/raid1/www/Hosts/bankrupt/CAR_Public/120608.mbx
C L A S S A C T I O N R E P O R T E R
Friday, June 8, 2012, Vol. 14, No. 113
Headlines
AMERICAN EQUITY: Class Suit on Improper Sale Practices Pending
ANGLOGOLD ASHANTI: Gold Miners Set to Negotiate Silicosis Payout
ARIZONA: Faces Class Action Over Senate Bill 1070
ARBITRON INC: To Seek Court OK of Securities Class Settlement
ARDEA BIOSCIENCES: Sued Over Merger Transaction with AstraZeneca
BANK OF AMERICA: Faces Class Action Over 2008 Merrill Deal
CHICAGO, IL: Settles 2003 Anti-War Protest Class Action
CHINA-BIOTICS: Gainey & McKenna, Egleston File Class Action
COMCAST CABLE: Accused of Keeping Former Customers' Information
CUMULUS MEDIA: Still Awaits Final OK of Wage Suit Settlement
DENDREON CORP: Amended Securities Suit Dismissal Bid Pending
DEUTSCHE BANK: Sued in Hawaii Over Deceptive Trade Practice
DIRECTV LLC: Sued Over Retention of Former Customers' Information
DRIL-QUIP: Obtains Favorable Ruling in Deepwater Horizon Suit
eRESEARCH TECHNOLOGY: Faces Class Suits Over Genstar Merger Deal
ESTEE LAUDER: Sued Over Bogus Claims on "Plantscription" Product
EVENFLO INC: Recalls 35T Convertible High Chairs Due to Fall Risk
FACEBOOK INC: Berman DeValerio Files Securities Class Action
FACEBOOK INC: Zuckerberg Faces Class Action Over Insider Trading
FACEBOOK INC: Faces Another IPO-Related Class Suit in California
FIDELITY NATIONAL: Faces Class Action Over Illegal Kickbacks
FIRST HORIZON: Faces Class Action Over Mortgage "Kickbacks"
HANOVER INSURANCE: Judge Balks at Plaintiffs' Forum Shopping
HIGHER ONE: Faces Class Action Over Deceptive Bank Fees
INDIANA: Awaits Ruling in Sex Offender Social Media Ban
KV PHARMACEUTICAL: 8th Cir. Revives Securities Class Action
ORRSTOWN BANK: To "Vigorously Defend" SEPTA Securities Suit
R.J. REYNOLDS: Calloway Family Wins $75-Mil. Tobacco Damages
SUPPORT.COM INC: Defends Consumer Suit Over Software Products
TIME WARNER: Faces Suit Over Retention of Former Customers' Info
TREX CO: Defends Lawsuits in Ind., Mich., N.J. Over Mold Growth
UNITED PARCEL: Still Defends Consumer Class Suits in Canada
UNITED PARCEL: Still Defends Price-Fixing Lawsuit in New York
VIROPHARMA INC: Berger & Montague Files Class Action
WCI COMMUNITIES: Contempt Suit Survives Motion to Dismiss
Asbestos Litigation
ASBESTOS UPDATE: Hawaii Ct. Allows Appeal From Jurisdiction Order
ASBESTOS UPDATE: Pa. Ct. Junks Supplemental Testimony vs. GE
ASBESTOS UPDATE: Court Denies Bid to Dismiss Mesothelioma Suit
ASBESTOS UPDATE: Writ of Mandate Okayed in Loss of Consortium Suit
ASBESTOS UPDATE: Court Limits SPX Defendants' Motions In Limine
ASBESTOS UPDATE: Del. Ct. Denies Product Nexus Claim v. Crane Co.
ASBESTOS UPDATE: CenterPoint Energy Still Faces Exposure Suits
ASBESTOS UPDATE: Ensco Plc Still a Defendant to Exposure Suits
ASBESTOS UPDATE: AIG Unit Had $508MM Net Liability at March 31
ASBESTOS UPDATE: 3M Co. Still Defends Suits by 2,200 Claimants
ASBESTOS UPDATE: 3M Co. Had $104MM Reserves for Liabilities
ASBESTOS UPDATE: 3M Co. Records $29MM Estimate for Aero Costs
ASBESTOS UPDATE: Westinghouse Air Brake Still Faces Claims
ASBESTOS UPDATE: W.R. Grace Recorded Liability Still at $1.7BB
ASBESTOS UPDATE: CH Energy Had 1,158 Pending Cases at March 31
ASBESTOS UPDATE: Meritor's Maremont Has 21K Pending Claims
ASBESTOS UPDATE: Meritor Has $21MM Rockwell-Related Liability
ASBESTOS UPDATE: Meritor Considering Options in "Bankhead" Ruling
ASBESTOS UPDATE: Pepco Dropped From Consolidated Suit in March
ASBESTOS UPDATE: Pepco's ACE Unit Still Defends Suit in N.J.
ASBESTOS UPDATE: Ashland Had 69,000 Open Claims at March 31
ASBESTOS UPDATE: Ashland Unit Had 21,000 Open Claims at March 31
ASBESTOS UPDATE: Great Lakes Continues to Defend 37 PI Lawsuits
ASBESTOS UPDATE: 11,500 Cases Pending v. Mallinckrodt at March 31
ASBESTOS UPDATE: Brunswick Unit Faced 2,500 Suits at End 2011
ASBESTOS UPDATE: BNSF Railway Continues to Defend Exposure Claims
ASBESTOS UPDATE: ITT Corp. Had 95,682 Open Claims at March 31
ASBESTOS UPDATE: ITT Corp. Suit v. Travelers Remain Pending
ASBESTOS UPDATE: Crane Co. Had 57,398 Pending Claims at March 31
ASBESTOS UPDATE: Manitowoc Company Still a Party to Lawsuits
ASBESTOS UPDATE: IPALCO Unit Remains a "Premises Defendant"
ASBESTOS UPDATE: Parker Drilling Continues to Defend 15 Suits
ASBESTOS UPDATE: General Cable Had 29,062 Cases at March 30
ASBESTOS UPDATE: Gardner Denver Continues to Defend Suits
ASBESTOS UPDATE: Standard Motor Had 2,110 Open Cases at March 31
ASBESTOS UPDATE: Lanier Law Firm to Lead Asbestos Legal Forum
ASBESTOS UPDATE: UK Helpline Responds to Thailand's Claim
ASBESTOS UPDATE: Issues Mounts at Mount Greylock High School
ASBESTOS UPDATE: Mystery Cause of Iron Rangers Mesothelioma Probed
ASBESTOS UPDATE: Hope in Therapy and Lung-sparing Surgery Combo
ASBESTOS UPDATE: Rise in ARD Claims From The Sugar Industry Eyed
ASBESTOS UPDATE: Colorado Mom May Have Contaminated Own Children
ASBESTOS UPDATE: ACTU Head Pushes for Fibro-Free Australia by 2030
ASBESTOS UPDATE: Tonsley Park Abatement Workers Report Anomalies
ASBESTOS UPDATE: Unusual Toxic Type Delays Perry Lakes Project
ASBESTOS UPDATE: Derbyshire County Council Blamed for Mesothelioma
ASBESTOS UPDATE: Baron & Budd Shareholder Testified Against HB 477
ASBESTOS UPDATE: Ford, Lockheed Martin, 171 Others Face 8 Claims
ASBESTOS UPDATE: Court Stays $420K Verdict v. 2 McComb Attorneys
ASBESTOS UPDATE: MassDEP Cites 3 Landlords for Storing Carcinogens
ASBESTOS UPDATE: EMSL Warns of Toxic Fallout During Blazes
ASBESTOS UPDATE: Legal Watchdog Expects Bill Akin to HB477 in 2013
ASBESTOS UPDATE: Alvarado School Renovation on Hold Until May 2013
ASBESTOS UPDATE: Last Mountain Pioneer Home Clear of Hazards
ASBESTOS UPDATE: A Review on Railroad Fraud Case Decision
ASBESTOS UPDATE: Regina to Spend $66M This Year on Water Lines
ASBESTOS UPDATE: CORF Approves $96,700 for Grand Theater Abatement
*********
AMERICAN EQUITY: Class Suit on Improper Sale Practices Pending
--------------------------------------------------------------
American Equity Investment Life Holding Company continues to
defend a consolidated class action lawsuit alleging improper sales
practices, according to the Company's May 7, 2012, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended March 31, 2012.
The Company is currently a defendant in a purported class action,
McCormack, et al. v. American Equity Investment Life Insurance
Company, et al., in the U.S. District Court for the Central
District of California, Western Division and Anagnostis v.
American Equity, et al., coordinated in the Central District,
entitled, In Re: American Equity Annuity Practices and Sales
Litigation, in the U.S. District Court for the Central District of
California, Western Division (complaint filed September 7, 2005)
(the "Los Angeles Case"), involving allegations of improper sales
practices and similar claims.
The Los Angeles Case is a consolidated action involving several
lawsuits filed by individuals, and the individuals are seeking
class action status for a national class of purchasers of
annuities issued by us; however, no class has yet been certified.
The named plaintiffs in this consolidated case are Bernard
McCormack, Gust Anagnostis by and through Gary S. Anagnostis and
Robert C. Anagnostis, Regina Bush by and through Sharon Schipiour,
Lenice Mathews by and through Mary Ann Maclean and George Miller.
The allegations generally attack the suitability of sales of
deferred annuity products to persons over the age of 65. The
plaintiffs seek rescission and injunctive relief including
restitution and disgorgement of profits on behalf of all class
members under California Business & Professions Code section 17200
et seq. and Racketeer Influenced and Corrupt Organizations Act;
compensatory damages for breach of fiduciary duty and aiding and
abetting of breach of fiduciary duty; unjust enrichment and
constructive trust; and other pecuniary damages under California
Civil Code section 1750 and California Welfare & Institutions
Codes section 15600 et seq. The Company participated in mediation
sessions with plaintiffs' counsel during the second and third
quarters of 2011 and the first quarter of 2012 and potential
settlement terms continue to be discussed. However, due to (i)
the fact no class has been certified (ii) the lack of specificity
as to legal theories put forth by the plaintiffs, (iii) the lack
of specificity of the remedies sought, and (iv) the lack of any
basis on which to compute estimated compensatory and/or punitive
damages, the Company generally cannot predict what the outcome of
the pending purported class action lawsuit will be, what the
timing of the ultimate resolution of this lawsuit will be, or an
estimate and/or range of possible loss related to the pending
purported class action lawsuit. In light of the inherent
uncertainties involved in the pending purported class action
lawsuit, there can be no assurance that such litigation, or any
other pending or future litigation, will not have a material
adverse effect on the Company's business, financial condition, or
results of operations.
American Equity Investment Life Holding Company -- http://www.
http://www.american-equity.com/-- through its subsidiaries,
underwrites fixed annuity and life insurance products in the
United States and the District of Columbia. Its annuity products
include fixed index annuities and fixed rate annuities, as well as
single premium immediate annuities. Its life insurance products
comprise traditional ordinary and term, universal life, and other
interest-sensitive life insurance products. The Company was
founded in 1995 and is based in West Des Moines, Iowa.
ANGLOGOLD ASHANTI: Gold Miners Set to Negotiate Silicosis Payout
----------------------------------------------------------------
Chris Bateman, writing for South African Medical Journal, reports
that tagged as victims of "the world's biggest, longest running
industrial disaster; dwarfing Chernobyl," 10,000 known silicosis-
affected, southern African, gold miners are finally set to
negotiate a payout that could induce a painful paroxysm of
shareholder coughing across the Johannesburg Stock Exchange.
Richard Spoor, the lead lawyer who a year ago secured a landmark
Constitutional Court ruling allowing lung-diseased miners to sue
their employers for substantial damages (under common law), said
the application for certification of a class action, plus a
process for establishing liability, would come before the South
Gauteng High Court "within months."
Mr. Spoor has out-of-court settlements from asbestos mining houses
totalling R1.1 billion since 2003, all of which precluded a ruling
on the constitutionality of archaic mining legislation that in
some cases limited medical incapacity payouts to just R1,000 for
every year worked. The latest litigation is virgin legal
territory and may well bring substantial financial relief to those
injured or to relatives of those killed by mining-acquired
silicosis.
After meeting his senior advocates on April 9 this year, Mr. Spoor
told Izindaba that the final form of the application would depend
on the responses of the individual defendants, AngloGold Ashanti,
Gold Fields, Harmony Gold (South Africa's biggest gold miners),
and smaller producers, DRD Gold. "We want to discuss the process
with them. Our court application includes a recommendation to the
judge on how the matter should be dealt with. This is something
completely new and we want the mining companies' input as to
whether they think it's fair and appropriate. At the core of our
position is that if we don't deal with it on a collective basis,
people will not get justice. It's a crazy notion to think that
somebody in some remote Transkei, Lesotho or Mozambican village
can bring a civil action to recover damages-that just won't
happen; that's why a class action is appropriate."
While each individual miner will have to prove damages (via an
independent medical panel), the basic principles governing any
award will be what the South Gauteng High Court adjudicates on,
paving the way for the setting up of a Silicosis Trust from which
funds would be disbursed. Actuaries will use the best
epidemiological data to table individual company award amounts
(how many cases, of what severity, ages, life expectancy and
geographical information per respondent gold mine). Based on his
previous out-of-court settlements with asbestos mining companies
(Gencor, Hanova, Eternit, et al.) in 2003 and 2006, Mr. Spoor is
confident that the trust fund model can be sufficiently enlarged
and administered to handle what currently stands at 15-times-as-
many victims.
A 2009 collaborative study by the University of the Witwatersrand
and University College, London, estimates there to be 288,000
cases of compensable silicosis in South Africa, which would put
that unpaid liability at R10 billion in 1998 values (R27 billion
in today's values). This gives some indication of what even
lesser settlements could do to shareholder values on the
Johannesburg Stock Exchange and how the ConCourt ruling must be
focusing the minds of senior mining company executives.
Mr. Spoor said that his estimate was of "at least" 200,000 workers
needing follow-up, screening "and hopefully, treatment."
Identification of legitimate claimants is complicated by
geography, awareness and a dysfunctional public health system, but
the numbers are already growing in their thousands every year
(more than 7,500 in Lesotho and over 2,000 in the Eastern Cape at
the time of going to press). While there had been no formal
engagement of the gold mines at the time of writing, Mr. Spoor
said there was "a fair amount of sounding out-we have a consultant
encouraging thinking and discussion to create a high-level
awareness for the company to make the right decisions."
The tipping point came in March last year when Mr. Spoor asked the
Constitutional Court to declare unconstitutional a section in the
workman's compensation legislation prohibiting workers from suing
their employers. The case he used was that of a single R2.5
million claim turned down by both the High Court and the Court of
Appeal on the grounds that the State had set up a compensatory
system and that the quid pro quo was that this precluded the
possibility of civil suits. The AngloGold Ashanti miner,
Thembekile Mankayi (who died of lung disease two weeks before the
ConCourt ruling), was laid off for R16,000 (representing just over
R1,000 for every year he had worked.) His payout was made in terms
of the Occupational Diseases in Mines and Works Act (ODIMWA),
which specifically and exclusively caters for (in limited terms)
sick miners. AngloGold cited the relevant section of ODIMWA which
clearly states that compensable diseases are prohibited under the
Workman's Compensation Act. The ConCourt upheld Mr. Spoor's
contention that both laws trampled on Mankayi's common law rights.
Ironically, Cabinet resolved as far back as 1998 to re-align the
two acts, but disagreement between government and the Chamber of
Mines over who would pay the costs associated with lung-diseased
mineworkers quickly snuffed out the initiative. Government was
reluctant to carry financial responsibility for laws it had no
hand in making while the mines cried foul over potentially
carrying the financial can for mines that had stopped operating.
Spoor put it succinctly: "Basically the laws acted as a subsidy to
the industry. The real cost is borne by the workers, their
families and the public health system. The 'polluter pays'
principle should apply to occupational health -- but it doesn't."
Cape Town medical specialist in public health, Jim Te Water Naude,
one of Mr. Spoor's large team currently assessing claimants in
preparation for the South Gauteng Court application, gave some
idea of how "recruitment" might go by citing previous experience.
He said his occupational medicine panel screened 14,000 ex-
asbestos miners over the last 7 years, working mainly with rural
GPs. Numbers peaked at 3,000 people annually in 2007 before
tailing off. Some 4,000 were found to be compensable. Three per
cent of them (420) had mesothelioma which, along with lung cancer,
meant they lived on average for about a year.
The Asbestos Relief Trust (2003) and the Kgalagadi Relief Trust
(2006) paid individual miners about R280,000 for mesothelioma and
about R210,000 for lung cancer while severely lung-impaired
workers received about R60,000 (half this for moderate or mild
lung impairment.) "This new case is going to be a lot of hard
work with a whole lot of challenges, not the least of which is the
triple epidemic on the mines of HIV, TB and silicosis. In the 90s
the gold mines downsized from about 800,000 workers to 400,000 and
the triple epidemic was (more quickly) exported to where the
miners came from." Te Water Naude said the relationship between
silicosis and TB (owing to the macrophage system being overwhelmed
by small particles of crystalline silica which comes co-compounded
with gold ore) was well known.
Tina da Cruz, a legal associate of Mr. Spoor's coordinating claims
in Maseru, said she was working with the Mineworkers Development
Agency (MDA)'s Lesotho Country Office identifying potential
claimants for the class action. The MDA's experience in helping
the Asbestos Relief and Kgalagadi Relief trusts find former
asbestos miners was proving invaluable. Field teams of former
miners and lawyers created awareness among former gold miners and
their communities in all districts of Lesotho while similar teams
were working in the Bizana area of the Eastern Cape.
Te Water Naude said once claimants were found, the project's
potential for improving public health-care delivery was huge,
citing the vastly improved Kuruman postmortem service via their
efforts on behalf of asbestos victims. "Basically we introduce a
high-quality management system, making sure that we communicate
well upstream and downstream- (again, using private health-care
practitioners whom he said produced work of excellent quality in
85% of cases.) His team was by mid-to-late-April inspecting
doctors' reports of 30 lung-impaired gold miners examined in
Maseru and another 45 examined in Mthatha. The reports include
lung function, chest radiography and a clinical evaluation.
In an aside, Te Water Naude said the glaring lack of continuing
medical education in far flung towns was best illustrated by one
GP in Prieska who attended their team's talk on asbestos-related
diseases in November last year. The doctor said it was the first
time in two decades he'd seen any kind of external continuing
professional development activity.
Other exciting developments included channelling PEPFAR funding
(via a Yale University initiative) into their program to help
treat ex-miners with HIV and TB and looking further afield to "see
what there is beyond compensation; we want to use a future
settlement to bring more synergy," he added.
