the school to "take action," with petitions and
letters to Ottawa Centre MPP Yasir Naqvi and Minister of Education
Laurel Broten. McKenzie seemed to agree with that strategy.
"The money is not going to come easily," she said, "but we have to
see our schools as long-term investments and hope the province
sees it that way as well."
ASBESTOS UPDATE: NZ Defense Force to be Asbestos-Free by 2014
-------------------------------------------------------------
Voxy News Engine posts that the New Zealand Defence Force welcomed
a Ministry of Defence evaluation report on its management of
asbestos on Feb. 27.
The review looked at the NZ Defence Force's approach to the use,
management and storage of asbestos and products containing
asbestos. The Ministry of Defence (MoD) evaluation concludes:
"The NZ Defence Force has appropriate policies for the management
and handling of asbestos, whether it is in building materials or
in equipment componentry."
Chief of Defence Force, Lieutenant General Rhys Jones, says the
Ministry of Defence's report is a useful evaluation of current
NZDF policy and procedures to meet the Government's legislative
requirements for work place management of asbestos products.
"We welcome the report's findings that the NZ Defence Force has
the appropriate polices in place, however we acknowledge that
further policy development is needed to align with the
requirements of Hazardous Substances and Health and Safety
legislation.
"The NZ Defence Force accepts the report's recommendations and a
number of actions have been taken, including measures to improve
the identification and recording of items containing asbestos,
utilizing existing NZ Defence Force linkages with Australian
Defence Force asbestos experts."
The MoD found that while the NZ Defence Force has some inventory
that contains asbestos, it is not regarded as a significant risk.
There is no current New Zealand government policy or directive to
remove asbestos containing materials.
However, for a number of years the Royal New Zealand Navy has
adopted a deliberate policy of not buying components with
asbestos; the New Zealand Army has removed asbestos brake linings,
asbestos grinding disks and welding blankets from its inventory;
and the Royal New Zealand Air Force believes it has no significant
inventory lines which may contain asbestos.
The MoD evaluation report also confirms that, "the NZ Defence
Force is aware of, and takes appropriate steps to mitigate the
risk presented by legacy asbestos building materials".
For example, a previously announced $7 million upgrade of
ammunition storage facilities at Kauri Point includes the
construction of new storage bunkers that will enable all old
buildings to be demolished, removing legacy asbestos completely.
The redevelopment expected to be completed by 2014.
ASBESTOS UPDATE: Town of Union Seeks to Waive Removal Permit Fees
-----------------------------------------------------------------
Steve Reilly of The Ithaca Journal reports that Broome County's
largest municipality is pushing the state Department of Labor to
remove an expensive piece of red tape from the flood recovery
process.
The Town of Union has requested that the state Department of Labor
waive its costly asbestos removal notification fees for properties
that are demolished as part of the Federal Emergency Management
Agency (FEMA) buyout process.
While FEMA will ultimately decide which properties can participate
in the program, scores of Southern Tier residents have been
applying for buyouts. Municipalities are responsible for
demolitions after they take control of a property.
"We are up to 180 applications right now," Union Deputy Supervisor
Rose Sotak said of the buyout process. "For every one of them
that would be (approved) ...The asbestos removal permit fee can be
up to $4,000. That could be $720,000."
Other area towns, including the Town of Vestal, are in support of
the measure.
A resolution introduced by Sotak at last week's meeting of the New
York State Association of Towns put the issue on the group's 2012
legislative agenda. The association is requesting an amendment to
state labor law that would waive the fees for municipalities that
are recovering from disasters.
"We are trying to get some relief," Sotak said. "That's a big
chunk of money."
In a statement, Department of Labor spokesman Joe Morrissey
acknowledged the request but said the fee is required by state law
and cannot be waived.
"The notification gives DOL information about where asbestos
activities are occurring, and allows us to schedule and prioritize
our work," Morrissey said. "We follow this notification fee with
a thorough inspection of the site to ensure that the community is
protected from any asbestos."
When the amount of asbestos cannot be quantified -- such as when a
structure is unsafe to enter -- the maximum fee is set at $4,000,
he said.
"The Department of Labor is currently investigating ways to reduce
that cost for the Town of Union," Morrissey said.
ASBESTOS UPDATE: 41 Mesothelioma Deaths in W Norfolk in 4yrs
------------------------------------------------------------
Lynn News reports that new statistics have shown that the death
rate in West Norfolk for asbestos-related cancer is well above the
national average.
The figures were collected by campaign group, the Association of
Personal Injury Lawyers (APIL).
They showed that from 2006 to the end of 2010, mesothelioma, a
terminal cancer of the lung wall, was recorded as the cause of 41
deaths in the area.
This is equivalent to 3.1 deaths in 100,000 people; the average
for England and Wales during this time was 2.5.
David Bott, APIL president, said: "This is bad enough, but the
number of men dying from this disease is expected to peak during
the next five years.
"What many people don't realize is that hundreds of sufferers
across the UK cannot get the compensation they need to help them
through the last days of their life.
"We need the Government to bring forward proposals for a fund of
last resort as a safety net for injured workers who cannot pursue
justice."
ASBESTOS UPDATE: Sunoco Refinery Begins Removal of Old Equipment
----------------------------------------------------------------
Gina Bittner of the Gloucester County Times reports that asbestos
removal has begun at the Sunoco Eagle Point Refinery, signaling
the beginning of an $11.5 million partial dismantling process.
In two phases, Sunoco will remove 22 pieces of processing
equipment from the Crown Point Road site within the next 18 to 30
months.
"Eagle Point may not be a working refinery any longer, but it's
still an important part of our business," Sunoco Communications
Specialist Joe McGinn said. "It's an operating -- and growing --
fuel terminal that we continue to invest money in. Right now,
there are nearly 200 people (employees and contractors) working to
upgrade the infrastructure so it can be a world-class terminal
where we can store and supply fuel to the East Coast. We're
installing new pipes, expanding docks, upgrading our ability to
unload rail cars, and expanding storage for refined products."
In order to complete the process, Sunoco had to apply for two
permits: asbestos removal and demolition.
According to township Administrator Eric Campo and Public Works
Director Phil Zimm, no buildings will be removed from the
property. Additionally, the dismantling will not disturb any
ground or foundation.
"It's just the processing equipment used in the refining
operation," Campo said. "While that is a large operation, there
will still be all of the tanks and foundations and other buildings
that are on that property."