Mr. Spoor said the clinical work was not an attempt to duplicate
the dysfunctional state system which had no proper monitoring or
surveillance, but to complement and improve it by linking into the
statutory system. He said that a "significant" percentage of
lung-impaired miners died without being diagnosed, mainly because
of inadequate and inexpert postmortem services (cardiorespiratory
organs need harvesting and in most cases, storing and transport.)
This meant that, in the main, only the organs of those who died in
service (mostly black miners) and most white miners (with access
to facilities) were examined.
Asked whether he'd be asking the court for an order preventing or
minimizing future lung impairment, Mr. Spoor said the settlement
would have to make provision for wherever mine inadequacies were
found. Medical monitoring and surveillance and treatment,
especially for TB, were the two major issues. "This is about
holding people to account and once that's done you can expect
substantial improvements in the workplace. Silicosis is a
preventable disease. If you can kill and maim people without
consequences there's obviously no reason to stop. I must say the
State's role as policeman of safe and healthy environments has not
been much to write home about; in fact, the State has proved
itself incapable of policing the mines. The criminal justice
system is not working, so civil accountability is the only model
left to us."
Asked how long it could take to settle the class action, Mr. Spoor
said that based on his past experience, anything from 18 months to
5 years; it will all depend on the attitude of the gold mine
executives and how well they recognized the inadequacy of existing
compensation regimens and their moral obligations. "It comes down
to the CEO and the kinds of lawyers they get -this is not a game
for bluffers."
He said the role of actuaries was crucial because, if the
settlement proved inadequate, claimants could "come after me" --
which is why a senior advocate was retained exclusively to ensure
the payout mechanism and the kitty were adequate, providing him
with what was legally termed, a "comfort note."
Asked what his fee was, Mr. Spoor said it could either be built
into the overall settlement or established by agreement with
individual clients not to exceed 15% of their award. "As a point
of reference, the Gencor (asbestos) settlement was worth R450
million and my fee was R2 million for what amounted to 5 years of
work. I'm saving up for a new car," he quipped.
One of his senior legal colleagues told him that the silicosis
claim, when compared with famous historical mining claims in
Australia and the USA, the Chernobyl and Fukushima nuclear
meltdowns, and the Bhopal chemical leak in India (in terms of
numbers killed and injured) "outnumbers them all -- it's basically
the world's biggest and longest running industrial disaster."
Chris Bateman writes for the South African Medical Journal, from
where this article is adapted. The original work is licensed
under a Creative Commons Attribution-Noncommercial Works License.
ARIZONA: Faces Class Action Over Senate Bill 1070
-------------------------------------------------
Alia Beard Rau, writing for Tucson Citizen.com, reports that while
the federal government's legal challenge to Senate Bill 1070 sits
in the hands of the U.S. Supreme Court, a separate federal lawsuit
alleging the law could violate individuals' rights is creeping
forward.
U.S. District Court Judge Susan Bolton heard arguments on June 4
over whether to grant the case class-action status, which could
allow hundreds of thousands to join what has been named the
Friendly House case, after one of the plaintiffs. Plaintiffs
include immigrants, immigrant-rights groups, religious groups and
non-profit organizations.
The federal government's case-- and the looming Supreme Court
ruling -- focuses on state vs. federal authority, while this case
alleges SB 1070 could violate individuals' Fifth Amendment right
to due process, First Amendment right to free speech and 14th
Amendment right to equal protection.
SB 1070 makes it a state crime to be in the country illegally and
requires an officer engaged in a lawful stop, detention or arrest
to, when practicable, ask about a person's legal status when
reasonable suspicion exists that the person is in the U.S.
illegally.
"A lot of focus has been placed on the federal government's
lawsuit, but our case focuses on the civil-rights violations that
SB 1070 will cause," said attorney Chris Newman with the National
Day Laborer Organizing Network.
Class-action status would allow plaintiffs to join or extricate
themselves from the case as their situation warrants, said
attorney Karen Tumlin with the National Immigration Law Center.
For example, if the Supreme Court ruled that key parts of the law
should go into effect, individuals who felt their rights were
violated when they were detained or arrested under the law could
later join this lawsuit instead of filing a separate lawsuit of
their own.
"It promotes efficiency and reduces the threat of repeat
litigation," Ms. Tumlin said. "It is unclear what will continue
to happen after the Supreme Court rules, but (class-action)
certification will assure this is the case that moves forward."
Attorney Bob Henry with Snell and Wilmer, who is representing
Gov. Jan Brewer in defending SB 1070, argued against granting
class-action status. He questioned the need for it and said this
case challenges the text of SB 1070 on its face and not any real
situations of civil-rights violations under the law. Parts of the
law have gone into effect, but the most controversial parts have
not.
He alleged the plaintiffs are seeking class-action status based on
speculation that the law could go into effect and could lead to
racial profiling. He described the motion as "riddled with
ambiguity."
"Class certification is simply unnecessary," Mr. Henry argued.
"This entire statute will be implemented consistently with folks'
civil rights."
Joe Sciarrotta, general counsel for Brewer, called the request
"legally unsound and procedurally unnecessary."
"This request is a distraction from dealing with the true issue of
SB 1070's constitutionality," he said.
Attorneys for the plaintiffs are seeking class status for three
separate groups:
Anyone who is or could be subject to being stopped, detained,
arrested or questioned about their immigration status based on
their race or national origin.
Anyone who is or could be deterred from soliciting work in a
public place or from performing work.
Anyone who is or could be deterred from living, associating,
worshiping or traveling with immigrants in Arizona.
Judge Bolton took the request under advisement and will issue her
ruling at a future date. She said a ruling will not come before
the end of this month. She gave little indication during the
hearing how she may rule, although she did ask the attorneys to
explain why class-action status was needed.
Judge Bolton said that when the courts rule a law is
unconstitutional, the ruling doesn't apply only to the plaintiffs
in the lawsuit, but to everyone.
"What do we gain by having several classes certified that gives
the case more weight?" she asked.
ARBITRON INC: To Seek Court OK of Securities Class Settlement
-------------------------------------------------------------
Arbitron Inc. has yet to begin the process of seeking court
approval of a $7 million settlement to resolve a securities class
action lawsuit pending in New York, according to the Company's May
7, 2012, From 10-Q filing with the U.S. Securities and
Exchange Commission for the year ended March 31, 2012.
On April 30, 2008, Plumbers and Pipefitters Local Union No. 630
Pension-Annuity Trust Fund filed a securities class action lawsuit
in the U.S. District Court for the Southern District of New York
on behalf of a purported Class of all purchasers of Arbitron
common stock between July 19, 2007, and November 26, 2007. The
plaintiff asserts that Arbitron, Stephen B. Morris (the Company's
former Chairman, President and Chief Executive Officer), and Sean
R. Creamer (currently the Company's Executive Vice President,
Chief Operating Officer and formerly Chief Financial Officer)
violated federal securities laws. The plaintiff alleges
misrepresentations and omissions relating, among other things, to
the delay in commercialization of the Company's PPM ratings
service in November 2007, as well as stock sales during the period
by company insiders who were not named as defendants and Messrs.
Morris and Creamer. The plaintiff sought class certification,
compensatory damages plus interest and attorneys' fees, among
other remedies. On September 22, 2008, the plaintiff filed an
Amended Class Action Complaint. On November 25, 2008, Arbitron,
Mr. Morris, and Mr. Creamer each filed Motions to Dismiss the
Amended Class Action Complaint. In September 2009, the plaintiff
sought leave to file a Second Amended Class Action Complaint in
lieu of oral argument on the pending Motions to Dismiss. The
court granted leave to file a Second Amended Class Action
Complaint and denied the pending Motions to Dismiss without
prejudice. On or about October 19, 2009, the plaintiff filed a
Second Amended Class Action Complaint. Briefing on motions to
dismiss the Second Amended Class Action Complaint was completed in
March 2010. Arbitron and each of Mr. Morris and Mr. Creamer again
moved to dismiss the Second Amended Class Action Complaint. On
September 24, 2010, the Court granted Mr. Creamer's motion to
dismiss the plaintiff's claims against him, and all claims against
Mr. Creamer were dismissed with prejudice. The motions to dismiss
the Second Amended Class Action Complaint by Arbitron and Mr.
Morris were denied. Arbitron and Mr. Morris each then filed
answers denying the claims. On September 6, 2011, the Court
entered an order granting the plaintiff's motion to certify the
action as a class action, to appoint the lead plaintiff as class
representative, and to appoint its counsel as lead counsel. The
court defined the class as all purchasers of common stock of the
Company who were damaged through purchasing stock during the
period July 19, 2007 through November 26, 2007. On February 3,
2012, as a result of a mediation process overseen by an
independent mediator, the Company and its insurers agreed to
settle the case for
$7 million, which will be funded by insurance. Because this is a
class action, settlements of this type are subject to preliminary
and final review by the Court with an opportunity for class
members to respond to the proposed settlement and object if they
so desire. That process typically takes 4-5 months and has not
yet begun.
No updates were reported in the Company's latest Form 10-Q filing.
Columbia, Maryland-based Arbitron Inc. is a media and marketing
information services firm primarily serving radio, advertising
agencies, cable and broadcast television, advertisers, retailers,
out-of-home media, online media and print media.
ARDEA BIOSCIENCES: Sued Over Merger Transaction with AstraZeneca
----------------------------------------------------------------
Ardea Biosciences, Inc. is facing a class action complaint related
to its merger deal with AstraZeneca PLC, according to the
Company's May 7, 2012, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended March 31, 2012.
On April 21, 2012, the Company entered into an agreement and plan
of merger with Zeneca Inc., a subsidiary of AstraZeneca PLC and
QAM Corp., a subsidiary of Zeneca, Inc., pursuant to which
AstraZeneca will acquire the Company for $32 per share in cash,
which represents a total transaction value of approximately $1.26
billion. Pursuant to the terms of the Merger Agreement, QAM Corp.
will merge with and into the Company, and the Company will
continue as the surviving corporation and as a wholly owned
subsidiary of Zeneca. The Merger Agreement contains customary
representations, warranties and covenants, including covenants
obligating the Company to continue to conduct its business in the
ordinary course. The Merger Agreement also contains certain
termination rights in favor of each the Company and AstraZeneca,
including under certain circumstances, the requirement for the
Company to pay AstraZeneca a termination fee of $41.0 million. The
boards of directors of the Company and AstraZeneca have
unanimously approved the Merger Agreement and the transactions
contemplated thereby. The completion of the merger is subject to
various customary conditions, including the approval of the
Company's stockholders, and the Company expects to complete the
merger in the second or third quarter of 2012.
On or about April 23, 2012, a putative class action lawsuit was
filed in the Superior Court of the State of California, County of
San Diego, purportedly on behalf of the stockholders of the
Company, against AstraZeneca, the Company and the directors and
President and Chief Executive Officer of the Company alleging,
among other things, that the Company's directors breached their
fiduciary duties to the stockholders of the Company in connection
with its proposed merger with AstraZeneca. Based on the
information currently available, management believes that the
claim currently pending is without merit.
Based in San Diego, California, Ardea Biosciences, Inc. --
http://www.ardeabio.com/-- a biotechnology company, focuses on
the discovery and development of small-molecule therapeutics for
the treatment of gout and cancer in the United States. Its
product candidates include Lesinurad (RDEA594), an inhibitor of
the URAT1 kidney transporter, which is in Phase III clinical
trials for the treatment of gout; BAY 86-9766 (RDEA119), a
mitogen-activated ERK kinase (MEK) inhibitor that is in Phase II
clinical trials for the treatment of cancer; and RDEA3170, an
URAT1 kidney transporter inhibitor, which is in Phase I clinical
trials for the treatment of gout. The company has a development
and commercialization license agreement with Bayer Healthcare AG
to develop and commercialize MEK inhibitors for various
indications.
BANK OF AMERICA: Faces Class Action Over 2008 Merrill Deal
----------------------------------------------------------
Sue Reisinger, writing for Law.com, reports that a class action
lawsuit against Bank of America Corporation is shedding more light
on what bank executives knew and when they knew it, just before
the bank's shareholders voted to acquire Merrill Lynch & Co. Inc.
in late 2008.
The suit claims the bank's execs, including former CEO Kenneth
Lewis, knew but failed to disclose that Merrill was suffering
spiraling losses from the financial crisis of 2008. Merrill
eventually booked a $15.8 billion quarterly loss, even as it was
paying $3.6 billion in bonuses.
The bank disclosed neither the growing losses nor the huge bonuses
to its shareholders before they voted to acquire Merrill on
December 5 that year.
Many details of what Mr. Lewis knew were part of a Corporate
Counsel cover story on the deal, "Was He Listening?", published in
November 2009. Mr. Lewis had said the bank learned of the losses
after the shareholder vote, but the story revealed the "evidence
is overwhelming that the bank knew much earlier."
The story also included a look at then-bank general counsel Tim
Mayopoulos, who learned of the size of the losses late on December
9, 2008, and was fired the next morning without cause or
explanation.
The lack of disclosures eventually led to the bank agreeing to pay
$150 million to settle an action brought by the Securities and
Exchange Commission -- but not before Judge Jed Rakoff clashed
with the SEC over what he called its "half-baked justice" for
punishing the company and not its executives.
Now the case is playing out again in the shareholder suit in U.S.
District Court in Manhattan, before Judge P. Kevin Castel. In a
deposition earlier this year, Mr. Lewis admitted he knew about the
increasing losses when he spoke to shareholders before they voted.
In a memorandum available on June 4, the plaintiffs argued for a
partial summary judgment, claiming Mr. Lewis misled the
shareholders with false assurances about Merrill's stability. It
asks the judge to find that Mr. Lewis' use of outdated figures was
a material statement of fact.
Mr. Lewis has always argued, and repeats it here, that he relied
on the advice of counsel for his actions and statements.
Plaintiffs are represented by Kaplan Fox & Kilsheimer of New York;
Bernstein Litowitz Berger & Grossman of New York; and Kessler
Topaz Meltzer & Check of Radnor, Pennsylvania.
Mr. Lewis is represented by Andrew Ceresney, a partner at
Debevoise & Plimpton. None of the attorneys have commented on the
case.
The New York Times suggested in a story on June 4 that the case
may lead to more calls for the government to get tougher with
financial executives.
"The disclosure, coming to light in private litigation, is likely
to reignite concerns that federal regulators and prosecutors have
not worked hard enough to hold key executives accountable for
their actions during the financial crisis," the story said.
CHICAGO, IL: Settles 2003 Anti-War Protest Class Action
-------------------------------------------------------
The Associated Press reports that Chicago will end up paying $16
million to settle a lawsuit filed by about 900 participants in a
2003 anti-war march when attorneys' fees and a deal in a related
lawsuit are added in.
The city's Finance Committee on June 4 approved paying the $6.2
million initially agreed to in the settlement, plaintiffs'
lawyers' fees of nearly $5 million that have accumulated over nine
years of litigation and $1.14 million to settle a related lawsuit
filed by 16 plaintiffs who didn't join the class-action case.
The city's legal costs were $3.8 million, making the total price
tag $16 million.
City corporation counsel Steve Patton says Chicago was "unlikely
to prevail" in the class action case after U.S. District Court
Appellate Judge Richard Posner last year called the city's
policies for handling demonstrations "idiotic."
Some 10,000 demonstrators flooded the plaza near the city's
federal courthouse in March 2003, shortly after the Iraq war
began. The protesters marched to Lake Shore Drive, blocking
traffic.
More than 500 people were detained, and about 300 were charged
with crimes. All the charges were later dropped.
After the settlement was reached in February, city officials said
they learned valuable lessons from the case. They point out that
with recent demonstrations, police were careful to not make
arrests unless they were absolutely necessary.
"The city chose to defend the indefensible for nine years, and
they paid millions of dollars to an outside law firm to do so. So
under the law, we are entitled to our legal fees," said Joey
Mogul, an attorney for the largest group of plaintiffs.
Mr. Mogul said had the city acknowledged its mistake years
earlier, it would have saved taxpayers millions of dollars.
Payouts from the settlement will range from $500 for people
detained by police but not arrested to $15,000 for people who were
arrested, held for more than two days and prosecuted.
CHINA-BIOTICS: Gainey & McKenna, Egleston File Class Action
-----------------------------------------------------------
Gainey & McKenna and the Egleston Law Firm filed the original
class action on behalf of purchasers of the common stock of China-
Biotics, Inc. between April 15, 2010 and November 14, 2011,
inclusive, seeking to pursue remedies under the Securities
Exchange Act of 1934 in the United States District Court for the
Southern District of New York.
A copy of the original complaint filed by the law firms can be
found at http://www.gme-law.com
Another law firm has issued press releases but has not filed any
action against the defendants.
If you wish to serve as lead plaintiff, you must move the Court no
later than July 24, 2012. If you wish to discuss this action or
have any questions concerning this notice or your rights or
interests, please contact plaintiff's attorneys, Thomas J. McKenna
of Gainey & McKenna at (212) 983-1300, or via e-mail at
tjmckenna@gaineyandmckenna.com or Gregory M. Egleston of the
Egleston Law Firm at (212) 683-3400, or via e-mail at
egleston@gme-law.com
Any member of the putative class may move the Court to serve as
lead plaintiff through counsel of their choice, or may choose to
do nothing and remain an absent class member.
Plaintiff seeks to recover damages on behalf of all purchasers of
China-Biotics common stock during the Class Period (the "Class").
The plaintiff is represented by Gainey & McKenna and the Egleston
Law Firm -- http://www.gme-law.com-- whose attorneys prosecute
securities class actions and investor class actions throughout the
United States.
COMCAST CABLE: Accused of Keeping Former Customers' Information
---------------------------------------------------------------
Steve Bayer and Kandi Cook, on behalf of themselves and all others
similarly situated v. Comcast Cable Communications, LLC, Case No.
3:12-cv-02826 (N.D. Calif., June 1, 2012) alleges that Comcast
uses its position as the nation's largest provider of cable
television to collect personal information, such as names,
addresses, social security numbers, and credit card numbers, from
tens of millions of consumers across the country.
After consumers terminate their service with Comcast, however, and
this information is no longer needed to provide service or collect
payment, Comcast continues to maintain personally identifiable
information on all of its previous customers indefinitely, the
Plaintiffs allege. They contend that this conduct violates the
Cable Communications Policy Act, which requires cable operators to
destroy personally identifiable information when it is no longer
required for the purpose for which it was collected.
Steve Bayer is a citizen of the state of Illinois. Kandi Cook is
a citizen of the state of California.
Comcast is a Pennyslvania corporation headquartered in
Philadelphia. Comcast is the nation's largest cable operator,
servicing over 20 million customers. Comcast provides cable
services to customers in 39 states, including the state of
California.
The Plaintiffs are represented by:
Joseph J. Siprut, Esq.
James M. McClintick, Esq.
SIPRUT PC
122 South Michigan Ave., Suite 1850
Chicago, IL 60603
Telephone: (312) 588-1440
Facsimile: (312) 427-1850
E-mail: jsiprut@siprut.com
jmcclintick@siprut.com
- and -
Todd C. Atkins, Esq.
SIPRUT PC
701 B Street, Suite 1170
San Diego, CA 92101
Telephone: (619) 255-2380
Facsimile: (619) 231-4984
E-mail: tatkins@siprut.com
CUMULUS MEDIA: Still Awaits Final OK of Wage Suit Settlement
------------------------------------------------------------
Cumulus Media Inc. is still awaiting final court approval of a
class settlement resolving a putative class action filed against
its subsidiary relating to overtime wages, according to the
Company's May 7, 2012, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended March 31, 2012.
On January 21, 2010, a former employee of CMP Susquehanna Corp.
(CMPSC) -- which became a subsidiary of Cumulus upon completion of
the CMP Acquisition on August 1, 2011 -- filed a purported class
action lawsuit, pending in the U.S. District Court, Northern
District of California, San Francisco Division, against CMPSC
claiming (i) unlawful failure to pay required overtime wages; (ii)
late pay and waiting time penalties; (iii) failure to provide
accurate itemized wage statements; (iv) failure to indemnify for
necessary expenses and losses; and (v) unfair trade practices
under California's Unfair Competition Act.
On September 2, 2011, CMPSC and this former employee entered into
a Joint Stipulation re: Settlement and Release of Class Action
Claims with respect to such lawsuit. The Settlement was
preliminarily approved by the Court on February 6, 2012 and
provides for the payment by CMPSC of a maximum of $0.9 million in
full and final settlement of all of the claims made in the
lawsuit.
No updates were reported in the Company's latest Form 10-Q filing.
Based in Atlanta, Georgia, Cumulus Media Inc. (NASDAQ: CMLS) --
http://www.cumulus.com/-- is the second largest radio broadcaster
in the United States based on station count, controlling 350 radio
stations in 68 U.S. media markets. In combination with its
affiliate, Cumulus Media Partners, LLC, the Company believes it is
the fourth largest radio broadcast company in the United States
when based on net revenues.
DENDREON CORP: Amended Securities Suit Dismissal Bid Pending
------------------------------------------------------------
Dendreon Corporation's motion to dismiss a an amended consolidated
securities class action complaint in Washington is pending,
according to the Company's May 7, 2012, Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended
March 31, 2012.
The Company and three current and former officers are named
defendants in a consolidated putative securities class action
proceeding pending in the U.S. District Court for the Western
District of Washington under the caption In re Dendreon
Corporation Class Action Litigation, Master Docket No. C 11-1291
JLR. Lead Plaintiff, San Mateo County Employees Retirement
Association purports to state claims for violations of federal
securities laws on behalf of a class of persons who purchased the
Company's common stock between April 29, 2010 and August 3, 2011.
A consolidated amended complaint was filed on February 24, 2012.
In general, the complaints allege that the defendants issued
materially false or misleading statements concerning the Company,
its finances, business operations and prospects with a focus on
the market launch of PROVENGE and related forecasts concerning
physician adoption, and revenue from sales of PROVENGE as
reflected in the Company's August 3, 2011 release of its financial
results for the quarter ended June 30, 2011. The Company and
other defendants filed a motion to dismiss the consolidated
amended complaint on April 27, 2012. The Company says it cannot
predict the outcome of that motion or of these lawsuits; however,
it believes the claims lack merit and intends to defend the claims
vigorously.
Dendreon Corporation -- http://www.dendroen.com/-- a
biotechnology company, engages in the discovery, development, and
commercialization of novel therapeutics to enhance cancer
treatment options for patients. The Company's product portfolio
includes active cellular immunotherapy and small molecule product
candidates to treat a range of cancers. The Company offers
PROVENGE (sipuleucel-T), an autologous cellular immunotherapy for
the treatment of asymptomatic or minimally symptomatic,
metastatic, castrate-resistant (hormone-refractory), and prostate
cancer. The Company was founded in 1992 and is headquartered in
Seattle, Washington.
DEUTSCHE BANK: Sued in Hawaii Over Deceptive Trade Practice
-----------------------------------------------------------
Courthouse News Service reports that Deutsche Bank sold more than
700 distressed homes at submarket rates by advertising them for
sale by quitclaim deed rather than warranty deed, a class claims
in Hawaii's First Circuit Court.
A copy of the Complaint in Lima, et al. v. Deutsche Bank National
Trust Company, et al., Case No. 12-1-1560-06 (Hawaii Cir. Ct.), is
available at:
http://www.courthousenews.com/2012/06/05/HawaiiRealEstate.pdf
The Plaintiffs are represented by:
James J. Bickerton, Esq.
Stanley H. Roehrig, Esq.
BICKERTON LEE DANG & SULLIVAN
745 Fort Street, Suite 801
Honolulu, HI 96813
Telephone: (808) 599-3811
E-mail: bickerton@bsds.com
roehrig@bsds.com
- and -
Raymond C. Cho, Esq.
Van-Alan H. Shima, Esq.
AFFINITY LAW GROUP
1188 Bishop Street, Suite 3408
Honolulu, HI 96813
Telephone: (808) 545-4600
DIRECTV LLC: Sued Over Retention of Former Customers' Information
-----------------------------------------------------------------
Robert Hodson and Leslie Golba, on behalf of themselves and all
others similarly situated v. DirecTV, LLC, Case 3:12-cv-02827
(N.D. Calif., June 1, 2012) alleges that as one of the nation's
best recognized and fastest-growing satellite television
providers, DirecTV uses its position to collect personal
information, such as names, addresses, social security numbers,
and credit card numbers, from tens of millions of consumers across
the country.
After consumers terminate their service with DirecTV, however, and
this information is no longer needed to provide service or collect
payment, DirecTV continues to maintain personally identifiable
information on all of its previous customers indefinitely, in
violation of the Satellite Home Viewer Extension and
Reauthorization Act, the Plaintiffs contend. They assert that
consumers are unaware that their personally identifiable
information is retained indefinitely by DirecTV, as DirecTV fails
to send annual privacy notices informing them that it continues to
retain their information.
The Plaintiffs are citizens of the state of California.
DirecTV is a California corporation headquartered in El Segundo.
DirecTV is a rapidly expanding provider of direct broadcast
satellite service, with nearly 20 million customers in the United
States, Latin America, and the Caribbean. DirecTV provides
satellite services to customers in all 50 states.
The Plaintiffs are represented by:
Joseph J. Siprut, Esq.
James M. McClintick, Esq.
SIPRUT PC
122 South Michigan Ave., Suite 1850
Chicago, IL 60603
Telephone: (312) 588-1440
Facsimile: (312) 427-1850
E-mail: jsiprut@siprut.com
jmcclintick@siprut.com
- and -
Todd C. Atkins, Esq.
SIPRUT PC
701 B Street, Suite 1170
San Diego, CA 92101
Telephone: (619) 255-2380
Facsimile: (619) 231-4984
E-mail: tatkins@siprut.com
DRIL-QUIP: Obtains Favorable Ruling in Deepwater Horizon Suit
-------------------------------------------------------------
Dril-Quip, Inc. obtained in April an order granting a final
judgment in its favor with respect to a litigation relating to an
incident involving the drilling rig "Deepwater Horizon", according
to the Company's May 7, 2012, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended March 31,
2012.
On April 22, 2010, a deepwater U.S. Gulf of Mexico drilling rig
known as the Deepwater Horizon, operated by BP Exploration &
Production, Inc., sank after an explosion and fire that began on
April 20, 2010. The Company is a party to an ongoing contract
with an affiliate of BP to supply wellhead systems in connection
with BP's U.S. Gulf of Mexico operations, and the Company's
wellhead and certain of its other equipment were in use on the
Deepwater Horizon at the time of the incident.
Multiple investigations into the Deepwater Horizon incident have
been conducted, and in some cases, continue to be conducted by
governmental agencies, including the Department of Justice, the
U.S. Chemical Safety and Hazard Investigation Board, the National
Commission on the BP Deepwater Horizon Oil Spill and Offshore
Drilling (which released its final investigative report in January
2011), and the BOEMRE/U.S. Coast Guard Joint Investigation Team
(which released its final investigative report in September 2011).
The Company was designated as a party-in-interest, received
requests for certain information and provided testimony in
connection with the joint investigation conducted by BOEMRE and
the U.S Coast Guard. The Company also received requests to
preserve information from the Joint Investigation Team, the
Department of Justice and the U.S. Chemical Safety and Hazard
Investigation Board. While the focus of some of these
investigations is to develop options for guarding against future
oil spills associated with offshore drilling, the Department of
Justice has announced that it is reviewing, among other criminal
statutes, The Clean Water Act (CWA), which carries civil penalties
and fines as well as criminal penalties, The Oil Pollution Act of
1990 (OPA), which can be used to hold parties liable for cleanup
costs and reimbursement for government efforts, and The Migratory
Bird Treaty Act of 1918 and Endangered Species Act of 1973, which
provide penalties for injury and death to certain wildlife and
bird species.
The Company was named, along with other unaffiliated defendants,
in nine class action lawsuits and ten other lawsuits arising out
of the Deepwater Horizon incident. These actions were filed
against the Company between April 28, 2010 and March 11, 2011 and
were consolidated, along with hundreds of other lawsuits not
directly naming the Company, in the multi-district proceeding In
Re: Oil Spill by the Oil Rig "Deepwater Horizon" in the Gulf of
Mexico, on April 20, 2010 (MDL Proceeding). The lawsuits
generally allege, among other things, violation of state and
federal environmental and other laws and regulations, negligence,
gross negligence, strict liability, personal injury and/or
property damages and generally seek awards of unspecified
economic, compensatory and punitive damages and/or declaratory
relief.
The judge presiding over the MDL Proceeding is also presiding over
a separate but related proceeding filed by affiliates of
Transocean Ltd. under the Limitation of Liability Act (Limitation
Action) in the federal court for the Eastern District of
Louisiana. On February 18, 2011, Transocean filed a Third-Party
Complaint, tendering the Company to the plaintiffs/claimants in
the Limitation Action, which had the procedural effect of making
the Company a defendant in over 100,000 claims filed by plaintiffs
in the Limitation Action.
In April and May 2011, Transocean, Cameron International
Corporation, Halliburton Energy Services, Inc., M-I, LLC,
Weatherford U.S. LP and Weatherford International, Inc. each filed
cross claims against the Company in the MDL Proceeding and/or in
the Limitation Action, generally seeking subrogation and/or
contribution from the Company and alleging negligence, comparative
fault and strict liability for manufacturing, design and marketing
defects by the Company. In May 2011, Transocean filed a Third-
Party Complaint against the Company, impleading it into an action
brought by the United States in connection with the Deepwater
Horizon incident against Transocean, BP and certain of its
affiliates, Anadarko Petroleum Corporation and certain of its
affiliates, and MOEX Offshore 2007, LLC as "Responsible Parties"
under OPA and for violations of CWA, which alleged comparative
fault and strict liability for manufacturing, design and marketing
defects by the Company and generally seeks subrogation and/or
contribution from the Company. In June 2011, BP and its affiliate
BP America Production Company filed counterclaims against the
Company in the MDL Proceeding and in the Limitation Action
generally seeking subrogation and/or contribution from the
Company.
On January 20, 2012, the judge presiding over the MDL Proceeding,
the Limitation Action and the U.S. government's action against
"Responsible Parties" under OPA, issued an order that granted the
Company's Motion for Summary Judgment and dismissed all claims
asserted against the Company in those proceedings with prejudice.
On March 2, 2012, the same judge issued an order adjourning the
first phase of the trial for these proceeding indefinitely to
allow the remaining parties to reassess their positions following
an agreement between BP and the plaintiffs counsel on a proposed
class action settlement. On April 9, 2012, the judge issued an
order granting a final judgment in favor of the Company with
respect to the court's prior order that granted the Company's
Motion for Summary Judgment.
Dril-Quip, Inc. -- http://www.dril-quip.com/-- designs,
manufactures, fabricates, inspects, assembles, tests, and markets
engineered offshore drilling and production equipment for use in
deepwater, harsh environment, and severe service applications
worldwide. It serves integrated, independent, and foreign
national oil and gas companies, as well as offshore drilling
contractors, and engineering and construction companies. The
Company was founded in 1981 and is headquartered in Houston,
Texas.
eRESEARCH TECHNOLOGY: Faces Class Suits Over Genstar Merger Deal
-----------------------------------------------------------------
eResearch Technology, Inc. is defending itself against a class
action lawsuits relating to its merger transaction with Genstar
Capital LLC affiliates, according to the Company's May 7, 2012,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended March 31, 2012.
On April 10, 2012, the Company announced that it entered into a
definitive agreement to be acquired by Explorer Holdings, Inc.
(Parent) and Explorer Acquisition Corp. (Merger Sub), affiliates
of Genstar Capital LLC (Genstar), a leading middle market private
equity firm, for $8.00 per share in cash in a merger valued at
approximately $400 million. The proposed merger was approved
unanimously by the Company's Board of Directors, following a
recommendation by a Special Committee of independent directors.
Pending stockholder approval and satisfaction of customary closing
conditions, the transaction is expected to be completed during the
third quarter of 2012.
On April 11, 2012, a purported class action complaint was filed in
the Court of Chancery in the State of Delaware, naming the
Company, the members of its board of directors, Genstar, Parent
and Merger Sub as defendants. Two similar complaints were filed
in that Court on April 13, 2012, and the Court consolidated those
three cases on April 16, 2012. The operative complaint in the
consolidated action generally alleges that, in connection with
approving the merger, the Company's directors breached their
fiduciary duties owed to the Company's stockholders, and that
Genstar, Parent and Merger Sub knowingly aided and abetted the
directors' breaches of their fiduciary duties. The operative
complaint in the consolidated action seeks, among other things,
certification of the case as a class action, an injunction against
the consummation of the transaction, a judgment against the
defendants for damages, and an award of fees, expenses and costs
to plaintiffs and their attorneys. Two other actions were filed,
one in the Court of Common Pleas of Philadelphia in the First
Judicial District of the Commonwealth of Pennsylvania, and the
other in Delaware Court of Chancery, on April 13, 2012 and April
17, 2012 respectively, making similar claims and seeking similar
relief.
Headquartered in Philadelphia, Pennsylvania, eResearchTechnology,
Inc. -- http://www/ert.com/-- provides technology-driven services
and medical devices primarily in North America, the United
Kingdom, and Germany. The Company's cardiac safety solutions
include EXPERT, a technology platform for workflow-enabled cardiac
safety data collection, interpretation, and distribution of
electrocardiographic (ECG) data and images, as well as for
analysis and cardiologist interpretation of ECGs on research
subjects.
ESTEE LAUDER: Sued Over Bogus Claims on "Plantscription" Product
----------------------------------------------------------------
Courthouse News Service reports that Estee Lauder Cos. and Origins
Natural Resources pushed "Plantscription" products with bogus
claims about "anti-aging benefits," a class action claims in
Federal Court.
A copy of the Complaint in Calzadilla, et al. v. The Estee Lauder
Companies, Inc., et al., Case No. SACV12882 (C.D. Calif.), is
available at:
http://www.courthousenews.com/2012/06/05/Lauder.pdf
The Plaintiffs are represented by:
Farrah Mirabel, Esq.
LAW OFFICES OF FARRAH MIRABEL
4590 MacArthur Blvd., Suite 280
Newport Beach, CA 92660
Telephone: (949) 752-0707
EVENFLO INC: Recalls 35T Convertible High Chairs Due to Fall Risk
-----------------------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
Evenflo Inc., of Miamisburg, Ohio, announced a voluntary recall of
about 35,000 convertible high chairs in the United States of
America. Consumers should stop using recalled products
immediately unless otherwise instructed. It is illegal to resell
or attempt to resell a recalled consumer product.
The activity tray on the high chair can unexpectedly detach and
allow an unrestrained child to fall, posing a risk of injury to
the child.
Evenflo has received 18 reports of trays that detached, including
eight reports of children who fell from the high chair and
sustained bumps and bruises.
This recall involves Evenflo high chairs that convert from a high
chair to toddler-size table and chair. The convertible high chair
can be identified by the model names and numbers listed below.
Model numbers are located on a label on the lower portion of one
of the high chair's legs.
Model Name Model Number
---------- ------------
Dottie Lime 29111259
Dottie Rose 29111271
Marianna 29111234
Pictures of the recalled products are available at:
http://www.cpsc.gov/cpscpub/prerel/prhtml12/12192.html
The recalled products were manufactured in China and sold at Toys
"R" Us and Walmart stores nationwide and online at Walmart.com and
Wayfair.com between December 2011 and June 2012 for about $40.
Consumers with the recalled highchairs should immediately contact
Evenflo for a replacement tray with installation and use
instructions. For additional information, please contact Evenflo
at (800) 233-5921 between 8:00 a.m. through 5:00 p.m. Eastern Time
Monday through Friday, or visit the firm's Web site at
http://safety.evenflo.com/
FACEBOOK INC: Berman DeValerio Files Securities Class Action
------------------------------------------------------------
The law firm of Berman DeValerio filed a securities class action
lawsuit on June 4 on behalf of purchasers of Facebook, Inc. in or
traceable to the Company's May 18, 2012, initial public offering.
The lawsuit, which is captioned Eannarino v. Facebook Inc., et
al., 12-civ-4360, is pending in the United States District Court
for the Southern District of New York. To receive a copy of the
complaint, please call Berman DeValerio at (800) 516-9926.
The lawsuit alleges that Facebook, Morgan Stanley, Inc., and
certain of Facebook's officers, directors and underwriters
violated the Securities Act of 1933 in connection with the
Company's IPO, which took place on May 18, 2012. In the IPO,
defendants sold 421 million shares of Facebook's common stock at
$38 per share, for total proceeds of more than $16 billion.
According to the complaint, the registration statement and
prospectus filed in connection with the IPO were false and
misleading, as they failed to disclose that: (1) the Company had
warned its underwriters that its second-quarter 2012 sales would
be at the lower end of its estimates; (2) its underwriters had
lowered their performance estimates for the Company; and (3)
certain defendants were actively suppressing demand for the IPO by
secretly disclosing this information to certain preferred
investors.
As alleged in the complaint, based on this selective disclosure
and as news of Facebook's lowered estimates reached the market,
Facebook's stock dropped precipitously, ultimately closing down
$9.81 or 26%, causing investors aggregate losses of approximately
$4 billion.
If you are a member of the alleged class, you may, no later than
July 23, 2012, request that the court appoint you as Lead
Plaintiff for the class. You may contact the attorneys at Berman
DeValerio to discuss your rights and interests in the case.
Please note: you also may retain counsel of your choice, but do
not need to take any action at this time to be a class member.