NCM -- a Westville based demolition and remediation firm -- has
been contracted by Sunoco to dismantle and salvage the processing
equipment, a matter which required township approval. McGinn said
it also required state approval; however, a New Jersey Department
of Environmental Protection (NJDEP) spokesman said Sunoco required
no permits from them to dismantle equipment.
"They have been and will continue to work with DEP on
contamination cleanup-related issues," Lawrence Hajna said.
First, NCM will remove all asbestos-containing thermal system
insulation (TSI) from horizontal tanks and vessels, and from
vertical towers and tanks up to 30 feet above ground level. Also,
any asbestos-containing TSI from all areas and up to about 30 feet
above ground on all towers, all transite panels from buildings,
and other asbestos that may be found. Zimm said a licensed New
Jersey certified asbestos contractor would be present at all times
during this phase.
The next phase will begin only after all asbestos-contaminated
material is gone.
"The project is ongoing, and NCM expects to complete the work by
April 2014," said McGinn. "Dismantling the equipment potentially
paves the way for future remediation and reuse of the former
processing area of the site."
Before Sunoco filed the permits, Zimm and township police Chief
Craig Mangano sat down with NCM.
"We need to have answers for the people," Zimm said of his desire
to discuss exactly what was happening at the site.
Additionally, NCM sent a letter to all adjoining properties
surrounding Eagle Point, notifying them of the construction.
As far as activity on the site, Zimm said the "worst case
scenario" would be 10 trucks per day on the site, but that won't
always be the case.
Following completion of both phases, Zimm will be asked to inspect
and approve the project.
ASBESTOS UPDATE: Renovation Releases Undetectable Toxic Materials
-----------------------------------------------------------------
Stephanie Hoenig of Monsters and Critics reports that homes built
or extensively renovated between 1960 and 1990 could contain toxic
substances likely to be released in significant quantities when
being refurbished.
Gone are the days when asbestos, certain products for preserving
wood or adhesives based on carbolineum were widely used, but they
remain impregnated in many homes and can be released when work is
done.
A thorough check needs to be carried out before renovation, says
Eva Reinhold-Postina, who works for an association of private
construction companies in Berlin. Particular care should be taken
with buildings built or renovated during the 1970s and 1980s, she
says.
Hans Ulrich-Raithel of the Environment Institute in Munich says
this advice should be extended to cover the 1960s as well,
particularly in the case of homes containing a lot of wood. He
points to products containing DDT, Lindane and PCP that were
widely used and have since been taken off the market.
"Harmful substances in home interiors cannot always be smelt or
seen," Ulrich-Raithel says, noting that wood preservation toxins
tend to have a long half-life. His advice is to enquire carefully
from the construction company involved and when in doubt to have
an analysis done.
In the event of renovation, the paneling and beams need to be
removed as far as possible, and where not possible to be painted
with a protective coating. This prevents the toxins from being
released into the interior.
Old parquet floors may be a source of so-called polycyclic
aromatic hydrocarbons (PAHs) or polychlorinated biphenyls (PCBs).
These toxic substances found widespread use from around 1900 up to
the early 1970s and even longer in some countries.
"Whether or not parquet with toxic adhesive needs to be ripped up
depends on the state of the parquet," says Dirk Petersen of a
consumer watchdog in Germany. If the floor has been properly
sealed there are few grounds for concern.
But if there are gaps in the flooring, tiny particles of glue
containing the toxins could come to the surface, and in this case
removal should be considered. Analysis of house dust or of
remnants of the adhesive will show whether PAHs or PCBs are
present.
Older PVC flooring could contain asbestos fibers. If the flooring
is intact and stuck down to the surface beneath, a new floor
covering can simply be fitted over the top.
The old flooring should under no circumstances be worked with
machinery, as this results in fine dust containing asbestos
fibers, Ulrich-Raithel says. Only specialist firms are allowed to
remove floors of this kind.
Floors made of flexible PVC tiles laid between the 1940s and 1960s
present a similar problem and need to be covered, if still in good
condition, or be removed by specialists for disposal.
ASBESTOS UPDATE: Reforms Forcing Claimants to Pay GBP2,300 Slammed
------------------------------------------------------------------
The Daily Mirror reports asbestos victims will have to fork out
thousands of pounds to claim compensation for their fatal
illnesses.
Sufferers are demanding Justice Secretary Ken Clarke ditches his
"abhorrent" reforms that would force them to pay two new fees.
Mr. Clarke says the changes -- which would affect anyone seeking
damages for an industrial disease -- are needed to halt the rising
number of claims from drivers who falsely say they have whiplash.
But campaigners warn that thousands of people dying from asbestos-
related cancer mesothelioma would be put off from pursuing claims.
In the current system the defendant, such as a big company, picks
up the cost of insurance and pays the legal fees if they lose the
case.
Mr. Clarke now wants claimants to pay an upfront insurance fee of
around GBP2,300 so if they lose they are protected from having to
pay the defendant's costs.
The new rules would also mean if victims win their case they would
then have to hand 25% of the compensation to their lawyer.
An alliance of Labour, Tory and Lib Dem peers has tabled a series
of amendments to derail Mr. Clarke's plans.
Crossbench peer Lord Alton of Liverpool said it would be a
"tragedy and a profound injustice" if they did not fight the
proposals.
Shadow justice minister Andy Slaughter said: "The Government says
their reforms will stop whiplash claims. But they're not just
stopping whiplash cases, they're also trying to stop serious
industrial disease and workplace injury cases.
"This is all part of a campaign to protect insurance companies and
badly behaving industrial giants at the expense of people who
worked hard all their lives and did nothing wrong.
"I've met many mesothelioma sufferers and they say all say Ken
Clarke just doesn't understand."
The Asbestos Victims Support Groups Forum UK has written to Tory
Mr. Clarke urging him to rethink his reforms.
Their letter says: "The vast majority of occupationally-related
respiratory diseases are asbestos-related. Of those diseases,
mesothelioma accounts for some 50%.
"It is considered abhorrent that dying asbestos victims should
have to surrender any of their damages in legal costs.
"We urge you to make an exception for those who suffer so badly
and are completely faultless."
The Mirror's Asbestos Timebomb campaign is calling for better
protection and faster compensation for asbestos victims.