Pursuant to the Private Securities Litigation Reform Act of 1995,
investors wishing to serve as the lead plaintiff are required to
file a motion for appointment with the Court no later than July
23, 2012.
Berman DeValerio -- http://www.bermandevalerio.com-- is a
national law firm representing investors for violations of
securities and antitrust laws. The firm has 45 lawyers in Boston,
San Francisco and Palm Beach Gardens, Florida.
Contact: Nathaniel Orenstein, Esq.
BERMAN DEVALERIO
Telephone: (800) 516-9926
E-mail: norenstein@bermanesq.com
FACEBOOK INC: Zuckerberg Faces Class Action Over Insider Trading
----------------------------------------------------------------
The Times of India reports that Facebook investors have filed a
class action lawsuit against the social network's co-founder Mark
Zuckerberg, alleging that he had inside information that the
company's stock was overvalued that led to his dumping of shares
ahead of their post-IPO collapse.
According to TMZ, the suit alleged that Zuckerberg hid from most
investors the fact that the Facebook business model was not built
to sustain enough advertising revenue to support an IPO price of
38 dollars a share.
Underwriters Morgan Stanley, J.P. Morgan Chase, and Goldman Sachs
all warned Zuckerberg before the IPO that the company was
overvalued, but that the information was "selectively disclosed"
to only the social network's largest investors, the lawsuit added.
Facebook shares have fallen nearly 30% since their May 18 debut.
FACEBOOK INC: Faces Another IPO-Related Class Suit in California
----------------------------------------------------------------
John Gregory, on behalf of himself and all others similarly
situated v. Facebook, Inc.; Mark Zuckerberg; David A. Ebersman;
Sheryl K. Sandberg; David M. Spillane; Marc L. Andreesen; Erskine
B. Bowles; James W. Breyer; Donald E. Graham; Reed Hastings; Peter
A. Thiel; Morgan Stanley & Co. LLC; J.P. Morgan Securities LLC;
Goldman Sachs & Co.; Merrill Lynch, Pierce, Fenner & Smith Inc.;
and Barclays Capital Inc., Case No. 5:12-cv-02815 (N.D. Calif.,
June 1, 2012) is brought on behalf of himself and all others
similarly situated, who purchased securities of Facebook pursuant
and traceable to its Registration Statement and Prospectus issued
in connection with its May 18, 2012 initial public offering.
During Facebook's roadshow prior to the IPO, its underwriters
received material information from the Company advising them to
cut their revenue forecasts in the second quarter and full year of
2012, according to the Plaintiff. The Underwriter Defendants,
however, only revealed the information to a small number of their
clients, primarily large institutional investors, Mr. Gregory
alleges. By selectively disclosing this material information to
only certain preferred investors, Facebook, its officers and
directors and the Underwriter Defendants made materially
misleading statements and as a result, millions of investors
purchased Facebook's shares at artificially high prices, and
suffered damages, he asserts.
Mr. Gregory purchased Facebook common stock pursuant and traceable
to the Registration Statement issued in connection with the IPO
and suffered damages as a result of the federal securities laws
violations and false and misleading statements and material
omissions alleged in the lawsuit.
Facebook is a Delaware corporation. Facebook is a global social
networking company that allows users to connect, share, and
communicate with other users; enables developers to build social
applications and Web sites that integrate with Facebook; and
offers space to advertisers to engage with Facebook's hundreds of
millions of users. The Individual Defendants are directors and
officers of the Company. Morgan Stanley, J.P. Morgan, Goldman
Sachs, Merrill Lynch and Barclays served as underwriters of
Facebook's IPO.
The Plaintiff is represented by:
Bruce L. Simon, Esq.
George S. Trevor, Esq.
William J. Newsom, Esq.
PEARSON, SIMON, WARSHAW & PENNY, LLP
44 Montgomery Street, Suite 2450
San Francisco, CA 94104
Telephone: (415) 433-9000
Facsimile: (415) 433-9008
E-mail: bsimon@pswplaw.com
gtrevor@pswplaw.com
wnewsom@pswplaw.com
- and -
Clifford H. Pearson, Esq.
Daniel L. Warshaw, Esq.
Alexander R. Safyan, Esq.
PEARSON, SIMON, WARSHAW & PENNY, LLP
15165 Ventura Boulevard, Suite 400
Sherman Oaks, CA 91403
Telephone: (818) 788-8300
Facsimile: (818) 788-8104
E-mail: cpearson@pswplaw.com
dwarshaw@pswplaw.com
asafyan@pswplaw.com
FIDELITY NATIONAL: Faces Class Action Over Illegal Kickbacks
------------------------------------------------------------
Matt Reynolds at Courthouse News Service reports that Fidelity
National Title Insurance and other major title insurers illegally
kicked back fees to real estate agents for real estate settlement
services, homeowners claim in a federal class action.
Lead plaintiff Matthias Hildebrandt says lead defendant Fidelity
National Financial Inc. settled with the U.S. government in 2011
for violating the Real Estate Settlement Procedures Act (RESPA).
RESPA protects homebuyers by prohibiting kickbacks and fees for
real estate settlement services in federal backed mortgage loans.
The class claims that Fidelity ran the scheme using a web-based
platform called TransactionPoint, which "allowed kickbacks and
referral fees to be disguised as 'sublicense fees' or 'access
fees.'"
"Through TransactionPoint, agents or brokers selected real estate
settlement service providers for real estate transactions and, in
turn, real estate brokers and agents entered into standard form
sublicensing agreements with vendors, including defendants, to
enable the vendors to be listed and selected through
TransactionPoint as service providers for the transaction," the
complaint states.
Fidelity paid predetermined fees for each referral, but real
estate agents and brokers "performed no bona fide work for the
fees," according to the complaint.
"In short, the scheme allowed defendants and participating real
estate agents and brokers to camouflage illegal kickbacks and
referral fees as sub-license payments," the complaint states.
For a home warranty policy, a kickback was up to one-fifth of the
premium, while a kickback for a title insurance policy was $100
per policy, the complaint states.
The class claims Fidelity paid millions of dollars in kickbacks
and referral fees, to "hundreds, if not thousands" of real estate
agents and brokers.
The homebuyers claim Fidelity evaded federal and state regulators
for years, until the U.S. Department of Housing and Urban
Development investigated it in 2009.
Last year, HUD reached a $4.5 million settlement with Fidelity,
which announced that it was terminating TransactionPoint fee
payments.
The class claims that part of the fees they paid were used to pay
kickbacks, which inflated the cost of settlement services.
Also named as defendants are Commonwealth Land Title Co., Chicago
Title Co., Ticor Title Co. of California, Lawyers Title Co.,
Fidelity National Disclosure Source LLC, and Fidelity National
Home Warranty Co.
The 42-page complaint includes another 154 pages of exhibits.
The class seeks restitution and treble damages for RESPA
violations.
Fidelity did not immediately respond to an emailed request for
comment.
A copy of the Complaint in Hildebrandt, et al. v. Fidelity
National Financial, Inc., et al., Case No. SACV12874 (C.D.
Calif.), is available at:
http://www.courthousenews.com/2012/06/05/FidelityCA.pdf
The Plaintiffs are represented by:
Edward D. Chapin, Esq.
Francis A. Bottini, Jr., Esq.
Jill M. Sullivan, Esq.
Keith M. Cochran, Esq.
CHAPIN FITZGERALD SULLIVAN & BOTTINI LLP
550 West "C" Street, Suite 2000
San Diego, CA 92101
Telephone: (619) 241-4810
E-mail: echapin@cfsblaw.com
fbottini@cfsblaw.com
jsullivan@cfsblaw.com
kcochran@cfsblaw.com
- and -
Blair A. Nicholas, Esq.
Benjamin Galdston, Esq.
BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP
12481 High Bluff Drive, Suite 300
San Diego, CA 92130
Telephone: (858) 793-0070
E-mail: blairn@blbglaw.com
beng@blbglaw.com
FIRST HORIZON: Faces Class Action Over Mortgage "Kickbacks"
-----------------------------------------------------------
Ted Evanoff, writing for The Commercial Appeal, reports that
two borrowers claim Memphis' largest homegrown bank schemed to
jack up fees in a murky corner of mortgage lending called captive
reinsurance.
A lawsuit filed in Philadelphia federal district court contends
the scheme pumped $46.3 million in kickbacks to First Horizon
National Corp., owner of First Tennessee Bank, between 2004 and
2011.
Litigation could sting the 4,900-employee Memphis bank if the
borrowers bring in more First Horizon mortgage customers as class-
action plaintiffs and win a large penalty payment in court.
Once ranked among the country's 20 largest mortgage lenders, First
Horizon staffed 250 mortgage offices and 30 wholesale production
centers in 41 states before selling most of its mortgage business
in August 2008 to MetLife Bank.
The lawsuit follows a U.S. Department of Housing and Urban
Development probe that asserted large U.S. banks took $6 billion
in captive reinsurance kickbacks during the 2000s.
Federal prosecutors have never followed the HUD probe with charges
against big banks, but Bank of America Corp. and Wells Fargo & Co.
recently settled similar class-action lawsuits, reported the trade
journal American Banker.
First Horizon executives declined to comment on Monday about the
lawsuit, but spokesman Jack Bradley released a statement. It says
officials have not been served the lawsuit and adds:
"From what we understand, however, this action is similar to suits
already filed against many other banks. Although we sold our
mortgage business in 2008, First Horizon has always acted in a
responsible and fair manner, and we remain committed to the
highest standards of business ethics and legal compliance."
In the lawsuit, Saydei G. Barlee of Philadelphia and Barry D.
Broome of Atlanta allege the bank and four insurers schemed to
mask the kickbacks as part of the regular mortgage insurance they
paid on their home loans.
Defendants include United Guaranty Residential Insurance Co. of
Greensboro, N.C.; Genworth Mortgage Insurance Corp. of Raleigh,
N.C.; Republic Mortgage Insurance Co. of Winston-Salem, N.C.; and
Radian Guaranty Inc. of Philadelphia.
Like most lenders, First Horizon requires that homebuyers insure
their conventional home loans if the buyer borrows more than 80
percent of the value of the house.
Insurance protects the bank if the borrower fails to repay the
loan. The homebuyer pays for the mortgage insurance.
According to the lawsuit, the customer can't shop for insurance.
The bank picks the insurer, figures out the cost of insurance with
the insurer and directs the borrower to the insurer. Federal law
bars banks from accepting referral fees from mortgage insurers.
First Horizon sidestepped the federal ban by using its FT
Reinsurance subsidiary, the lawsuit contends. The four insurers
contracted with FT Reinsurance to stand by and pitch in if a
borrower defaulted on a loan.
The insurers paid FT Reinsurance for this service by diverting to
it part of the insurance premium paid by the homebuyer, the
lawsuit asserts.
"FT Reinsurance receives these payments while assuming very little
or no actual risk," the lawsuit contends. FT Reinsurance received
$46.3 million, while FT's share of paid claims was $4.3 million,
according to the lawsuit.
Each insurer "chose to participate in the scheme and to pay
kickbacks and/or referral fees to First Horizon because it was in
their own best interest," the lawsuit alleges.
In the HUD probe, investigators said banks threatened insurers
with loss of business if they didn't go along with the captive
reinsurance scheme. It's not clear how much insurance payments
rose as a result for the typical consumer.
In Philadelphia, Mr. Barlee claims total mortgage insurance
charges of $226.42 per month, while Mr. Broome claims $55.19 per
month.
Insurance charges are generally less if buyers use their own money
to pay for part of the house purchase.
HANOVER INSURANCE: Judge Balks at Plaintiffs' Forum Shopping
------------------------------------------------------------
Michael P. Tremoglie, writing for Legal Newsline, reports that a
federal judge from the U.S. District Court for the Western
District of Arkansas ruled on May 29 that plaintiffs in a class
action case were engaged in "what amounts to improper forum
shopping."
They had asked to dismiss their complaint and re-file after the
defendants moved the original case to federal court.
The case, Thatcher v. Hanover Insurance Group, was originally
filed in Miller County, Ark. But the defendants moved it to
federal court because the litigation met the Class Action Fairness
Act of 2005 guidelines.
The plaintiffs then moved to dismiss the case without prejudice.
They maintained that the amount of damages did not meet the CAFA
threshold -- as the defendants claimed.
The district court granted the plaintiff's dismissal. But this
was appealed to the U.S. Court of Appeals for the Eighth Circuit,
which reversed the district court. It said, "determining whether
the district court had subject matter jurisdiction was at the crux
of the issue of whether the motion to dismiss was being used for
the improper purpose of seeking a more favorable forum."
The appellate court remanded the case, instructing the district
court: "After the trial court determines whether it has subject
matter jurisdiction, it can consider whether dismissal without
prejudice is appropriate, taking into consideration whether the
motion to dismiss is a forum-shopping measure. Alternatively, if
the court finds that it does not have subject matter jurisdiction,
it should remand to the state court."
The district court determined, after the case was remanded, that
the sum of the calculations of the possible damages would total
$6,614,773. This amount exceeds the CAFA threshold of $5 million
needed to move the case to federal court.
The plaintiff also did not furnish, according to the district
court, "a good reason why it wants to voluntarily dismiss its
case, re-file in state court and eliminate the first three counts
stated in his amended complaint." It concluded that the "obvious
reason . . . is to avoid removal of the class action to federal
court upon it being re-filed as a breach of contract action only.
That clearly amounts to improper forum shopping and the analysis
need proceed no further."
The district court also noted that the plaintiff and the attorneys
"are not to be permitted to shop for a new and hopefully more
favorable forum if it turns out that their complaint -- as drawn
-- places them in a court not of their liking."
Some claim the Miller County courts are well liked by plaintiffs
attorneys. The system has been the subject of controversy in
another class action case involving insurance companies that used
the software tool Colossus being sued.
The defendants have moved their case to federal court, citing
CAFA. But the plaintiffs want to keep the case in Miller County.
The defendants claim the county courts are biased in favor of
plaintiffs and they would be inundated with unnecessarily
expensive discovery requests which are intended to force a
settlement.
Among the plaintiff's attorneys in the "Colossus" case are John C.
Goodson, of Keil & Goodson in Texarkana, and Brad E. Seidel, Nix,
Patterson & Roach in Camden, Ark. These are the same law firms
involved in Thatcher v. Hanover.
HIGHER ONE: Faces Class Action Over Deceptive Bank Fees
-------------------------------------------------------
Tycko & Zavareei disclosed that a California resident and college
student who was deceptively assessed bank fees by Higher One has
filed a class action lawsuit against the fast-growing financial
services company. The class action lawsuit alleges that the
plaintiff, and other Higher One accountholders nationwide, were
deceived into using a Higher One account in order to access their
college financial aid money, then subsequently charged unfair and
improperly disclosed bank fees. The lawsuit alleges that these
practices violate consumer protection laws and also violate the
contracts Higher One imposes upon students.
"It is difficult enough for students to afford college these days
without a company like Higher One taking a student's financial aid
money to pad its own bottom line," said Hassan Zavareei, a partner
at the Washington D.C. based law firm Tycko & Zavareei, which
represents the plaintiff, Ventura College student Sherry McFall.
Higher One has arrangements with hundreds of colleges and
universities around the country whereby a student's financial aid
money is automatically deposited into a Higher One bank account --
without any authorization from a student. Even before
matriculating, students are provided Higher One debit cards in the
mail. Students are also bombarded with advertisements and e-mails
encouraging them to use the Higher One cards to access their
financial aid money "immediately" and "faster" than any other
method.
The lawsuit alleges, among other things, that Higher One and its
partner, Bancorp Bank, falsely represent to students that they are
the preferred banking provider of their universities and use other
deceptive marketing to encourage students to use Higher One. The
lawsuit also alleges that Higher One unfairly and deceptively
charges students bank fees which most other U.S. banks do not
charge, and which were not properly disclosed either prior to or
after Higher One opened accounts for the students. In addition,
the lawsuit alleges that Higher One failed to provide a reasonable
means for students to avoid the excessive fees. For example,
Higher One requires students to use Higher One ATMs to access
their financial aid money without a fee -- but does not provide an
adequate number of ATM machines, or even make those machines
available at all hours. The lawsuit was filed in Ventura County
Superior Court.
A recent report by the U.S. Public Interest Research Group agrees
with many of the allegations made in Ms. McFall's lawsuit.
According to the report, "The Campus Debit Card Trap,"
"Fees can be steep and frequent for students using the university-
adopted cards, including a variety of per-swipe fees, inactivity
fees, overdraft fees, ATM fees and fees to reload prepaid cards."
"Potentially aggressive marketing tactics can make students
captive customers."
Access to student financial aid funds placed on debit cards can be
subject to limited availability of "convenient" fee-free ATMs for
student loan withdrawals despite U.S. Department of Education
rules. Students end up paying fees to access their aid.
"Some practices, such as outsourcing of student ID functions and
pre-loading of disbursement cards, raise privacy issues."
"Because many of these fees are paid with student loan money, a
student could be paying off these unfair and deceptive Higher One
fees for the next 10 or 20 years, which is outrageous," said
Mr. Zavareei.
Tycko & Zavareei, which has been active in bank fee litigation
nationwide, is also investigating banking and financial services
imposed upon students at other colleges. "We are continuing to
investigate the practices of Higher One and other banks who offer
college students bank accounts and disbursement services. Students
need to be compensated for practices which are, in essence,
stealing their precious financial aid money," said Mr. Zavareei.
A copy of the Higher One class action complaint is available upon
request from Tycko & Zavareei. Additional information about the
case can be found on Tycko & Zavareei's Web site.
Contact: Hassan Zavareei, Esq.
Jeffrey Kaliel, Esq
Tycko & Zavareei LLP
2000 L Street NW, Suite 808
Washington DC 20036
Telephone: (202) 973-0900
E-mail: vareei@tzlegal.com
jkaliel@tzlegal.com
Web site: http://www.tzlegal.comhza
INDIANA: Awaits Ruling in Sex Offender Social Media Ban
-------------------------------------------------------
The Associated Press reports that a federal judge said on May 31
she plans to rule within a month on the constitutionality of an
Indiana law that bans registered sex offenders from using social
networking Web sites where they could prey on children.
The American Civil Liberties Union of Indiana is heading the
class-action suit on behalf of a man who served three years for
child exploitation, along with other sex offenders who are
restricted by the ban even though they are no longer on probation.
Federal judges have barred similar bans in Nebraska and Louisiana.
Similar restrictions remain in effect in New York, Illinois and
North Carolina.
In a one-hour hearing at U.S. District Court in Indianapolis,
Judge Tanya Walton Pratt questioned attorneys about convicted sex
offenders' civil rights and whether the state law is outdated in
the age of Facebook, LinkedIn and dozens of other social
networking sites.
ACLU attorney Ken Falk argued that even though the 2008 law is
only intended to protect children from online sexual predators, it
also prevents sex offenders from using social media for political,
business and religious activity such as using Facebook to follow
the pope or comment on newspaper Web sites, posting a profile on
LinkedIn or following presidential candidates on Twitter.
Mr. Falk said the law violates the rights of communication,
receiving information and association, all of which the U.S.
Supreme Court has ruled are guaranteed by the First Amendment. He
also argued that the ban was unnecessary because Indiana already
has a law that makes it a crime to use the Internet to contact a
child for the purposes of sexual gratification.
Indiana Deputy Attorney General David Arthur argued that the 2008
ban is limited only to social networking sites that allow access
by children, and that Facebook, Twitter and similar sites aren't
the only forms of communication.
"We still have television. We still have radios. And believe it
or not, people still talk face-to-face," he said. Mr. Arthur also
said the ban doesn't apply to e-mail or Internet message boards.
Mr. Falk said social media are almost indispensable. "It's not
enough to say that the plaintiffs can still write letters or go to
meetings," he said. "These are not adequate alternatives for
instant communication."
Courts have long allowed states to place restrictions on convicted
sex offenders who have completed their sentences, controlling
where many of them live and work and requiring them to register
with police. But Mr. Falk told Judge Pratt that the social
networking ban was far broader, restricting a wide swatch of
constitutionally protected activities.
Mr. Arthur compared the social networking ban to laws barring sex
offenders from school property and other places frequented by
kids. Only in this case, he said, the place is virtual.
Similar social networking bans have been struck down in two other
states.
In February, U.S. District Judge Brian Jackson found that
Louisiana's prohibition was too broad and "unreasonably restricts
many ordinary activities that have become important to everyday
life."
Louisiana lawmakers passed a new law this month that more narrowly
defines which sites are prohibited. News and government sites,
e-mail services and online shopping are excluded from the new
rules, as are photo-sharing and instant-messaging systems. The
measure takes effect Aug. 1.
In Nebraska, a federal judge in 2009 blocked part of a law that
included a social networking ban. A second legal challenge by an
Omaha-area sex offender is set for trial in July.
KV PHARMACEUTICAL: 8th Cir. Revives Securities Class Action
-----------------------------------------------------------
Nate Raymond, writing for Reuters, reports that investors can
continue to bring claims against KV Pharmaceutical Co for making
false or misleading statements to the U.S. Food and Drug
Administration, a federal appeals court ruled on June 4.
The United States Court of Appeals for the Eighth Circuit Court of
Appeals largely revived a proposed securities fraud class action
that had been dismissed in its entirety by a trial court in 2010.
In the lawsuit, investors claimed to have suffered $1.5 billion in
losses because KV, a generic drug maker, first misled the FDA in
its compliance reports, and subsequently shut down its
manufacturing operations in 2009.
Neither KV Pharmaceutical nor a lawyer for the company responded
to requests for comment.
The decision marks the latest setback for KV Pharmaceutical, which
starting in 2008 was subject to a series of recalls and
investigations by the Justice Department and the FDA related to
the company's manufacturing and distribution of oversized morphine
pills.
In March 2010, former KV subsidiary Ethex Corp, pleaded guilty to
two felony counts of criminal fraud and agreed to pay $27.6
million in fines and restitution in connection with the charges
stemming from the investigations.
A year later, KV's former chief executive, Marc Hermelin, pleaded
guilty to misdemeanor violations of the Food, Drug and Cosmetic
Act. He was sentenced to 30 days in jail and ordered to pay $1.9
million in fines and forfeitures.
Investors pursued the fraud claims separately in a case filed in
2009 in U.S. District Court in St. Louis. The lawsuit focused on
FDA inspections of KV facilities over a six-year period. Results
of those inspections were reported to the company's management on
a document called a Form 483.
The shareholders argued that information on the Forms 483 about
KV's compliance with FDA regulations contradicted statements KV
made to investors. The forms showed that KV was not in compliance
with FDA regulations, investors said.
KV countered that the forms did not represent the FDA's final
determination, a view adopted by U.S. District Judge Carol Jackson
in dismissing the suit. But a three-judge panel of the 8th
Circuit appeal court reversed the dismissal, saying investors
could have considered them significant given the company's
assurance's that it was in compliance.
"There is a substantial likelihood the presence of these factors
would be viewed by a reasonable investor as significantly altering
the total mix of information made available, irrespective of
whether the Form 483 represents the FDA's final say on compliance
issues," Judge Kermit Bye wrote.
The decision could have ramifications for other drug companies
since it is the first time a federal appeals court has determined
that FDA's issuance of a Form 483 can be considered material under
federal securities laws, said Javier Bleichmar of Labaton
Sucharow, the lead lawyer for the investors.
The 8th Circuit also said Judge Jackson abused her discretion by
denying the investors' motion to amend their complaint to add
details from the guilty pleas of KV subsidiary Ethex and former KV
CEO Hermelin. Both pleas followed Judge Jackson's earlier
February 2010 decision to dismiss the shareholders' case.
The appellate court did uphold Judge Jackson on a separate point,
though, in dismissing the investors' claims that KV made false or
misleading statements about its manufacturing of a generic version
of the blood pressure drug metoprolol.
The case is Public Pension Fund Group v. KV Pharmaceutical Co, 8th
Circuit Court of Appeals, no. 10-3402.
For the plaintiffs: Javier Bleichmar of Labaton Sucharow
For KV Pharmaceutical: Andrew Tulumello of Gibson Dunn
ORRSTOWN BANK: To "Vigorously Defend" SEPTA Securities Suit
-----------------------------------------------------------
Matt Miller, writing for The Patriot-News, reports that Orrstown
Bank officials are vowing to "vigorously defend" against a federal
class-action lawsuit filed by one of the nation's largest public
transit systems.
The Southeastern Pennsylvania Transportation Authority is claiming
bank officials lied about the Shippensburg-based bank's soundness
to encourage SEPTA and other investors to buy Orrstown stock,
which has plummeted in value.
Those allegedly misleading statements violated the federal
Securities Exchange Act, SEPTA contends in the suit filed in U.S.
Middle District Court in Harrisburg.
"We believe the allegations in this complaint are without merit,"
Orrstown Bank Marketing Director Mark Bayer said on June 1. He
said he couldn't discuss the case further.
The legal battle with SEPTA, the transit agency for Philadelphia
and Bucks, Chester, Delaware and Montgomery counties, comes while
Orrstown is on a tight rein by the Federal Reserve Board of
Governors and the state Banking Department.
In March, the Fed issued an enforcement order requiring, among
other things, an in-depth review of Orrstown's lending processes,
particularly its procedures for vetting commercial loans.
Fed regulators have been working with the bank for more than a
year.
The enforcement order came months after the bank reported $32
million in losses for 2011, a year in which it had to write-off
millions of dollars in bad commercial loans.
The 2011 losses contrasted sharply with the $16 million profit the
bank reported for 2010. The bank reported an $8.2 million loss
for the first quarter of this year.
In an interview with The Patriot-News last month, Orrstown Bank
President Thomas R. Quinn Jr. insisted the bank is sound and that
officials are working with Fed regulators with the aim of "making
us a better bank."
Mr. Quinn said a lethargic economy and the near collapse of
property values in far southern Pennsylvania and northern Maryland
forced his bank to make significant commercial loan write-offs in
2011.
He did not rule out the possibility that the bank will have to
continue making such write-offs. He said he expects it will
continue to be focused on regulatory concerns over the next 18
months.
Customers won't see major impacts from the Fed involvement, which
has been ongoing for a year, Mr. Quinn said. Orrstown intends to
remain independent, he said.
The impact of SEPTA's suit, which seeks to join all the investors
in more than 8 million shares of Orrstown's stock, remains to be
seen.
SEPTA doesn't specify the amount of financial damages it seeks,
nor does the suit state the amount of loss the agency claims to
have suffered from the drop in value of Orrstown stock.
Kimberly Donaldson Smith, whose Haverford law firm, Chimicles &
Tikellis, is representing SEPTA, couldn't be reached for comment.
In the suit, SEPTA notes that the price of Orrstown stock, which
sold for $27 a share in March 2010, has fallen precipitously as
bad news about the bank's status emerged. It was trading at
around $7.60 a share on the NASDAQ exchange on June 1.
SEPTA's complaint focuses on what it claims were "misleading"
statements by Mr. Quinn and other bank leaders before, during and
after the March 2010 stock offering.
By making those statements touting the 93-year-old bank's supposed
soundness and disciplined lending policies, Orrstown officials
were able to "artificially inflate" the stock's value, raising
$37.5 million in capital, SEPTA contends.
It claims that repeated assertions by Orrstown officials that the
bank was being run with fiscal discipline were a "sham" and that
bank leaders knew the foundation was shaky.
Investors learned that only by piecing together bad news as it
trickled out, the agency contends.
SEPTA cites not only the Fed enforcement order, but also the Fed's
decision last fall to bar Orrstown from paying a dividend to
stockholders.
Also on SEPTA's list of bad tidings is the mid-2011 write-off of
an $8.6 million loan to the bankrupt Yorktown Funding Inc., a
financier for residential developers. SEPTA claims the bank kept
giving Yorktown credit extensions even after other banks had
stopped making such loans in the faltering real estate market.
While the Fed didn't officially begin probing Orrstown Bank until
March 2011, SEPTA claims "a reasonable inference can be drawn that
the regulators had put the company on notice as early as July 2010
that the company's management and banking practices raised
concerns."
Yet "the company continued to falsely portray itself throughout
2010 and 2011 as a conservative lender, diligent in assessing loan
quality," SEPTA contends.
Orrstown Bank's holding company, Orrstown Financial Services Inc.,
is also named as a defendant in the suit, as are Quinn, the bank's
former president, Kenneth Shoemaker, and members of its board of
directors.
Those directors include chairman Joel Zullinger, a Chambersburg
attorney; state Rep. Mark Keller, R-New Bloomfield; ex-state Rep.
Jeff Coy; and Anthony Ceddia, former president of Shippensburg
University.
R.J. REYNOLDS: Calloway Family Wins $75-Mil. Tobacco Damages
------------------------------------------------------------
The Schlesinger Law Offices disclosed that after a two-month trial
in Fort Lauderdale, FL, a circuit court jury has awarded the
family of a deceased smoker $75.35 million in both compensatory
and punitive damages in one of the so-called Engle progeny tobacco
cases.
The victim, Johnnie Calloway, was a 40-year smoker who died in May
1992 at the age of 59. The case was brought against the country's
four largest tobacco companies by his widow Marvine Calloway and
their daughter Starr Williams. A construction worker by trade,
Mr. Calloway grew up in Mississippi, but spent the last 20 years
of his life in Fort Lauderdale. He died from bladder cancer and
heart disease caused by his addiction to nicotine.
The verdict is unique because this is the first, and thus far
only, Engle progeny case in which compensatory and punitive
damages were assessed against each tobacco company, said attorney
Jonathan Gdanski, of Schlesinger Law Offices in Fort Lauderdale,
which represented the plaintiffs. Other attorneys working on the
case include Scott P. Schlesinger, Steven J. Hammer and Crane A.
Johnstone.
The payout of the punitive award is as follows:
-- R.J. Reynolds Tobacco Company: $17.25 million
-- Philip Morris USA: $17.4 million
-- Lorillard Tobacco Company: $12.6 million
-- Liggett Group LLC: $7.6 million
"The family recognizes that no amount of money can bring back
their beloved husband and father," said Mr. Hammer. "Nevertheless,
the verdict emphasizes the fact that this man's prematurely
shortened life was of great value to the people who loved him. It
further underscores the need for tobacco companies to acknowledge
they sell a very dangerous product. Their cigarettes are designed
to addict starting at a young age, and they kill as many as half
of those who succumb to nicotine addiction," he added.
Although the verdict comes nearly 20 years after the Calloway
family lost their husband and father, it underscores the family's
unshakeable determination to see that the true dangers of the drug
nicotine (long hidden by the tobacco companies' nationwide
conspiracy, said attorneys for Mr. Calloway) were revealed in a
Florida state courtroom.
The case, which was heard by Judge John J. Murphy III, was one of
thousands of "Engle progeny" cases, named after a 2006 Florida
Supreme Court decision that decertified a class-action lawsuit
against the tobacco industry. That case involved Dr. Howard A.
Engle, a Miami Beach pediatrician and smoker who served as the
lead plaintiff in the original class-action suit that was filed in
1994. The decertification of the class action allowed former
class members, including Mr. Calloway, to have their cases heard
individually.
The Schlesinger Law Offices has been one of the most active law
firms in the country handling tobacco cases.
SUPPORT.COM INC: Defends Consumer Suit Over Software Products
-------------------------------------------------------------
Support.com Inc. is defending itself against a consumer lawsuit
alleging fraudulent promotion of software products, according to
the Company's May 7, 2012, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended March 31,
2012.
On February 7, 2012, a lawsuit seeking class-action certification
was filed against the Company in the U.S. District Court for the
Northern District of California, No. 12-CV-00609, alleging that
the design of one the Company's software products and the method
of promotion to consumers constitute fraudulent inducement, breach
of contract, breach of express and implied warranties, and unjust
enrichment. On the same day, the same plaintiffs' law firm filed
another action in the U.S. District Court for the Southern
District of New York, No. 12-CV-0963, involving similar
allegations against a subsidiary of the Company and one of the
Company's channel partners who distributes the Company's software
products, and that channel partner has requested indemnification
under contract terms with the Company. The law firm representing
the plaintiffs in both cases has filed unrelated class actions in
the past year against a number of major software providers with
similar allegations about those providers' products. At this
time, the Company believes a loss is neither probable nor
estimable and based on available information regarding this
litigation, the Company is unable to determine an estimate, or a
range of estimates, of potential losses.
Support.com is a Delaware corporation with its headquarters and
principal place of business in Redwood City, California.
Support.com is a developer of computer utility software.
TIME WARNER: Faces Suit Over Retention of Former Customers' Info
----------------------------------------------------------------
Todd Burton, on behalf of himself and all others similarly
situated v. Time Warner Cable Inc., Case No. 3:12-cv-02828 (N.D.
Calif., June 1, 2012) accuses Time Warner of using its position as
one of the nation's largest providers of cable television to
collect personal information, such as names, addresses, social
security numbers, and credit card numbers, from tens of millions
of consumers across the country.
The Plaintiff contends that after consumers terminate their
service with Time Warner and this information is no longer needed
to provide service or collect payment, Time Warner continues to
maintain personally identifiable information on all of its
previous customers indefinitely, in violation of Cable
Communications Policy Act. He adds that consumers are unaware
that their personally identifiable information is retained
indefinitely by Time Warner, as Time Warner fails to send annual
privacy notices informing consumers that it continues to retain
their information.
Mr. Burton is a citizen of the state of California.
Time Warner is a Delaware corporation headquartered in New York
City. Time Warner is one of the nation's most prominent cable
providers, servicing more than 20 million cable customers. Time
Warner provides cable services to customers in 28 states,
including the State of California.
The Plaintiff is represented by:
Joseph J. Siprut, Esq.
James M. McClintick, Esq.
SIPRUT PC
122 South Michigan Ave., Suite 1850
Chicago, IL 60603
Telephone: (312) 588-1440
Facsimile: (312) 427-1850
E-mail: jsiprut@siprut.com
jmcclintick@siprut.com
- and -
Todd C. Atkins, Esq.
SIPRUT PC
701 B Street, Suite 1170
San Diego, CA 92101
Telephone: (619) 255-2380
Facsimile: (619) 231-4984
E-mail: tatkins@siprut.com
TREX CO: Defends Lawsuits in Ind., Mich., N.J. Over Mold Growth
---------------------------------------------------------------
Trex Co Inc. is defending itself against class lawsuits filed in
Indiana, Michigan, and New Jersey over allegations of mold growth
in its products, according to the Company's May 7, 2012, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended March 31, 2012.
On December 15, 2010, a purported class action case was commenced
against the Company in the U.S. District Court, Western District
of Kentucky, by the lead law firm of Cohen & Malad, LLP on behalf
of Richard Levin and similarly situated plaintiffs, and on June
13, 2011, a purported class action was commenced against the
Company in the Marion Circuit/Superior Court of Indiana by Cohen &
Malad on behalf of Ellen Kopetsky and similarly situated
plaintiffs. On June 28, 2011, the Company removed the Kopetsky
case to the U.S. District Court, Southern District of Indiana. On
August 11, 2011, a purported class action was commenced against
the Company in the 50th Circuit Court for the County of Chippewa,
Michigan on behalf of Joel and Lori Peffers and similarly situated
plaintiffs. On August 26, 2011, the Company removed the Peffers
case to the U.S. District Court, Western District of Michigan. On
April 4, 2012, a purported class action was commenced against the
Company in Superior Court of New Jersey, Essex County on behalf of
Caryn Borger, M.D. and similarly situated plaintiffs. The Company
intends to make a motion to remove this case to Federal Court.
The plaintiffs in these purported class actions generally allege
certain defects in the Company's products and alleged
misrepresentations relating to mold growth. The Company believes
that these claims are without merit, and will vigorously defend
these lawsuits.
Headquartered in Winchester, Virginia, Trex Company, Inc. --
http://www.trex.com/-- manufactures and distributes wood/plastic
composite products, and related accessories primarily for the
residential and commercial decking and railing applications in the
United States.
UNITED PARCEL: Still Defends Consumer Class Suits in Canada
-----------------------------------------------------------
United Parcel Service Inc. continues to defend itself in putative
consumer class action complaints in Canada, according to the
Company's May 7, 2012, Form 10-Q filing with the U.S. Securities
and Exchange Commission from the quarter ended March 31, 2012.
In Canada, three purported class-action cases were filed against
the Company in British Columbia (2006); Ontario (2007) and Quebec
(2006). The cases each allege inadequate disclosure concerning
the existence and cost of brokerage services provided by the
Company under applicable provincial consumer protection
legislation and infringement of interest restriction provisions
under the Criminal Code of Canada. The British Columbia class-
action was declared inappropriate for certification and dismissed
by the trial judge. That decision was upheld by the British
Columbia Court of Appeal in March 2010, which ended the case in
the Company's favor. The Ontario class action was certified in
September 2011. Partial summary judgment was granted to the
Company and the plaintiffs by the Ontario motions court. The
complaint under the Criminal Code was dismissed. No appeal is
being taken from that decision. The allegations of inadequate
disclosure were granted and the Company is appealing that
decision. The request to certify the case in Quebec was heard in
February 2012. The Company has denied all liability and is
vigorously defending the two outstanding cases. The Company says
there are multiply factors that prevent it from being able to
estimate the amount of loss, if any, that may result from these
matters, including (1) it is vigorously defending itself and
believe that it has a number of meritorious legal defenses and (2)
there are unresolved questions of law and fact that could be
important to the ultimate resolution of these matters.