A Ministry of Justice spokesman said: "Valid cases will still be
able to be pursued.
"There will be a 10% increase in damages awarded to claimants such
as those suffering from asbestosis.
"Under our proposals claimants will not generally have to pay the
other side's costs if their claim fails so they will not need to
take out indemnity insurance."
ASBESTOS UPDATE: New Zealanders Secure With NDZF Fibro Management
-----------------------------------------------------------------
Shane Cowlishaw of The Dominion News, citing a report, relates
that asbestos-lined Defence Force ammunition dumps that could
spread toxic dust across nearby homes and a school need to be
fixed as soon as possible.
The Management of Asbestos in the NZDF report, prepared by the
Defence Ministry in June last year but made public on Feb. 27,
identified a risk of the release of asbestos fibers into the air
in the case of fire at several buildings across New Zealand,
including the Kauri Point ammunition storage facility in Auckland.
The site, which is surrounded by bush and close to a primary
school and the suburb of Chatswood, contains storehouses with
asbestos roofing. Cladding could explode and send a cloud of
fibers into the air that could be "widely dispersed" over the
residential area.
The report recommended removing the asbestos immediately in spite
of the existence of a safety plan between the Defence Force and
Fire Service.
"Despite the mitigating steps taken by the Armament Depot, we
think that the risk of asbestos dispersal should an explosive
storehouse at Kauri Point be damaged through an explosion should
be removed. The cost of remediation, both in environmental and
health costs, and reputational damage, may well be far greater
than the cost of replacing asbestos cladding."
There were also many other Defence Force buildings across New
Zealand that contained asbestos, including the Trentham, Linton
and Waiouru army camps, which could also pose a danger to
communities in the event of a fire.
The report said that policies in place within the force regarding
the use and management of asbestos were appropriate.
The chief of the Defence Force, Lieutenant General Rhys Jones,
said that since the report a $7 million upgrade to Kauri Point had
been announced that would replace all storehouses by 2014.
In the interim, explosives had been removed from 29 of the
storehouses, starting with those closest to the residential areas.
Quotations were being sought to remove the asbestos as quickly as
possible.
"The New Zealand Defence Force accepts the report's
recommendations and a number of actions have been taken, including
measures to improve the identification and recording of items
containing asbestos, utilizing existing New Zealand Defence Force
linkages with Australian Defence Force asbestos experts."
The Defence Force did not respond to a request for a full list of
asbestos buildings or further questions about costs involved.
Kauri Point residents spoken to by The Dominion Post were unaware
of the asbestos risk, but were not worried.
Chelsea Primary School principal Sue Mulcahy, whose school is
across the road from the depot, said it would have to be a huge
explosion with a strong prevailing westerly wind to affect them.
"We were more concerned if the ammo dump went up that we would be
in the firing line."
She did not know about the asbestos but said the community had a
good relationship with the Defence Force, which would have warned
residents if there was a risk.
Paul Ninness, who had lived on nearby Onetaunga St. for 30 years,
said he had no problem with the asbestos. "I think the
probability is that the volcano here might blow up before that
happens."
ASBESTOS UPDATE: NED Director Assures Safety of NZ Water Supply
---------------------------------------------------------------
Radio New Zealand International reports that the director of the
Niue Environment Department, Sauni Togatule, says the precautions
planned for the burying of asbestos on the island exceed
requirements in New Zealand.
Niue has been struggling for years to clear asbestos waste and has
decided, in principle, to bury it.
There are concerns this could threaten the water lens under the
island but Mr. Togatule says an Environmental Impact Assessment is
looking at that issue. He says they are planning substantial
efforts to contain the asbestos to ensure it doesn't affect the
water supply.
"We are actually looking at lining the bunker with approved
polyethylene plastic and putting a cap on top once that is
finished. We are also looking at the other option of a concrete
bunker, and that will have a final decision at the end of the
week, pending the consultation with the general public on
Feb. 29."
ASBESTOS UPDATE: SCC's Failure to Inform Parents Creates Stir
-------------------------------------------------------------
The Leatherhead Advertiser at thisissurreytoday.co.uk reports that
a concerned parent is demanding answers after asbestos was found
at St. Martin's Primary School in Dorking during half term.
Surrey County Council (SCC) says it knew some asbestos was present
prior to recent work to build two classrooms and a playground, but
more was found while improvement work was being carried out in the
main building. SCC conducted thorough safety checks and found no
health risk.
One parent, who did not want to be named, said: "I was at the
school when the discovery was made. Parts of the building were on
lockdown and tents were put up to block off areas.
"We then received an e-mail from the head teacher on Sunday night
saying that everything was fine, which I just found hard to
believe.
"There was no explanation as to the condition of the building,
what precautions had been put in place and no advice to parents,
so we are all very concerned.
"It doesn't seem right."
The school reopened as normal on Feb. 20 following the half-term
break.
The concerned parent told the Advertiser she has spoken to other
people whose children attend the school, and many expressed
concern.
She added: "Parents should have been called in straight away and
given a seminar or something by the county council or an expert,
telling us exactly what was going on.
"I love the school. St Martin's is a great school but at the same
time parents have been put in a situation where we are sending our
children to school, where they should be safe, yet we do not have
enough information to give us peace of mind."
But SCC, which is responsible for Surrey's schools, stressed that
there is no health risk at the Ranmore Road school.
A spokeswoman said: "We understand that asbestos is a very emotive
and alarming issue, but we have carried out air tests in the parts
of the school that are to be used and all tests have come back
negative for the presence of asbestos fibers.
"In accordance with our procedures, we will continue to monitor
the situation.
"SCC would not allow the school to remain open if there were a
present risk to the students or staff."
Speaking on Feb. 21, executive head teacher Jane Gorecka told the
Advertiser: "The work at St. Martin's has been led by SCC, which
has been actively supporting the school since the discovery of
asbestos-containing materials.
"The council's head of strategic risk management was at the school
this morning and has spoken to parents and to staff personally.
"A briefing letter has gone out to all parents today and a meeting
for parents has been planned for later in the week. Obviously it
is the safety of the children that is at the centre of our
thinking as we work together to resolve this problem as quickly as
possible."
Asbestos was widely used as a building material from the 1950s
until the mid-1980s. Breathing in asbestos fibres can lead to
fatal lung conditions.