Accordingly, at this time, the Company is not able to estimate a
possible loss or range of loss that may result from these matters
or to determine whether such loss, if any, would have a material
adverse effect on our financial condition, results of operation or
liquidity.
Based in Atlanta, Georgia, United Parcel Service, Inc. --
http://www.ups.com/-- a package delivery company, provides
transportation, logistics, and financial services in the United
States and internationally. It operates in three segments: U.S.
Domestic Package, International Package, and Supply Chain &
Freight.
UNITED PARCEL: Still Defends Price-Fixing Lawsuit in New York
-------------------------------------------------------------
United Parcel Service Inc. continues to defend itself in a lawsuit
alleging price-fixing in New York, according to the Company's May
7, 2012, Form 10-Q filing with the U.S. Securities and Exchange
Commission from the quarter ended March 31, 2012.
In January 2008, a class action complaint was filed in the U.S.
District Court for the Eastern District of New York alleging
price-fixing activities relating to the provision of freight
forwarding services. UPS was not named in the case. In July
2009, the plaintiffs filed a first amended complaint naming
numerous global freight forwarders as defendants. UPS and UPS
Supply Chain Solutions are among the 60 defendants named in the
amended complaint. The Company intends to vigorously defend
itself in the case. The Company says there are multiple factors
that prevent it from being able to estimate the amount of loss, if
any, that may result from these matters including: (1) the
magistrate judge recommended that the district court grant its
motion to dismiss, with leave to amend, and the scope of the
plaintiffs' claims is therefore unclear; (2) the scope and size of
the proposed class is ill-defined; (3) there are significant legal
questions about the adequacy and standing of the putative class
representatives; and (4) the Company believes that it has a number
of meritorious legal defenses. Accordingly, at this time, the
Company is not able to estimate a possible loss or range of loss
that may result from these matters or to determine whether such
loss, if any, would have a material adverse effect on its
financial condition, results of operations or liquidity.
No updates were reported in the Company's latest Form 10-Q filing.
Based in Atlanta, Georgia, United Parcel Service, Inc. --
http://www.ups.com/-- a package delivery company, provides
transportation, logistics, and financial services in the United
States and internationally. It operates in three segments: U.S.
Domestic Package, International Package, and Supply Chain &
Freight.
VIROPHARMA INC: Berger & Montague Files Class Action
----------------------------------------------------
On May 17, 2012, the law firm of Berger & Montague, P.C. filed a
class action Complaint against ViroPharma Incorporated and Vincent
J. Milano, its President, Chief Executive Officer and Chairman of
its Board of Directors, in the Eastern District of Pennsylvania,
No. 2:12-CV-02714 on behalf of all purchasers of ViroPharma
securities between December 14, 2011 and April 9, 2012, inclusive.
This action, which was filed with Pomerantz Haudek Grossman &
Gross LLP, is the only lawsuit that has been filed against the
Company.
If you purchased ViroPharma securities during the Class Period you
have until July 23, 2012 to ask the Court to appoint you as Lead
Plaintiff for the Class. If you want more information about the
action or your participation in it please contact Douglas M. Risen
by e-mail at drisen@bm.net or toll free (888) 891-2289, or contact
the other lawyers listed below.
The complaint alleges that on December 14, 2011 ViroPharma issued
a press release announcing label changes for the Company's
Vancocin antibiotic resulting from FDA approval of a supplemental
new drug application ("sNDA") modernizing labeling for the drug.
The December 14 press release represented that these label changes
would qualify the drug for three years of market exclusivity,
precluding FDA approval of competing generic drugs, stating: "As a
result of [Mon]day's sNDA approval, ViroPharma believes Vancocin
meets the requirements for, and thus has, three years of
exclusivity, and that generic Vancomycin capsules will not be
approved during this time period."
As a result of the materially false and misleading representation
about market exclusivity in the December 14, 2011 press release,
the market price of ViroPharma stock jumped $4.21 per share, from
a closing price of $23.59 per share on December 13, 2011 to a
closing price of $27.80 on December 14, 2011, on heavy volume of
almost five million shares.
The Complaint alleged that defendants' representations about
market exclusivity in the December 14 press release and similar
representations concerning market exclusivity during the Class
Period were materially misleading due to the fact that defendants'
failure to disclose the fact that to obtain market exclusivity
Vancocin would need to meet a statutory standard applicable only
to "old" antibiotics (those approved before 1997) which the label
changes had little or no prospect of compliance. That standard,
provides that market exclusivity shall not apply to any "condition
of use" for which the drug was previously approved.
On April 10, 2012, before the market opened, the Company issued a
press release which stated that the FDA informed ViroPharma that
the recent supplemental new drug application for Vancocin approved
on December 14, 2011 would not qualify for three years of
exclusivity based on the agency's position that in order for an
sNDA for an old antibiotic such as Vancocin to be eligible for a
grant of exclusivity, it must be a significant new use or
indication. The FDA also informed the Company that it was
approving three applications for generic Vancomycin capsules.
As a result, at the close of trading on April 10, 2012, the price
of ViroPharma shares had fallen $6.17 per share or 22% to close at
$22.44, per share on extraordinarily high trading volume.
For more information about this case, please contact
Sherrie R. Savett, Esq.
Carole A. Broderick, Esq.
Douglas R. Risen, Esq.
BERGER & MONTAGUE, P.C.
1622 Locust Street
Philadelphia, PA 19103888-891-2289
E-mail: info@bm.net
Web site: http://www.bergermontague.com
Berger & Montague, P.C. is a pioneer in class action litigation.
The firm's 70 attorneys concentrate their practice in complex
litigation, including securities fraud, whistleblower and false
claims actions and have recovered several billion dollars for
consumers and investors.
WCI COMMUNITIES: Contempt Suit Survives Motion to Dismiss
--------------------------------------------------------
Bankruptcy Judge Kevin J. Carey denied the request to dismiss the
complaint WCI Communities, Inc., filed against Joseph and Fabiola
Espinal, individually, as parents and natural guardians of Emily
and Camila Espinal, and as representatives of an alleged class of
similarly situated individuals.
The Adversary Complaint was filed in response to the Espinals'
filing of a class action complaint against Heron Bay Community
Association, Inc., Parkland Golf & Country Club Foundation, Inc.,
Venetian Golf & River Club Property Owners Association, Inc.,
Pelican Preserve Community Association, Inc., Rimini Property
Owners' Association, Inc., The Landings at Waterlefe Property
Owners Association, Inc., The Sound at Waterlefe Condominium
Association, Inc., and Toscana II at Renaissance Condominium
Association, Inc. The Espinals filed the Class Action Complaint
on July 27, 2009, in the Circuit Court of the 17th Judicial
Circuit in and for Broward County, Florida, Case No. 09041473. No
class has been certified in the adversary proceeding or in the
State Court Action.
The Adversary Complaint has three counts seeking (1) to hold the
Espinals in civil contempt for violating the order confirming the
plan in WCI's bankruptcy case; (2) a declaratory judgment that (i)
the Plan discharged certain claims and liabilities raised in the
Class Action Complaint, and (ii) the Espinals are violating the
Plan and Confirmation Order by pursuing those certain claims
against the WCI entities through the State Court Action; and (3)
damages resulting from the Espinals' breach of contract (i.e., a
breach of the Plan, which the Plaintiff argues is a contract
between the Debtors and their creditors).
The Court set a status hearing on June 18, 2012, at 11 a.m.
The case is, WCI COMMUNITIES, INC., (f/k/a WCI 2009 Corporation)
Plaintiff, v. JOSEPH ESPINAL and FABIOLA ESPINAL, individually and
as parents and natural guardians of EMILY ESPINAL and CAMILA
ESPINAL, minors, and in their capacity as the representatives of
any class Defendants, Adv. Proc. No. 09-52250 (Bankr. D. Del.). A
copy of the Court's June 1, 2012 Memorandum and Order is available
at http://is.gd/X08LDrfrom Leagle.com.
About WCI Communities
Headquartered in Bonita Springs, Florida, WCI Communities, Inc.
(Pink Sheets: WCIMQ) -- http://www.wcicommunities.com/-- is a
fully integrated homebuilding and real estate services company
with more than 50 years' experience in the design, construction
and operation of leisure-oriented, amenity rich master-planned
communities. It has operations in Florida, New York, New Jersey,
Connecticut, Virginia and Maryland.
The Company and 126 of its affiliates filed for Chapter 11
protection on August 4, 2008 (Bankr. D. Del. Lead Case No.
08-11643 through 08-11770). On July 1, 2009, debtor-affiliates
WCI 2009 Corporation, WCI 2009 Management, LLC and WCI 2009 Asset
Holding, LLC filed separate Chapter 11 petitions (Case Nos. from
09-12269 to 09-12271).
Thomas E. Lauria, Esq., Frank L. Eaton, Esq., and Linda M. Leali,
Esq., at White & Case LLP, in Miami, Florida, represented the
Debtors as counsel. Eric Michael Sutty, Esq., and Jeffrey M.
Schlerf, Esq., at Fox Rothschild LLP, represented the Debtors as
Delaware counsel. Lazard Freres & Co. LLC acted as the Debtors'
financial advisor. Epiq Bankruptcy Solutions LLC served as the
claims and notice agent for the Debtors. The U.S. Trustee for
Region 3 appointed five creditors to serve on an official
committee of unsecured creditors. Daniel H. Golden, Esq., Lisa
Beckerman, Esq., and Philip C. Dublin, Esq., at Akin Gump Strauss
Hauer & Feld LLP; and Laura Davis Jones, Esq., Michael R. Seidl,
Esq., and Timothy P. Cairns, Esq., at Pachulski Stang Ziehl &
Jones LLP, represented the committee. WCI disclosed total assets
of $2,178,179,000 and total debts of $1,915,034,000 when it filed
for Chapter 11.
The Bankruptcy Court on Aug. 26, 2009, confirmed the Second
Amended Joint Chapter 11 Plan of Reorganization for WCI
Communities, Inc. and its affiliates. The Plan became effective
Sept. 3, 2009.
Asbestos Litigation
ASBESTOS UPDATE: Hawaii Ct. Allows Appeal From Jurisdiction Order
-----------------------------------------------------------------
In the case captioned DOUGLAS P. LEITE and MARY ANN K. LEITE,
Plaintiffs, v. CRANE COMPANY, a Delaware Corporation, et al.,
Defendants, Civil No. 11-00636 JMS/RLP (D. Hawaii), Judge J.
Michael Seabright of the U.S. District Court for the District of
Hawaii granted the Plaintiffs' Motion for Leave to Take an
Interlocutory Appeal to question whether a defendant who supplied
products containing asbestos to the U.S. Navy may remove the
action from state court on the basis of the federal officer
removal statute, 28 U.S.C. Sec. 1442(a)(1).
Judge Seabright is of the view that permitting an interlocutory
appeal would clearly serve the interests of justice by avoiding
protracted and expensive litigation not only in this case, but
also in many other cases already filed in the same district and
potentially scores of follow-on cases. He believes that a
resolution in the case by the Ninth Circuit will have substantial
precedential value to a large number of other cases.
The Plaintiffs filed the action in the First Circuit Court of the
State of Hawaii asserting claims against 18 defendants that
manufactured, sold and/or supplied various products containing
asbestos to the U.S. Navy. Mr. Leite alleges that he was exposed
to asbestos contained in Defendants' products while working as a
machinist at the Pearl Harbor Naval Shipyard from 1966 to 1972,
causing him to develop asbestos-related diseases. As to those
Defendants that supplied asbestos products, the Complaint asserts
claims for failure to warn. One of the defendants, Crane Company,
a supplier of asbestos products, removed the action to the
District Court pursuant to 28 U.S.C. Sec. 1442(a)(1), which allows
removal where a defendant can establish a colorable federal
defense.
A copy of Judge Seabright's May 31, 2012 Decision is available at
http://is.gd/8BL4vNfrom Leagle.com.
ASBESTOS UPDATE: Pa. Ct. Junks Supplemental Testimony vs. GE
------------------------------------------------------------
Magistrate Judge David R. Strawbridge of the U.S. District Court
for the Eastern District of Pennsylvania on May 31, 2012, granted
a motion for sanctions filed by General Electric Company in the
case captioned LEONARD UNZICKER v. A.W. CHESTERSTON COMPANY, et
al., No. MDL-875, PA-ED Case No. 11-cv-66288 (E.D. Pa.), after
determining that even if Mr. Unzicker's supplemental testimony has
been verified, he would likely have been sanctioned by prohibiting
the use of the "supplemental" answers given the prejudice to GE.
Accordingly, the "supplemental" interrogatory answers were struck.
A copy of Judge Strawbridge's Decision is available at
http://is.gd/y9kCSGfrom Leagle.com.
ASBESTOS UPDATE: Court Denies Bid to Dismiss Mesothelioma Suit
--------------------------------------------------------------
Plaintiff in the case captioned IN RE ASBESTOS LITIGATION: DOUGLAS
GEIER, C.A. No. N12C-02-116 ASB (Del. Super. Ct.) was diagnosed
with mesothelioma and filed suit in Delaware in February 2012.
The defendants promptly moved to dismiss for forum non conveniens.
The court held oral arguments and reserved judgment. In the
meantime the court directed that the Plaintiff's deposition move
forward as scheduled to preserve his testimony. The issue before
the court is whether a plaintiff who has had minimal to no contact
with Delaware and has twice filed suit elsewhere neither of which
is currently pending should have his case dismissed for forum non
conveniens grounds.
In a May 16, 2012 Decision, Judge John A. Parkins, Jr., of the
Superior Court of Delaware, New Castle County, denied the motion
pointing out that Delaware has a "liberal forum non conveniens
standard that has evolved in the context of Delaware corporate and
commercial litigation" and has been applied in mass tort cases as
well. Judge Parkins also pointed out the Delaware Supreme Court
has "articulate[d] a clear preference in favor of a plaintiff's
choice of forum, particularly where there are no previously filed
actions pending elsewhere."
A copy of Judge Parkins' Decision is available at
http://is.gd/gvYN6Mfrom Leagle.com.
ASBESTOS UPDATE: Writ of Mandate Okayed in Loss of Consortium Suit
------------------------------------------------------------------
The Court of Appeals of California, Second District, Division
Three, granted a petition filed by Sherrell Vanhooser seeking a
writ of mandate directing the trial court to vacate its order
granting the motion of defendant Hennessy Industries, Inc., for
summary judgment of her loss of consortium cause of action.
Hennessy premised its motion on Zwicker v. Altamont Emergency Room
Physicians Medical Group (2002) 98 Cal.App.4th 26 to argue that
the petitioner has no claim for loss of consortium because she was
not married to her husband when he was exposed to the asbestos
that caused his mesothelioma. The Petitioner contends the ruling
was incorrect because, pursuant to California Supreme Court
authority, her cause of action for loss of consortium damages
could only arise once her husband was diagnosed with mesothelioma,
not when he was exposed to the asbestos that later resulted in the
disease. The trial court certified its ruling granting summary
judgment to this court (Code Civ. Proc., Sec. 166.1).
The Appellate Court concluded that Zwicker is entirely
distinguished, and granted the petition and the writ. The
Appellate Court explained that first element of a loss of
consortium cause of action is the existence of a marriage at the
time of injury to the plaintiff's spouse. With asbestos-related
illnesses, as with other latent diseases, appreciable injury does
not occur at the time of exposure to the toxic substance, but
often decades later when disease is diagnosed or symptoms are
discovered. The Appellate Court held that the first element of a
loss of consortium cause of action is satisfied if the plaintiff's
marriage to the injured spouse predates discovery of symptoms, or
diagnosis, of an asbestos-related disease. This is so even if the
marriage postdates the spouse's exposure to the asbestos that
ultimately results in the injury.
The case is SHERRELL VANHOOSER, Petitioner, v. THE SUPERIOR COURT
OF LOS ANGELES COUNTY, Respondent; HENNESSY INDUSTRIES, INC., et
al., Real Parties in Interest, No. B239677 (Calif. App. Ct.). A
copy of the June 1, 2012 Decision is available at
http://is.gd/d5hXOWfrom Leagle.com.
ASBESTOS UPDATE: Court Limits SPX Defendants' Motions In Limine
---------------------------------------------------------------
Judge John A. Parkins, Jr., of the Superior Court of Delaware, New
Castle County, granted a petition filed by plaintiffs in the case
captioned In Re: Asbestos Litigation: Charlotte McGhee, v. SPX
Cooling Technologies, Inc., C.A. No. 10C-12-114 ASB (Del. Super.
Ct.), to prohibit the Defendants from adopting other Defendants'
motions in limine in excess of the five allowed motions. Judge
Parkins held that the practice advocated by the Defendant would
create an unlevel playing field noting that, through the proposed
practice, a plaintiff would be limited to five motions in limine
while the defendant could have a nearly endless number, while
plaintiffs do not have a similar ability because they are the only
party on their side of the action. A copy of Judge Parkins' June
4, 2012 Decision is available at http://is.gd/hoLqMJfrom
Leagle.com.
ASBESTOS UPDATE: Del. Ct. Denies Product Nexus Claim v. Crane Co.
-----------------------------------------------------------------
Kenneth Carlton served in the US Navy and worked at a Schenley
Distillery as a boiler tender. The Plaintiff alleges asbestos
exposure from the Defendant's, Crane Co., valves, pumps, and steam
traps. Crane Co. moves for summary judgment for product nexus,
replacement parts, and punitive damages.
Judge John A. Parkins, Jr., of the Superior Court of Delaware, New
Castle County, in a June 1, 2012 decision, granted the motion as
to product nexus with original asbestos-containing parts holding
that a reasonable jury could not find by a preponderance of the
evidence without speculating that the Plaintiff came in contact
with an original "asbestos-containing product made by [Defendant]"
in the navy or at the distillery and certainly could not find it
happened "with sufficient frequency and regularity" to meet the
Arkansas product nexus standard. Judge Parkins, however, denied
the motion, in part, and granted it, in part, as to the negligent
failure to warn claim for replacement parts not supplied by Crane.
Judge Parkins also denied the motion as to punitive damages.
The case is IN RE ASBESTOS LITIGATION: KENNETH CARLTON, Limited
to: Crane Co., C.A. No. N10C-08-216 ASB (Del.). A copy of Judge
Parkins' Decision is available at http://is.gd/AHljYXfrom
Leagle.com.
ASBESTOS UPDATE: CenterPoint Energy Still Faces Exposure Suits
--------------------------------------------------------------
CenterPoint Energy, Inc., in its Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
March 31, 2012, disclosed it continues to defend asbestos-related
exposure lawsuits.