ASBESTOS UPDATE: 86 Mesothelioma Deaths in Lancashire in 5yrs
-------------------------------------------------------------
Sam Chadderton of the Lancashire Telegraph reports that there
have been 86 asbestos related deaths in East Lancashire in the
last five years, according to new figures.
Statistics show that Blackburn with Darwen has a higher than
average death rate from mesothelioma, a terminal cancer of the
lung wall caused by exposure to asbestos.
The not for profit Association of Personal Injury Lawyers (APIL)
obtained the number of deaths from 2006 to 2010 and have warned
that the alarming figures will continue to rise.
Blackburn with Darwen had 23 deaths, the equivalent to three
deaths in 100,000 people. The average for England and Wales
during the same period was 2.5.
In the same time, there were 17 deaths in Chorley, 13 in Pendle,
nine in Burnley, nine in Hyndburn, nine in the Ribble Valley, and
six in Rossendale.
Several local asbestos-related deaths have been linked to working
at the Garden Street gas mask factory during the war and the
Huncoat Power Station.
APIL president David Bott said: "More people die of mesothelioma
in Blackburn with Darwen per head of the population than in most
other parts of the country.
"This is bad enough, but the number of men dying from this disease
is expected to peak during the next five years and what many
people don't realize is that hundreds of sufferers across the UK
cannot get the compensation they need to help them through the
last days of their life.
"What is needed is for the Government to bring forward proposals
for a fund of last resort which would act as a safety net for
injured workers who are otherwise unable to pursue the justice
they deserve."
Many workers who have developed mesothelioma are sometimes unable
to pursue a claim for damages because they can no longer trace the
employer who exposed them to asbestos, or the employer's insurance
company.
This is because the onset of symptoms often comes decades after a
worker has inhaled asbestos fibers, during which time employers go
out of business and insurance documents can be lost or destroyed.
"The Government proposed to set up a fund of last resort shortly
before the general election, but 18 months has now passed and
nothing has been heard about it since," added Mr. Bott.
"In the meantime, sick and dying workers who are prevented from
bringing valid cases are left effectively subsidizing insurance
companies.
"This unacceptable situation simply cannot go on. Something must
be done before more dying victims of mesothelioma go
uncompensated.
"A similar fund exists for victims injured by uninsured drivers.
The Government must do the right thing and introduce one for
injured workers."
ASBESTOS UPDATE: Evergreen's Fine Dropped From $25,450 to $3,450
----------------------------------------------------------------
Dee Riggs of The Wenatchee World reports that the state has upheld
a ruling that a Cashmere company did not properly remove asbestos
from Solomon's Porch youth center in downtown Wenatchee but has
reduced the company's fine.
The fine was reduced from $25,450 to $3,450 because the company
has made a good faith effort to improve its practices, said Hector
Castro, a spokesman for the state Labor & Industries.
Evergreen Asbestos Solutions had appealed the 14 violations that
state officials considered serious, Castro said. A state L&I
hearings officer upheld the violations earlier in February.
Castro said his agency was concerned for the safety of workers,
who may have been exposed to the cancer-causing asbestos. He said
he did not know if there would be any danger to nonworkers who
used the center right after the asbestos was removed, or to anyone
using the center today.
The May asbestos removal was done to prepare for a youth shelter
in the lower level of the building at 17 S. Mission St. The work
included creating a new stairwell to that lower level. Desiree
Knemeyer, program director at the youth center, said in January
that the center was closed during the asbestos removal work.
ASBESTOS UPDATE: Woman Exposed to Fibro on Husband's Clothes Dies
-----------------------------------------------------------------
The Derby Telegraph reports that a wife who washed her husband's
asbestos-covered work clothes for a decade died because she was
exposed to the deadly dust -- even though he was not affected.
Every week, Jill Bolstridge would shake off the dirt from overalls
worn by her husband James -- who worked at Derby engineering firm
S Robinson and Sons -- before putting them in the washing machine.
The 56-year-old had been in good health until last May, when she
started becoming out of breath and was given an inhaler, an
inquest heard.
Doctors confirmed she was suffering from a malignant mesothelioma
of the pleura -- an asbestos-related cancer affecting the lining
of the lungs -- and she had major surgery.
But Mrs. Bolstridge, of Athol Close, Sinfin, died in October, two
days after her family helped her put together a statement about
her condition -- which was read out at the inquest.
After the hearing, her daughter Carla, 22, paid tribute to her
mother. She said: "My mum was a loving, affectionate, warm and a
beautifully-giving woman who was always willing to put others
before her.
"She was strong role-model to her sons and daughters and was
highly dedicated as a carer to one of her sons, who has severe
special needs.
"She was also regularly helping out her own mum, was keen on
sewing and knitting and had a love for animals.
"My mum was greatly loved and is missed by her family and
friends."
She also had sons Paul, 38, Earl, 34, and Natalya, 21.
South Derbyshire Coroner's Court heard how Mr. Bolstridge started
working at the construction company, off Ascot Drive, in 1981. He
told the inquest his job initially included sweeping up in the
asbestos yard and moving asbestos sheeting.
He was later promoted and worked on a press indoors but his work
bench was near doors to the yard and, he said, dust would blow
through and settle on his bench.
He described how early in his career he would go to work in his
old clothes before he was later supplied with a one-piece overall.
Mr. Bolstridge, 62, said: "There was no cleaning system. It was a
matter of taking them home and my wife used to clean them for me."
In later years, he said, this was changed so that overalls were
sent to cleaners in Nottingham but, for 10 years, his wife washed
them.
"She shook them to get as much of the dust off as possible before
putting them in the washing machine," he recalled.
The inquest also heard how Mr. Bolstridge would take off his
clothes in the kitchen and Mrs. Bolstridge would shake them before
putting them in the washer.
In her statement, which was read out at the court, Mrs. Bolstridge
said the clothes were "dirty and dusty".
She said: "I could easily have inhaled some of the dust from Jim's
working clothes.
"Thinking about this in detail now, my face would not be far away
from the clothes I was shaking. I did this week in, week out, for
years."
She also said in her statement how she had been out shopping one
day last May when she was suddenly out of breath. She said she
"panicked" and "had to sit down".
Despite being given an inhaler, her condition became worse and,
following a chest x-ray, fluid was discovered on her lungs.
She said: "I was warned right from the outset it could be
something sinister."
Doctors asked her if she had worked with asbestos and she told
them how she had washed her husband's work clothes, before she
received the diagnosis of malignant mesothelioma.
Mrs. Bolstridge added: "I had never heard of the condition
before."
After describing the operation she underwent two months later on
her chest, she said in her statement: "Hopefully, the surgeon has
extended my life."
She died three months later at Royal Derby Hospital.
Mrs. Bolstridge was born in Derby and left school at the age of
17. Her father, who was Polish, worked in mines in France.
In 1972, she joined Leys Malleable Castings, in Derby, as a
purchasing clerk.
She met her husband in the same year and they first lived together
in Byron Street, Derby. Mrs. Bolstridge left work when pregnant
with her first child.
Dr. Andrew Hitchcock, consultant pathologist at the Royal Derby
Hospital, said a postmortem examination revealed Mrs. Bolstridge's
right lung was incased in scar tissue and there was a pleural-
based tumour "in keeping with malignant mesothelioma".
When asked if the cause of her death was in keeping with it being
asbestos-related, he said: "Yes".
Assistant deputy coroner Paul McCandless said it was of "extreme
importance" he should record a verdict of death due to the
industrial disease of malignant mesothelioma of the pleura.
He said: "Even though this is as a result of secondary exposure,
it is an opportunity for such a verdict."
He added that recording a verdict of accidental death would not
"properly convey the importance" of the background to Mrs.
Bolstridge's death, while the verdict of misadventure would not
accurately describe her normal routine.
ASBESTOS UPDATE: 28 Mesothelioma Deaths in Sedgemoor in 4yrs
------------------------------------------------------------
This is The West Country News reports that Sedgemoor has an above
the national average death rate for an asbestos related cancer,
according to figures by a campaign group.
The not-for-profit Association of Personal Injury Lawyers (APIL)
show that from 2006 to the end of 2010, mesothelioma, a terminal
cancer of the lung wall, was recorded as the underlying cause of
28 deaths in the area.
It is the equivalent to 2.9 deaths in 100,000 people. The average
for England and Wales during the same period was 2.5.
APIL president David Bott said: "More people die of mesothelioma
in Sedgemoor per head of the population than in most other parts
of the country.
"This is bad enough, but the number of men dying from this disease
is expected to peak during the next five years and what many
people don't realize is that hundreds of sufferers across the UK
cannot get the compensation they need to help them through the
last days of their life."
He has called for a Government fund to help sufferers get
compensation.
He said many workers who have developed mesothelioma are sometimes
unable to pursue a claim for damages because they can no longer
trace the employer who exposed them to asbestos, or the employer's
insurance company.
A Department for Work Pensions spokesperson said: "The issues
raised by the consultation in the Employers' Liability Insurance
Bureau are complex and we are in active discussions with
stakeholders to make sure we get this right.
"We are still carefully considering all the issues and will bring
forward our proposals in due course."
ASBESTOS UPDATE: Ohio Ct. Allows Astar Claims to Proceed to Trial
-----------------------------------------------------------------
Astar Abatement, Inc., sued Cincinnati School District Board of
Education and Pinnacle Environmental Consultants, Inc., to recover
payment and damages arising from asbestos abatement services it
provided for CPS. Astar asserts breach of contract and unjust
enrichment claims against CPS and a negligence claim against
Pinnacle.
Both Defendants moved to dismiss the claims against them pursuant
to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
In a Feb. 14, 2012 order, Chief Judge Susan J. Dlott of the U.S.
District Court for the Southern District of Ohio, Western
Division, denied the Defendants' motion and allowed each of
Astar's claims to proceed to litigation. The Court found that,
with respect to the breach of contract claims, the language in the
contract between Astar and CPS is ambiguous that the Court may
need to rely on extrinsic evidence to determine the intent of the
parties' regarding the identity of the persons who can be sued as
parties to the Contract.
With regards to the unjust enrichment claim, the Court held that
if the State of Ohio is the contracting party, but CPS the
beneficiary of the work provided by Astar, then circumstances may
exist to support an unjust enrichment claim against a non-
contracting party who benefits from the uncompensated work of one
of the parties to the contract."
Judge Dlott also allowed Astar's negligence claim against Pinnacle
holding that Astar's allegation that Pinnacle served as a design
professional and agreed to properly design, prepare, administer
and oversee the asbestos abatement work as well as properly
inspect and approve the work, and also to recommend payment and
compensation, and to review and approve change order requests, all
in a professional and unbiased manner, is sufficient to state a
negligence claim against Pinnacle which falls within the excessive
control exception to the economic-loss doctrine.
The case is Astar Abatement, Inc., v. Cincinnati City School
District Board of Education, et al., No. 1:11-cv-587 (S.D. Ohio).
A copy of Judge Dlott's Order is available at http://is.gd/nmisHW
from Leagle.com.
ASBESTOS UPDATE: Pa. Ct. Dismisses Claims vs. Foster Wheeler
------------------------------------------------------------
Foster Wheeler Corporation moved for summary judgment in
19 cases originating in North Dakota, all of which are part of a
consolidated asbestos products liability multidistrict litigation
pending in the U.S. District Court for the Eastern District of
Pennsylvania. Foster Wheeler asserted insufficient evidence as
grounds for dismissal.
In a Feb. 14, 2012 memorandum, Judge Eduardo C. Robreno of the
U.S. District Court for the Eastern District of Pennsylvania
granted summary judgment in favor of Foster Wheeler after finding
that there is no evidence that any decedent was exposed to
asbestos from a product of -- or as a result of work performed by
-- Foster Wheeler in the so-called Amoco refinery in Mandan, North
Dakota.
The case is Various v. Various, No. MDL 875 (E.D. Pa.). A copy of
Judge Robreno's Decision is available at http://is.gd/HTLoG5from
Leagle.com.
ASBESTOS UPDATE: Fla. Ct. Junks Celotex PD Panel's Appeal on Fees
-----------------------------------------------------------------
In the chapter 11 bankruptcy of The Celotex Corporation, the
Property Damage Advisory Committee appealed to the District Court
from the Bankruptcy Court's March 24, 2011 Order denying the
Committee's Motion to Compel Payment of Counsel's Fees and July 8,
2011 Order denying the Committee's Motion for Reconsideration of
the March 24, 2011 Order.
In a Feb. 3, 2012 order, Judge James S. Moody, Jr., of the U.S.