Some facilities owned by CenterPoint Energy contain or have
contained asbestos insulation and other asbestos-containing
materials. CenterPoint Energy or its subsidiaries have been
named, along with numerous others, as a defendant in lawsuits
filed by a number of individuals who claim injury due to exposure
to asbestos. Some of the claimants have worked at locations owned
by subsidiaries of CenterPoint Energy, but most existing claims
relate to facilities previously owned by CenterPoint Energy's
subsidiaries. CenterPoint Energy anticipates that additional
claims like those received may be asserted in the future. In 2004
and early 2005, CenterPoint Energy sold its generating business,
to which most of these claims relate, to a company which is now an
affiliate of NRG. Under the terms of the arrangements regarding
separation of the generating business from CenterPoint Energy and
its sale of that business, ultimate financial responsibility for
uninsured losses from claims relating to the generating business
has been assumed by the NRG affiliate, but CenterPoint Energy has
agreed to continue to defend such claims to the extent they are
covered by insurance maintained by CenterPoint Energy, subject to
reimbursement of the costs of such defense by the NRG affiliate.
Although their ultimate outcome cannot be predicted at this time,
CenterPoint Energy intends to continue vigorously contesting
claims that it does not consider to have merit and does not
expect, based on its experience to date, these matters, either
individually or in the aggregate, to have a material adverse
effect on CenterPoint Energy's financial condition, results of
operations or cash flows.
CenterPoint Energy, Inc., is a public utility holding company
whose indirect wholly owned subsidiaries include CenterPoint
Energy Houston Electric, LLC (CenterPoint Houston), which engages
in the electric transmission and distribution business in a 5,000-
square mile area of the Texas Gulf Coast, which includes the city
of Houston, and CenterPoint Energy Resitsces Corp. (CERC Corp.
and, together with its subsidiaries, CERC), which owns and
operates natural gas distribution systems in six states.
Subsidiaries of CERC Corp. own interstate natural gas pipelines
and gas gathering systems and provide ancillary services.
ASBESTOS UPDATE: Ensco Plc Still a Defendant to Exposure Suits
--------------------------------------------------------------
Ensco plc in its Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarterly period ended March 31, 2012,
disclosed it continues to defend asbestos-related lawsuits.
The Company states: "During 2004, we and certain current and
former subsidiaries were named as defendants, along with numerous
other third-party companies as co-defendants, in several multi-
party lawsuits filed in Mississippi. The lawsuits sought an
unspecified amount of monetary damages on behalf of individuals
alleging personal injury or death, primarily under the Jones Act,
purportedly resulting from exposure to asbestos on drilling rigs
and associated facilities during the period 1965 through 1986. We
have been named as a defendant by 69 individual plaintiffs.
"During 2011 and 2012, we and certain subsidiaries were named as
defendants, along with numerous other third-party companies as co-
defendants, in eight multi-party lawsuits filed in Louisiana. The
lawsuits sought an unspecified amount of monetary damages on
behalf of individuals alleging personal injury or death, primarily
under the Jones Act, purportedly resulting from exposure to
asbestos on drilling rigs and associated facilities during the
1960s until the 1980s.
"We intend to continue to vigorously defend against these claims
and have filed responsive pleadings preserving all defenses and
challenges to jurisdiction and venue. However, discovery is still
ongoing and, therefore, available information regarding the nature
of all pending claims is limited. At present, we cannot reasonably
determine how many of the claimants may have valid claims under
the Jones Act or estimate a range of potential liability exposure,
if any.
"In addition to the pending cases in Mississippi and Louisiana, we
have other asbestos or lung injury claims pending against us in
litigation in other jurisdictions. Although we do not expect the
final disposition of these asbestos or lung injury lawsuits to
have a material adverse effect upon our financial position,
operating results or cash flows, there can be no assurances as to
the ultimate outcome of the lawsuits."
Ensco plc is a provider of offshore contract drilling services to
the international oil and gas industry.
ASBESTOS UPDATE: AIG Unit Had $508MM Net Liability at March 31
--------------------------------------------------------------
American International Group, Inc., in its Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarterly
period ended March 31, 2012, disclosed that its Chartis Inc.
subsidiary's net asbestos liability for unpaid claims and claims
adjustment expense at end of March 31, 2012, was $508 million.
The Company states: "The estimation of loss reserves relating to
asbestos and environmental claims on insurance policies written
many years ago is subject to greater uncertainty than other types
of claims due to inconsistent court decisions as well as judicial
interpretations and legislative actions that in some cases have
tended to broaden coverage beyond the original intent of such
policies and in others have expanded theories of liability.
"AIG's reserves relating to asbestos and environmental claims
reflect a comprehensive ground-up analysis performed annually.
"Chartis also has asbestos reserves relating to foreign risks
written by non-U.S. entities of $236 million gross and $166
million net reserves as of March 31, 2012. Similar amounts were
held at December 31, 2011."
American International Group, Inc., provides insurance products
and services for the commercial, institutional, and individual
customers in the United States and internationally.
ASBESTOS UPDATE: 3M Co. Still Defends Suits by 2,200 Claimants
--------------------------------------------------------------
3M Company in its Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarterly period ended March 31, 2012,
disclosed that the Company is a named defendant, with multiple co-
defendants, in numerous lawsuits in various courts that purport to
represent approximately 2,200 individual claimants compared to
approximately 2,260 individual claimants with actions pending at
December 31, 2011.
The vast majority of the lawsuits and claims resolved by and
currently pending against the Company allege use of some of the
Company's mask and respirator products and seek damages from the
Company and other defendants for alleged personal injury from
workplace exposures to asbestos, silica, coal mine dust or other
occupational dusts found in products manufactured by other
defendants or generally in the workplace. A minority of claimants
generally allege personal injury from occupational exposure to
asbestos from products previously manufactured by the Company,
which are often unspecified, as well as products manufactured by
other defendants, or occasionally at Company premises.
The Company's current volume of new and pending matters is
substantially lower than its historical experience. The Company
expects that filing of claims by unimpaired claimants in the
future will continue to be at much lower levels than in the past.
Accordingly, the number of claims alleging more serious injuries,
including mesothelioma and other malignancies, will represent a
greater percentage of total claims than in the past. The Company
has prevailed in all nine cases taken to trial, including seven of
the eight cases tried to verdict (such trials occurred in 1999,
2000, 2001, 2003, 2004, and 2007), and an appellate reversal in
2005 of the 2001 jury verdict adverse to the Company. The ninth
case, tried in 2009, was dismissed by the Court at the close of
plaintiff's evidence, based on the Court's legal finding that the
plaintiff had not presented sufficient evidence to support a jury
verdict. The plaintiffs appealed but in February 2012 the
California Court of Appeals granted the plaintiff's voluntary
dismissal of the appeal.
The Company has demonstrated in these past trial proceedings that
its respiratory protection products are effective as claimed when
used in the intended manner and in the intended circumstances.
Consequently the Company believes that claimants are unable to
establish that their medical conditions, even if significant, are
attributable to the Company's respiratory protection products.
Nonetheless the Company's litigation experience indicates that
claims of persons with malignant conditions are costlier to
resolve than the claims of unimpaired persons, and it therefore
believes the average cost of resolving pending and future claims
on a per-claim basis will continue to be higher than it
experienced in prior periods when the vast majority of claims were
asserted by the unimpaired.
The State of West Virginia, through its Attorney General, filed a
complaint in 2003 against the Company and two other manufacturers
of respiratory protection products in the Circuit Court of Lincoln
County, West Virginia and amended its complaint in 2005. The
amended complaint seeks substantial, but unspecified, compensatory
damages primarily for reimbursement of the costs allegedly
incurred by the State for worker's compensation and healthcare
benefits provided to all workers with occupational pneumoconiosis
and unspecified punitive damages. While the case has been inactive
since the fourth quarter of 2007, the Court held a case management
conference in March 2011, but no further activity has occurred in
the case since that conference. No liability has been recorded for
this matter because the Company believes that liability is not
probable and estimable at this time. In addition, the Company is
not able to estimate a possible loss or range of loss given the
minimal activity in this case and the fact that the complaint
asserts claims against two other manufacturers where a defendant's
share of liability may turn on the law of joint and several
liability and by the amount of fault a jury allocates to each
defendant if a case is ultimately tried."
3M Company operates as a diversified technology company worldwide.
Among others, the Company produces components and products used in
the manufacture, repair, and maintenance of automotive, marine,
aircraft, and specialty vehicles; provides medical and surgical
supplies; provides office supply, stationery, and consumer health
care products; offers personal protection products; offers optical
film solutions for LCD electronic displays; and provides packaging
and interconnection devices. The company was founded in 1902 and
is based in St. Paul, Minnesota.
ASBESTOS UPDATE: 3M Co. Had $104MM Reserves for Liabilities
-----------------------------------------------------------
3M Company in its Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarterly period ended March 31, 2012,
disclosed that the Company had reserves for respirator
mask/asbestos liabilities of $104 million.
The Company estimates its respirator mask/asbestos liabilities,
including the cost to resolve the claims and defense costs, by
examining: (i) the Company's experience in resolving claims, (ii)
apparent trends, (iii) the apparent quality of claims (e.g.,
whether the claim has been asserted on behalf of asymptomatic
claimants), (iv) changes in the nature and mix of claims (e.g.,
the proportion of claims asserting usage of the Company's mask or
respirator products and alleging exposure to each of asbestos,
silica, coal or other occupational dusts, and claims pleading use
of asbestos-containing products allegedly manufactured by the
Company), (v) the number of current claims and a projection of the
number of future asbestos and other claims that may be filed
against the Company, (vi) the cost to resolve recently settled
claims, and (vii) an estimate of the cost to resolve and defend
against current and future claims.
Developments may occur that could affect the Company's estimate of
its liabilities. These developments include, but are not limited
to, significant changes in (i) the number of future claims, (ii)
the average cost of resolving claims, (iii) the legal costs of
defending these claims and in maintaining trial readiness, (iv)
changes in the mix and nature of claims received, (v) trial and
appellate outcomes, (vi) changes in the law and procedure
applicable to these claims, and (vii) the financial viability of
other co-defendants and insurers.
As a result of the greater cost of resolving claims of persons
with more serious injuries, including mesothelioma and other
malignancies, the Company increased its reserves in the first
quarter of 2012 for respirator mask/asbestos liabilities by $17
million. As of March 31, 2012, the Company had reserves for
respirator mask/asbestos liabilities of $104 million (excluding
Aearo reserves). The Company cannot estimate the amount or range
of amounts by which the liability may exceed the reserve the
Company has established because of the (i) inherent difficulty in
projecting the number of claims that have not yet been asserted,
particularly with respect to the Company's respiratory products
that themselves did not contain any harmful materials, (ii) the
complaints nearly always assert claims against multiple defendants
where the damages alleged are typically not attributed to
individual defendants so that a defendant's share of liability may
turn on the law of joint and several liability, which can vary by
state, (iii) the multiple factors that the Company considers in
estimating its liabilities, and (iv) the several possible
developments that may occur that could affect the Company's
estimate of liabilities.
As of March 31, 2012, the Company's receivable for insurance
recoveries related to the respirator mask/asbestos litigation was
$124 million. During the first quarter of 2012, the Company
increased its receivables for insurance recoveries by $3 million
related to this litigation.
Various factors could affect the timing and amount of recovery of
this receivable, including (i) delays in or avoidance of payment
by insurers; (ii) the extent to which insurers may become
insolvent in the future, and (iii) the outcome of negotiations
with insurers and legal proceedings with respect to respirator
mask/asbestos liability insurance coverage. The difference
between the accrued liability and insurance receivable represents
in part the time delay between payment of claims on the one hand
and receipt of insurance reimbursements on the other hand.
Because of the lag time between settlement and payment of a claim,
no meaningful conclusions may be drawn from quarterly or annual
changes in the amount of receivables for expected insurance
recoveries or changes in the number of claimants.
On January 5, 2007 the Company was served with a declaratory
judgment action filed on behalf of two of its insurers
(Continental Casualty and Continental Insurance Co. -- both part
of the Continental Casualty Group) disclaiming coverage for
respirator mask/asbestos claims. These insurers represent
approximately $15 million of the $124 million insurance recovery
receivable. The action, pending in the District Court in Ramsey
County, Minnesota, seeks declaratory judgment regarding coverage
provided by the policies and the allocation of covered costs among
the policies issued by the various insurers. The action named, in
addition to the Company, over 60 of the Company's insurers. This
action is similar in nature to an action filed in 1994 with
respect to breast implant coverage, which ultimately resulted in
the Minnesota Supreme Court's ruling of 2003 that was largely in
the Company's favor. The plaintiff insurers have served an
amended complaint that names some additional insurers and deletes
others. A significant number of the insurer defendants named in
the amended complaint have been dismissed because of settlements
they have reached with 3M regarding the matters at issue in the
lawsuit. The case is currently in the discovery phase. Trial is
scheduled to begin in the fall of 2012. During the first quarter
of 2012, the Company reached settlements with several insurers
that will result in payments totaling approximately $28 million to
the Company over the next two years, most of which will be
received in 2012.
3M Company operates as a diversified technology company worldwide.
Among others, the Company produces components and products used in
the manufacture, repair, and maintenance of automotive, marine,
aircraft, and specialty vehicles; provides medical and surgical
supplies; provides office supply, stationery, and consumer health
care products; offers personal protection products; offers optical
film solutions for LCD electronic displays; and provides packaging
and interconnection devices. The company was founded in 1902 and
is based in St. Paul, Minnesota.
ASBESTOS UPDATE: 3M Co. Records $29MM Estimate for Aero Costs
-------------------------------------------------------------
A subsidiary of 3M Company on April 1, 2008, purchased the stock
of Aearo Holding Corp., the parent of Aearo Technologies. Aearo
manufactures and sells various products, including personal
protection equipment, such as eye, ear, head, face, fall and
certain respiratory protection products. As of March 31, 2012,
Aearo and/or other companies that previously owned and operated
Aearo's respirator business -- American Optical Corporation,
Warner-Lambert LLC, AO Corp. and Cabot Corporation -- are named
defendants, with multiple co-defendants, including the Company, in
numerous lawsuits in various courts in which plaintiffs allege use
of mask and respirator products and seek damages from Aearo and
other defendants for alleged personal injury from workplace
exposures to asbestos, silica-related, or other occupational dusts
found in products manufactured by other defendants or generally in
the workplace.
3M Company in its Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarterly period ended March 31, 2012,
disclosed that the Company, through its Aearo subsidiary, has
recorded $29 million as the best estimate of the probable
liabilities for product liabilities and defense costs related to
current and future Aearo-related asbestos and silica-related
claims. Responsibility for legal costs, as well as for settlements
and judgments, is currently shared in an informal arrangement
among Aearo, Cabot, American Optical Corporation and a subsidiary
of Warner Lambert and their insurers -- Payor Group. Liability is
allocated among the parties based on the number of years each
company sold respiratory products under the "AO Safety" brand
and/or owned the AO Safety Division of American Optical
Corporation and the alleged years of exposure of the individual
plaintiff. Aearo's share of the contingent liability is further
limited by an agreement entered into between Aearo and Cabot on
July 11, 1995. This agreement provides that, so long as Aearo pays
to Cabot an annual fee of $400,000, Cabot will retain
responsibility and liability for, and indemnify Aearo against,
asbestos and silica-related product liability claims for
respirators manufactured prior to July 11, 1995. Because the date
of manufacture for a particular respirator allegedly used in the
past is often difficult to determine, Aearo and Cabot have applied
the agreement to claims arising out of the alleged use of
respirators while exposed to asbestos or silica or products
containing asbestos or silica prior to January 1, 1997. With these
arrangements in place, Aearo's potential liability is limited to
exposures alleged to have arisen from the use of respirators while
exposed to asbestos, silica or other occupational dusts on or
after January 1, 1997. In March 2012, Cabot CSC Corporation and
Cabot Corporation filed a lawsuit against Aearo in the Superior
Court of Suffolk County, Massachusetts seeking declaratory relief
as to the scope of Cabot's indemnity obligations under the July
11, 1995 agreement, including whether Cabot has retained liability
for coal workers' pneumoconiosis claims, and seeking damages for
breach of contract.
To date, Aearo has elected to pay the annual fee. Aearo could
potentially be exposed to additional claims for some part of the
pre-July 11, 1995 period covered by its agreement with Cabot if
Aearo elects to discontinue its participation in this arrangement,
or if Cabot is no longer able to meet its obligations in these
matters.
Developments may occur that could affect the estimate of Aearo's
liabilities. These developments include, but are not limited to:
(i) significant changes in the number of future claims, (ii)
significant changes in the average cost of resolving claims, (iii)
significant changes in the legal costs of defending these claims,
(iv) significant changes in the mix and nature of claims received,
(v) trial and appellate outcomes, (vi) significant changes in the
law and procedure applicable to these claims, (vii) significant
changes in the liability allocation among the co-defendants,
(viii) the financial viability of members of the Payor Group
including exhaustion of available coverage limits, (ix) the
outcome of pending insurance coverage litigation among certain
other members of the Payor Group and their respective insurers,
and/or (x) a determination that the interpretation of the
contractual obligations on which Aearo has estimated its share of
liability is inaccurate. The Company cannot determine the impact
of these potential developments on its current estimate of Aearo's
share of liability for these existing and future claims. If any of
the developments were to occur, the actual amount of these
liabilities for existing and future claims could be significantly
larger than the reserved amount.
Because of the inherent difficulty in projecting the number of
claims that have not yet been asserted, the complexity of
allocating responsibility for future claims among the Payor Group,
and the several possible developments that may occur that could
affect the estimate of Aearo's liabilities, the Company cannot
estimate the amount or range of amounts by which Aearo's liability
may exceed the reserve the Company has established.
3M Company operates as a diversified technology company worldwide.
Among others, the Company produces components and products used in
the manufacture, repair, and maintenance of automotive, marine,
aircraft, and specialty vehicles; provides medical and surgical
supplies; provides office supply, stationery, and consumer health
care products; offers personal protection products; offers optical
film solutions for LCD electronic displays; and provides packaging
and interconnection devices. The company was founded in 1902 and
is based in St. Paul, Minnesota.
ASBESTOS UPDATE: Westinghouse Air Brake Still Faces Claims
----------------------------------------------------------
Westinghouse Air Brake Technologies Corporation in its Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarterly period ended March 31, 2012, discloses that claims have
been filed against the Company and certain of its affiliates in
various jurisdictions across the United States by persons alleging
bodily injury as a result of exposure to asbestos-containing
products.
The Company states: "Most of these claims have been made against
our wholly owned subsidiary, Railroad Friction Products
Corporation ("RFPC"), and are based on a product sold by RFPC
prior to the time that the Company acquired any interest in RFPC.
Most of these claims, including all of the RFPC claims, are
submitted to insurance carriers for defense and indemnity or to
non-affiliated companies that retain the liabilities for the
asbestos-containing products at issue. We cannot, however, assure
that all these claims will be fully covered by insurance or that
the indemnitors or insurers will remain financially viable. Our
ultimate legal and financial liability with respect to these
claims, as is the case with other pending litigation, cannot be
estimated.