District Court for the Middle District of Florida, Tampa Division,
affirmed the Bankruptcy Court Orders finding that the Orders are
thorough and well reasoned.
The case before the District Court is THE PROPERTY DAMAGE ADVISORY
COMMITTEE, Appellant, v. THE CELOTEX ASBESTOS SETTLEMENT TRUST,
Appellee, No. 8:11-cv-2223-JSM (M.D. Fla.). A copy of Judge
Moody's Decision is available at http://is.gd/L0BmVHfrom
Leagle.com.
The Property Damage Advisory Committee is represented by Charles
Withers Throckmorton, Esq., and David L. Rosendorf, Esq. --
cwt@kttlaw.com and dlr@kttlaw.com -- at Kozyak, Tropin &
Throckmorton, P.A.
The Celotex Asbestos Settlement Trust is represented by Jeffrey
Wayne Warren, Esq. -- jwarren@bushross.com -- at Bush Ross, PA;
and Kevin E. Irwin, Esq. -- kirwin@kmklaw.com -- at Keating,
Muething & Klekamp.
About Celotex Corp.
The Celotex Corporation manufactured, marketed, and distributed
building products. Carey Canada Inc. mined asbestos until it
ceased operations in 1986. Celotex and Carey Canada sought
chapter 11 protection (Bankr. M.D. Fla. Case No. 90-10016) on
Oct. 12, 1990. At the time of the filing, Celotex and Carey
Canada had been named as defendants in thousands of lawsuits filed
by Asbestos Personal Injury Claimants, and in hundreds of lawsuits
filed by Asbestos Property Damage Claimants. On Dec. 6, 1996, the
Bankruptcy Court entered an Order Confirming the Modified Joint
Plan of Reorganization for Celotex and Carey Canada. A principal
feature of the confirmed Plan was the creation of the Asbestos
Settlement Trust under 11 U.S.C. Sec. 524(g) "to address,
liquidate, resolve, and disallow or allow and pay Asbestos Claims,
which will operate in accordance with the Asbestos Claims
Resolution Procedures."
ASBESTOS UPDATE: Mich. Ct. Sets Aside Hayes' Appraisal Request
--------------------------------------------------------------
Homeowners Reginald and Cassandra Hayes allege that Liberty Mutual
Group Inc. was obligated to pay for their temporary living
arrangements while their asbestos-contaminated home is being
repaired. Liberty Mutual disputes that the homeowners are
entitled to receive benefits beyond the 12 consecutive months
following the date of loss and also filed a Counterclaim seeking a
declaration that it is entitled to rescind the homeowners'
insurance policy on the basis of material misrepresentations made
in the Policy Application. On January 20, 2012, the homeowners
filed a motion to compel an appraisal as to the amount of
loss/damage to their home.
In a Feb. 17, 2012 opinion, Magistrate Judge Laurie J. Michelson
of the U.S. District Court for the Eastern District of Michigan,
Southern Division, denied the homeowners' Motion without prejudice
pending a ruling on the existence and scope of the insurance
coverage. The Magistrate Judge said the coverage issues and
disputes should be resolved prior to compelling an appraisal.
The case is Hayes v. Liberty Mutual Group Inc., Case No. 11-15520
(E.D. Mich.). A copy of Magistrate Judge Michelson's Decision is
available at http://is.gd/Mb0GaGfrom Leagle.com.
ASBESTOS UPDATE: Del. Super. Ct. Clarifies File-Closing Protocol
----------------------------------------------------------------
Judge Peggy L. Ableman of the Superior Court of Delaware, New
Castle County, made a response, dated Feb. 20, 2012, to the
Delaware Supreme Court following its second remand to the Superior
Court for the purpose of clarifying the Court's dismissal
procedures in connection with the large volume of cases that
comprise its asbestos docket.
Judge Ableman explains that the Superior Court implemented a file-
closing procedure because of the steadily increasing volume of
asbestos cases in their dockets. The file-closing procedures has
been in effect since January 2007, and, according to Judge
Ableman, has worked remarkably well, and has never been challenged
until recently when the Jacobs and Crumplar firm wrote a letter
objecting to the procedure on December 22, 2011.
"The importance of certainty and clarity with regard to dismissing
the asbestos cases and of the entry of an express final Order
cannot be underestimated. Given the breadth of the Delaware
asbestos docket, unimaginable chaos would result if plaintiffs
were permitted to keep these cases open until they saw fit to
close them, not to mention the potential for the precise
difficulties that have arisen in this appeal," Judge Ableman says.
In response to the Supreme Court's inquiries, the Superior Court
pointed out that:
(a) There is a specific procedure in place for the dismissal of
multiple defendants and the issuance of final, appealable
Orders in asbestos litigation.
(b) The procedure was instituted in January 2007.
(c) The procedure does not deviate from practice as it has been
conducted since January 2007.
(d) The practice employed in the case handled by the Jacobs and
Crumplar firm has been the same since January 2007 and has
not been modified since.
(e) Asbestos counsel, including Jacobs and Crumplar, were
notified in 2006 of the change, were invited to participate
in a hearing before the change was implemented,
participated at the hearing, and have been operating under
this procedure for more than five years without objection
until the issue of the timeliness of this appeal was
presented.
The case is ELIZABETH PLUMMER, individually and as Executrix of
the Estate of EDMOND PLUMMER, SR., deceased, and EDMOND PLUMMER,
JR., JOHN PLUMMER and JAMES PLUMMER, as surviving children of
EDMOND PLUMMER, SR., deceased, Plaintiffs Below-Appellants, v.
R.T. VANDERBILT COMPANY, INC., Defendant Below-Appellee, C.A. No.
08C-08-247-ASB, Supreme Court No. 482, 2011 (Del. Super. Ct.). A
copy of Judge Ableman's reply is available at http://is.gd/JdrRLp
from Leagle.com.
ASBESTOS UPDATE: Pa. Supreme Court Takes Up "Two-Disease" Rule
--------------------------------------------------------------
In the appellate case, HERBERT L. DALEY AND EVELYN DALEY, H/W,
Appellees v. A.W. CHESTERTON, INC. AND U.S. SUPPLY COMPANY AND
DURO-DYNE CORPORATION (APPEAL OF: U.S. SUPPLY COMPANY AND DURO-
DYNE CORPORATION), No. 27 EAP 201, the Supreme Court of
Pennsylvania, Eastern District, is asked to consider whether the
separate disease rule, which also has been referred to as the
"two-disease" rule, allows an individual to bring separate
lawsuits for more than one malignant disease which allegedly
resulted from the same asbestos exposure. "It does," the Supreme
Court of Pennsylvania concluded and, accordingly, affirmed the
order of the Superior Court, which reversed the trial court's
grant of summary judgment in favor of appellants U.S. Supply Co.
and Duro-Dyne Corp.
In a Feb. 21, 2012 opinion, the Supreme Court explained that the
separate disease rule, as adopted in Pennsylvania, allows a
plaintiff to file an action for a malignant asbestos-related
disease, even if he previously filed an action for a different
malignant asbestos-related disease, provided the second or
subsequent action is based on a separate and distinct disease
which was not known to plaintiff at the time of his first action,
and is filed within the applicable statute of limitations period.
A copy of the Feb. 21 Opinion is available at http://is.gd/zuchkX
from Leagle.com.
ASBESTOS UPDATE: Employer Has No Duty in Take Home Exposure Case
----------------------------------------------------------------
Janine McCoy, wife of Marvin McCoy, was diagnosed with
mesothelioma in 2010 and alleges it was caused by laundering her
husband's work clothes. Mr. McCoy, between 1974 and 1983, cut
asbestos-cement board creating asbestos-containing clouds of dust.
This is a take home asbestos exposure case in which Pennsylvania
law must be applied. At issue on this case is whether, under
Pennsylvania law, a premises owner/employer owes a duty to its
employee's spouse for take home asbestos exposure.
In a Feb. 21, 2012 memorandum opinion, Judge John A. Parkings,
Jr., of the Superior Court of Delaware, New Castle County, granted
the Defendants' motion for summary judgment holdings that
relationship analysis, consequence of imposing a duty, and overall
public policy favor a finding of no duty and social utility
analysis and foreseeability analysis do not tip the scale in
either direction.
The Court finds the relationship analysis the most persuasive
factor. In weighing the factors as a whole the scale tips in
favor of no duty existing, Judge Parkings held. Therefore, the
court finds under Pennsylvania law an employer/premises owner does
not owe a duty to the spouse of an employee in the take homes
asbestos exposure context.
The case is In re Asbestos Litigation: Janine McCoy and Marvin
McCoy Limited to: PolyVision Corp., C.A. No. N10C-04-203 ASB (Del.
Super. Ct.). A copy of Judge Parkings' Decision is available at
http://is.gd/GmvroGfrom Leagle.com.
ASBESTOS UPDATE: Del. Ct. Allows Suit v. Pneumo Abex to Proceed
---------------------------------------------------------------
Donald Bruce alleges that he was exposed to asbestos while working
in a variety of jobs during his career. He said he worked at
three gas stations in the 1960's, when he was exposed to asbestos
dust from Pneumo Abex LLC's brakes at those stations. Abex argues
there is no evidence in the record that Mr. Bruce was exposed to
asbestos from Abex brakes and, even if he was, it was not to a
sufficient degree to survive summary judgment under Massachusetts
law. The question before the court is whether a reasonable jury
could find that Mr. Bruce was exposed to Abex's asbestos
containing products sufficient to meet the Massachusetts'
standard.
In a Feb. 21, 2012 memorandum opinion, Judge John A. Parkings,
Jr., of the Superior Court of Delaware, New Castle County, denied
Abex's motion for summary judgment after finding that Mr. Bruce
has shown he was exposed to asbestos dust from Abex's brakes to a
sufficient amount to meet the Massachusetts standard.
The case is In re Asbestos Litigation. Donald Bruce Limited to:
Pneumo Abex, LLC, C.A. No. N10C-01-196 ASB (Del. Super. Ct.). A
copy of Judge Parkings' Decision is available at
http://is.gd/CKkb9vfrom Leagle.com.
Joseph J. Rhoades, Esq., and Stephen T. Morrow, Esq., at the Law
Office of Joseph J. Rhoades, in Wilmington, Delaware, serve as
counsel for Donald Bruce.
C. Scott Reese, Esq., and Christopher H. Lee, Esq. --
sreese@coochtaylor.com and clee@coochtaylor.com -- at Cooch and
Taylor, Wilmington, Delaware, represent Pneumo Abex LLC.
ASBESTOS UPDATE: Pa. Ct. Allows GRC Suit to Proceed to Trial
------------------------------------------------------------
General Refractories Company, a manufacturer and supplier of
asbestos-containing products, sued all of its insurance carriers
for declaration of excess liability insurance coverage for
asbestos-related claims. GRC is a defendant in numerous asbestos-
related suits throughout the United States. The insurance
policies were issued between 1979 and 1985. GRC sought partial
summary judgment asserting that the exclusions were not submitted
to and formally approved by the Insurance Commissioner as required
by Pennsylvania's insurance laws -- in particular 40 P.S. Sec.
477b.
In a Feb. 22, 2012 memorandum, Judge Edmund V. Ludwig of the
United States District Court for the Eastern District of
Pennsylvania denied GRC's motion for summary judgment and the
defendants' cross-motions for summary judgment.
Judge Ludwig held that summary judgment as a matter of law is not
appropriate pointing out that the issues in the case present mixed
questions of fact and law, which will turn primarily on the
credibility of the parties' experts and the factual foundation for
their opinions.
The case is General Refractories Company v. First State Insurance
Co., Civil Action No. 04-3509 (E.D. Pa.). A copy of Judge
Ludwig's Decision is available at http://is.gd/pnxdkofrom
Leagle.com.
ASBESTOS UPDATE: Md. Ct. Allows Discovery on Bankruptcy Trusts
--------------------------------------------------------------
A series of objections were filed to subpoenas issued by National
Union Fire Insurance Company of Pittsburgh, PA and American Home
Assurance Company. The subpoenas seek information from non-party
bankruptcy trusts and claim processing facilities about claims
submitted by individuals who also made claims to the Insured, the
Porter Hayden Bodily Injury Trust.
On April 19, 2011, victims of asbestos-related diseases
represented by the Law Offices of Peter G. Angelos and Weitz &
Luxenburg filed a Joint Objection to Disclosure of Certain Claim
Information Filed with Certain Third Party Bankruptcy Trusts,
arguing the subpoenas should be quashed in their entirety. Since
then, victims of asbestos-related diseases represented by various
attorneys have filed motions for joinder, incorporating and
joining the objections set forth by Weitz & Luxemburg and the Law
Offices of Peter G. Angelos in their initial motion, as well as a
subsequent motion objecting to another set of the Insurers'
subpoenas on the same grounds. The Insurers responded to these
objections.
On Dec. 15, 2011, the U.S. District Court for the District of
Maryland held a hearing on the motions to quash the subpoenas.
In a Feb. 24, 2012 memorandum, Maryland District Judge Catherine
C. Blake denied the Objectors' motions to quash the subpoenas.
Discovery will continue subject to the limitations previously set
forth in the stipulated protective orders, and the Insurers will
bear the costs of production.
The Court found that the information sought in the Insurers'
subpoenas meets the standard for relevance set forth by Rule 26 of
the Federal Rules of Civil Procedure. To the extent the requested
material is sensitive, the Court further found that the protective
measures already in place sufficiently address the Objectors'
privacy concerns. Moreover, the Court related that at the Dec.
15, 2011 hearing, the Insurers represented to the Court that
litigation would move forward without delay on account of the
discovery.
The case is National Union Fire Insurance Company of Pittsburgh,
PA v. Porter Hayden Company, No. CCB-03-3408 (D. Md.). A copy of
Judge Blake's Decision is available at http://is.gd/gH18elfrom
Leagle.com.
Other entities and asbestos trusts that appeared in the case are:
Manville Personal Injury Settlement Trust, as Interested Party,
represented by Emily A. Stubbs, Esq. -- estubbs@fklaw.com -- at
Friedman Kaplan Seiler and Adelman LLP; and Lisa Cresci
McLaughlin, Esq., at Phillips Goldman and Spence PA.
C.E. Thurston & Sons, Inc. Asbestos Trust, as Interested Party,
represented by Emily A Stubbs, Esq., Friedman Kaplan Seiler and
Adelman LLP, and Lisa Cresci McLaughlin, Esq., Phillips Goldman
and Spence PA.
Babcock & Wilcox Company Asbestos Personal Injury Trust, as
Interested Party, represented by Robert W. Biddle, Esq. --
biddle@nathanslaw.com -- at Nathans and Biddle LLP; and David C.
Austin, Esq., and Stephen M. Juris, Esq. -- daustin@maglaw.com and
sjuris@maglaw.com -- at Morvillo Abramowitz Grand Iason Anello and
Bohrer PC.
Nathans and Biddle; and Morvillo Abramowitz also represent:
-- Celotex Asbestos Settlement Trust,
-- DII Industries LLC Asbestos PI Trust,
-- Owens Corning/Fibreboard Asbestos Personal Injury Trust,
-- United States Gypsum Asbestos Personal Injury Settlement
Trust,
-- Armstrong World Industries, Inc., and
-- Armstrong World Industries, Inc. Asbestos Personal Injury
Settlement Trust
Lynda A. Bennett, Esq. -- lbennett@lowenstein.com -- at Lowenstein
Sandler PC, represents:
-- ACandS Asbestos Settlement Trust,
-- ARTRA 524(g) Asbestos Trust,
-- Burns & Roe Asbestos Personal Injury Trust,
-- HK Porter Asbestos Trust,
-- Kaiser Asbestos Personal Injury Trust,
-- Combustion Engineering 534(g) Asbestos PI Trust, and
-- Plibrico 534(g) Asbestos Trust
Porter Hayden was an industrial and commercial insulation
contractor operating in the Mid-Atlantic states from the 1920s to
the late 1980s. Until 1973, some of the insulation materials
handled, sold or distributed by Porter Hayden contained asbestos.
In 2000, the Coverage Action was filed, seeking to determine the
extent of any obligation on the part of the Insurers to defend and
indemnify Porter Hayden for its asbestos bodily injury
liabilities. In 2003, Porter Hayden filed a petition in
bankruptcy and pursued a chapter 11 reorganization with a
channeling injunction issued under 11 U.S.C. Sec. 524(g). Porter
Hayden's reorganization plan was confirmed in 2006, and all of its
non-liquidated asbestos-related bodily injury liabilities,
existing or future, were channeled to the Porter Hayden Bodily
Injury Trust.
ASBESTOS UPDATE: Supreme Court Cites 1926 Ruling in LIA Case
------------------------------------------------------------
In an opinion dated Feb. 29, 2012, the Hon. Justice Clarence
Thomas of the U.S. Supreme Court agreed with the U.S. Court of
Appeals for the Third Circuit that the state law tort claims for
defective design and failure to warn asserted by Gloria Gail
Kurns, as executrix of the estate of George Corson, deceased, et
al., fall within the field pre-empted by the Locomotive Inspection
Act, as that field was defined by the Supreme Court's decision in
Napier v. Atlantic Coast Line R. Co., 272 U.S. 605 (1926).
George Corson and his wife filed a lawsuit in Pennsylvania state
court against 59 defendants, including Railroad Friction Products
Corporation and its successor-in-interest Viad Corp. The Corsons
alleged that RFPC distributed locomotive brakeshoes containing
asbestos and that Mr. Corson handled this equipment resulting to
him being exposed to asbestos. Mr. Corson died of mesothelioma
immediately after filing the complaint.
Petitioners suggest that Napier no longer defines the scope of the
LIA's pre-empted field because that field has been narrowed by
Federal Railroad Safety Act of 1970. The Supreme Court ruled that
petitioners' reliance on the FRSA is misplaced. The FRSA does not
alter pre-existing federal statutes on railroad safety. Because
the LIA was already in effect when the FRSA was enacted, the
Supreme Court concluded that the FRSA left the LIA, and its pre-
emptive scope as defined by Napier, intact.
Petitioners alternatively argue that their claims do not fall
within the LIA's pre-empted field, even as that field was defined
by Napier. The Supreme Court rejected the petitioners' attempt to
redefine the pre-empted field and held that because the
petitioners' common-law claims for defective design and failure to
warn "are directed to the same subject" as the LIA, Napier
dictates that they fall within the pre-empted field.
The case is Kurns v. Railroad Friction Products Corp., No. 10-879
(U.S.). A copy of the Feb. 29 Decision is available at
http://is.gd/nm38F5from Leagle.com.
*********
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