"It is Management's belief that the potential range of loss for
asbestos-related bodily injury cases is not reasonably
determinable at present due to a variety of factors, including:
(1) the asbestos case settlement history of the Company's wholly
owned subsidiary, RFPC; (2) the unpredictable nature of personal
injury litigation in general; and (3) the uncertainty of asbestos
litigation in particular. Despite this uncertainty, and although
the results of the Company's operations and cash flows for any
given period could be adversely affected by asbestos-related
lawsuits, Management believes that the final resolution of the
Company's asbestos-related cases will not be material to the
Company's overall financial position, results of operations and
cash flows. In general, this belief is based upon: (1) Wabtec's
and RFPC's history of settlements and dismissals of asbestos-
related cases to date; (2) the inability of many plaintiffs to
establish any exposure or causal relationship to RFPC's product;
and (3) the inability of many plaintiffs to demonstrate any
identifiable injury or compensable loss.
"More specifically, as to RFPC, Management's belief that any
losses due to asbestos-related cases would not be material is also
based on the fact that RFPC owns insurance which provides coverage
for asbestos-related bodily injury claims. To date, RFPC's
insurers have provided RFPC with defense and indemnity in these
actions. The overall number of new claims being filed against RFPC
has dropped significantly in recent years; however, these new
claims, and all previously filed claims, may take a significant
period of time to resolve. As to Wabtec and its divisions,
Management's belief that asbestos-related cases will not have a
material impact is also based on its position that it has no legal
liability for asbestos-related bodily injury claims, and that the
former owners of Wabtec's assets retained asbestos liabilities for
the products at issue. To date, Wabtec has been able to
successfully defend itself on this basis, including two
arbitration decisions and a judicial opinion, all of which
confirmed Wabtec's position that it did not assume any asbestos
liabilities from the former owners of certain Wabtec assets.
Although Wabtec has incurred defense and administrative costs in
connection with asbestos bodily injury actions, these costs have
not been material, and the Company has no information that would
suggest these costs would become material in the foreseeable
future."
Westinghouse Air Brake Technologies Corporation is a provider of
value-added, technology-based products and services for the global
rail industry. Its products are found on virtually all U.S.
locomotives, freight cars and passenger transit vehicles, as well
as in more than 100 countries throughout the world.
ASBESTOS UPDATE: W.R. Grace Recorded Liability Still at $1.7BB
--------------------------------------------------------------
W. R. Grace & Co. is a defendant in property damage and personal
injury lawsuits relating to previously sold asbestos-containing
products. As of its bankruptcy filing, Grace was a defendant in
65,656 asbestos-related lawsuits, 17 involving claims for property
damage (one of which has since been dismissed), and the remainder
involving 129,191 claims for personal injury.
Out of 380 asbestos property damage cases (which involved
thousands of buildings) filed prior to the bankruptcy filing, 16
remain unresolved. Eight cases relate to Zonolite(R) Attic
Insulation, a former Grace attic insulation product, and eight
relate to a number of former asbestos-containing products (two of
which also are alleged to involve ZAI). As of March 31, 2012,
approximately 430 PD Claims subject to the March 31, 2003 claims
bar date remain outstanding. The Bankruptcy Court has approved
settlement agreements covering approximately 410 of such claims
for an aggregate allowed amount of $151.6 million. Approximately
17,960 U.S. ZAI PD Claims were filed prior to the October 31, 2008
claims bar date, and as of March 31, 2012 an additional 1,310 U.S.
ZAI PD Claims were filed.
As of the bankruptcy filing, 129,191 PI Claims were pending
against Grace. Grace believes that a substantial number of
additional PI Claims would have been received between the Filing
Date and March 31, 2012, had such PI Claims not been stayed by the
Bankruptcy Court.
The total recorded asbestos-related liability as of March 31, 2012
and December 31, 2011, including pre-Filing Date and post-Filing
Date settlements, was $1,700.0 million.
Appeals have been filed and further appeals may be filed in the
federal appellate court challenging the District Court order
confirming the Joint Plan.
As of March 31, 2012, excluding the effect of settlements that are
dependent upon the effectiveness of the Joint Plan and after
subtracting previous reimbursements by insurers and allowing for
discounts pursuant to certain settlement agreements that are not
dependent upon the effectiveness of the Joint Plan, there remains
approximately $970.0 million of excess coverage from 54 presently
solvent insurers. Grace estimates that eligible claims would have
to exceed $4.0 billion to access total coverage.
No further updates were reported in the Company's Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarterly
period ended March 31, 2012.
W. R. Grace & Co., through its subsidiaries, is engaged in
specialty chemicals and specialty materials businesses on a global
basis through three operating segments: Grace Catalysts
Technologies, which includes catalysts and related products used
in refining, petrochemical and other chemical manufacturing
applications; Grace Materials Technologies, which includes
packaging technologies and engineered materials, used in consumer,
industrial, and pharmaceutical applications and; Grace
Construction Products, which includes specialty construction
chemicals and specialty building materials used in commercial,
infrastructure and residential construction.
ASBESTOS UPDATE: CH Energy Had 1,158 Pending Cases at March 31
--------------------------------------------------------------
CH Energy Group, Inc., and Central Hudson Gas & Electric
Corporation in their Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarterly period ended March 31, 2012,
disclose that of the 3,330 asbestos cases brought against Central
Hudson, 1,158 remain pending. Of the cases no longer pending
against Central Hudson, 2,017 have been dismissed or discontinued
without payment by Central Hudson, and Central Hudson has settled
155 cases. Central Hudson is presently unable to assess the
validity of the remaining asbestos lawsuits; however, based on
information known to Central Hudson at this time, including
Central Hudson's experience in settling asbestos cases and in
obtaining dismissals of asbestos cases, Central Hudson believes
that the costs which may be incurred in connection with the
remaining lawsuits will not have a material adverse effect on the
financial position, results of operations or cash flows of either
CH Energy Group or Central Hudson.
CH Energy Group, Inc., is a holding company. The Company's wholly
owned subsidiaries include Central Hudson Gas & Electric
Corporation (Central Hudson) and Central Hudson Enterprises
Corporation (CHEC). Central Hudson is a regulated electric and
natural gas subsidiary. CHEC, the parent company of CH Energy
Group's unregulated businesses and investments, has one wholly
owned subsidiary, Griffith Energy Services, Inc.
ASBESTOS UPDATE: Meritor's Maremont Has 21K Pending Claims
----------------------------------------------------------
Maremont Corporation, a subsidiary of Meritor, Inc., manufactured
friction products containing asbestos from 1953 through 1977, when
it sold its friction product business. Arvin Industries, Inc., a
predecessor of the company, acquired Maremont in 1986. Maremont
and many other companies are defendants in suits brought by
individuals claiming personal injuries as a result of exposure to
asbestos-containing products. Maremont had approximately 21,000
pending asbestos-related claims at March 31, 2012 and September
30, 2011. Although Maremont has been named in these cases, in the
cases where actual injury has been alleged, very few claimants
have established that a Maremont product caused their injuries.
Plaintiffs' lawyers often sue dozens or even hundreds of
defendants in individual lawsuits on behalf of hundreds or
thousands of claimants, seeking damages against all named
defendants irrespective of the disease or injury and irrespective
of any causal connection with a particular product. For these
reasons, Maremont does not consider the number of claims filed or
the damages alleged to be a meaningful factor in determining its
asbestos-related liability.
Meritor, Inc., in its Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarterly period ended April 1,
2012, disclosed Maremont's asbestos-related reserves and
corresponding asbestos-related recoveries are (in millions):
March 31, 2012 Sept. 30, 2011
-------------- --------------
Pending and future claims $75 $77
Asbestos-related insurance recoveries 67 67
Prior to February 2001, Maremont participated in the Center for
Claims Resolution and shared with other CCR members in the payment
of defense and indemnity costs for asbestos-related claims. The
CCR handled the resolution and processing of asbestos claims on
behalf of its members until February 2001, when it was reorganized
and discontinued negotiating shared settlements. Since the CCR was
reorganized in 2001, Maremont has handled asbestos-related claims
through its own defense counsel and has taken a more aggressive
defensive approach that involves examining the merits of each
asbestos-related claim. Although the company expects legal defense
costs to continue at higher levels than when it participated in
the CCR, the company believes its litigation strategy has reduced
the average indemnity cost per claim.
Maremont engages Bates White LLC (Bates White), a consulting firm
with extensive experience estimating costs associated with
asbestos litigation, to assist with determining the estimated cost
of resolving pending and future asbestos-related claims that have
been, and could reasonably be expected to be, filed against
Maremont. Bates White prepares these cost estimates on a semi-
annual basis in March and September each year. Although it is not
possible to estimate the full range of costs because of various
uncertainties, Bates White advised Maremont that it would be
possible to determine an estimate of a reasonable forecast of the
cost of the probable settlement and defense costs of resolving
pending and future asbestos-related claims, based on historical
data and certain assumptions with respect to events that may occur
in the future.
Bates White provided an estimate of the reasonably possible range
of Maremont's obligation for asbestos personal injury claims over
the next ten years of $75 million to $85 million. After
consultation with Bates White, Maremont determined that as of
March 31, 2012, the most likely and probable liability for pending
and future claims over the next 10 years is $75 million. The
ultimate cost of resolving pending and future claims is estimated
based on the history of claims and expenses for plaintiffs
represented by law firms in jurisdictions with an established
history with Maremont.
Maremont has insurance that reimburses a substantial portion of
the costs incurred defending against asbestos-related claims. The
coverage also reimburses Maremont for any indemnity paid on those
claims. The coverage is provided by several insurance carriers
based on insurance agreements in place. Incorporating historical
information with respect to buy-outs and settlements of coverage,
and excluding any policies in dispute, the insurance receivable
related to asbestos-related liabilities is $67 million as of March
31, 2012.
Meritor, Inc., headquartered in Troy, Michigan, is a premier
global supplier of a broad range of integrated systems, modules
and components to original equipment manufacturers ("OEMs") and
the aftermarket for the commercial vehicle, transportation and
industrial sectors. The company serves commercial truck, trailer,
off-highway, military, bus and coach and other industrial OEMs and
certain aftermarkets.
ASBESTOS UPDATE: Meritor Has $21MM Rockwell-Related Liability
-------------------------------------------------------------
ArvinMeritor, Inc. (AM), a subsidiary of Meritor, Inc., along with
many other companies, has also been named as a defendant in
lawsuits alleging personal injury as a result of exposure to
asbestos used in certain components of Rockwell International
(Rockwell) products many years ago. Liability for these claims was
transferred at the time of the spin-off of the automotive business
from Rockwell in 1997. Currently there are thousands of claimants
in lawsuits that name AM, together with many other companies, as
defendants. However, the company does not consider the number of
claims filed or the damages alleged to be a meaningful factor in
determining asbestos-related liabilities. A significant portion of
the claims do not identify any of Rockwell's products or specify
which of the claimants, if any, were exposed to asbestos
attributable to Rockwell's products, and past experience has shown
that the vast majority of the claimants will likely never identify
any of Rockwell's products. For those claimants who do show that
they worked with Rockwell's products, management nevertheless
believes it has meritorious defenses, in substantial part due to
the integrity of the products involved and the lack of any
impairing medical condition on the part of many claimants. The
company defends these cases vigorously. Historically, AM has been
dismissed from the vast majority of similar claims filed in the
past with no payment to claimants.
The company engages Bates White to assist with determining whether
it would be possible to estimate the cost of resolving pending and
future Rockwell legacy asbestos-related claims that have been, and
could reasonably be expected to be, filed against the company.
Although it is not possible to estimate the full range of costs
because of various uncertainties, Bates White advised the company
that it would be able to determine an estimate of probable defense
and indemnity costs which could be incurred to resolve pending and
future Rockwell legacy asbestos-related claims. After consultation
with Bates White, the company determined that as of March 31, 2012
and September 30, 2011 the probable liability for pending and
future claims over the next four years is $21 million and $19
million, respectively. The accrual estimates are based on
historical data and certain assumptions with respect to events
that may occur in the future. The uncertainties of asbestos claim
litigation and resolution of the litigation with the insurance
companies make it difficult to predict accurately the ultimate
resolution of asbestos claims beyond four years. That uncertainty
is increased by the possibility of adverse rulings or new
legislation affecting asbestos claim litigation or the settlement
process.
Rockwell maintained insurance coverage that management believes
covers indemnity and defense costs, over and above self-insurance
retentions, for most of these claims. The company has initiated
claims against certain of these carriers to enforce the insurance
policies, which are currently being disputed. The company expects
to recover some portion of defense and indemnity costs it has
incurred to date, over and above self-insured retentions, and some
portion of the costs for defending asbestos claims going forward.
Based on consultation with advisors and underlying analysis
performed by management, the company has recorded an insurance
receivable related to Rockwell legacy asbestos-related liabilities
of $7 million and $9 million at March 31, 2012 and September 30,
2011, respectively. If the assumptions with respect to the nature
of pending claims, the cost to resolve claims and the amount of
available insurance prove to be incorrect, the actual amount of
liability for Rockwell asbestos-related claims, and the effect on
the company, could differ materially from current estimates and,
therefore, could have a material impact on the company's financial
condition and results of operations.
No further updates were reported in Meritor, Inc.'s Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarterly period ended April 1, 2012.
Meritor, Inc., headquartered in Troy, Michigan, is a premier
global supplier of a broad range of integrated systems, modules
and components to original equipment manufacturers ("OEMs") and
the aftermarket for the commercial vehicle, transportation and
industrial sectors. The company serves commercial truck, trailer,
off-highway, military, bus and coach and other industrial OEMs and
certain aftermarkets.
ASBESTOS UPDATE: Meritor Considering Options in "Bankhead" Ruling
-----------------------------------------------------------------
Meritor, Inc., is considering its options in the lawsuit initiated
by Gordon Bankhead after the California Court of Appeals affirmed
a trial court judgment against the Company, according to the
Company's Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarterly period ended April 1, 2012.
On March 4, 2010, Gordon Bankhead and his spouse filed suit in
Superior Court for Alameda County, California, against more than
40 defendants that Mr. Bankhead claims manufactured or supplied
asbestos-containing products he allegedly was exposed to during
his career as a janitor; as an ordnance specialist in the National
Guard; and as an automotive parts-man. By the time trial began on
October 27, 2010, Mr. and Mrs. Bankhead had settled with all
defendants except for the company and three other defendants. The
claims against these four defendants were limited to Mr.
Bankhead's work as an automotive parts-man. On December 23, 2010,
the jury ruled against all four defendants, including the company.
The company was assessed $375,000 in compensatory damages for
which it has recorded a liability at March 31, 2012. Additionally,
the company was assessed $4.5 million in punitive damages.
The company filed an appeal on the punitive damages award to the
California Court of Appeals. Possible outcomes of the appeal
included vacating the damages award in its entirety, reducing the
award, affirming the award in its entirety or remanding the case
back to the trial court. Accordingly, the possible estimated range
of loss at September 30, 2011 was $0 to $4.5 million. Because of
the uncertainty associated with the litigation including the
appeal process, the company was previously unable to determine an
estimate within this range which was considered more probable than
others and accordingly did not record any liability for punitive
damages at September 30, 2011.
On April 19, 2012, the California Court of Appeals issued its
opinion, affirming the trial court judgment in full. The company
is considering its options, but given the opinion issued by the
California Court of Appeals in April 2012, the company increased
its liability for this matter from $375,000 to $5.6 million at
March 31, 2012.
Meritor, Inc., headquartered in Troy, Michigan, is a premier
global supplier of a broad range of integrated systems, modules
and components to original equipment manufacturers ("OEMs") and
the aftermarket for the commercial vehicle, transportation and
industrial sectors. The company serves commercial truck, trailer,
off-highway, military, bus and coach and other industrial OEMs and
certain aftermarkets.
ASBESTOS UPDATE: Pepco Dropped From Consolidated Suit in March
--------------------------------------------------------------
In 1993, Potomac Electric Power Company, a subsidiary of Pepco
Holdings, Inc., was served with Amended Complaints filed in the
state Circuit Courts of Prince George's County, Baltimore City and
Baltimore County, Maryland in separate ongoing, consolidated
proceedings known as "In re: Personal Injury Asbestos Case." Pepco
and other corporate entities were brought into these cases on a
theory of premises liability. Under this theory, the plaintiffs
argued that Pepco was negligent in not providing a safe work
environment for employees or its contractors, who allegedly were
exposed to asbestos while working on Pepco's property. Initially,
a total of approximately 448 individual plaintiffs added Pepco to
their complaints. While the pleadings were not entirely clear, it
appeared that each plaintiff sought $2 million in compensatory
damages and $4 million in punitive damages from each defendant. In
the intervening years, most of the cases were voluntarily
dismissed by the plaintiffs prior to their respective trial dates.
At the beginning of the first quarter of 2012, there were
approximately 90 cases pending against Pepco in the Maryland State
Courts (excluding those tendered to Mirant Corporation for defense
and indemnification in connection with the sale by Pepco of its
generation assets to Mirant in 2000), with an aggregate amount of
monetary damages sought of approximately $360 million. On March 1,
2012, the parties to these consolidated proceedings (each
represented by the same law firm) filed a stipulation of
dismissal, by which the plaintiffs voluntarily dismissed Pepco as
a defendant, eliminating any reasonably possible liability Pepco
may have had with respect to these proceedings.
No further updates were reported in the Company's Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended March 31, 2012.
Pepco Holdings, Inc. (PHI or Pepco Holdings), is a holding company
that, through the following regulated public utility subsidiaries,
is engaged primarily in the transmission, distribution and default
supply of electricity and, to the lesser extent, the distribution
and supply of natural gas (Power Delivery): Potomac Electric Power
Company (Pepco), Delmarva Power & Light Company (DPL), and
Atlantic City Electric Company (ACE).
ASBESTOS UPDATE: Pepco's ACE Unit Still Defends Suit in N.J.
------------------------------------------------------------
Atlantic City Electric Company, a subsidiary of Pepco Holdings,
Inc., continues to defend an asbestos-related lawsuit in New
Jersey, according to the Company's Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended
March 31, 2012.
In September 2011, an asbestos complaint was filed in the New
Jersey Superior Court, Law Division, against ACE (among other
defendants) asserting claims under New Jersey's Wrongful Death and
Survival statutes. The complaint, filed by the estate of a
decedent who was the wife of a former employee of ACE, alleges
that the decedent's mesothelioma was caused by exposure to
asbestos brought home by her husband on his work clothes. Unlike
the other jurisdictions to which PHI subsidiaries are subject, New
Jersey courts have recognized a cause of action against a premise
owner in a so-called "take home" case if it can be shown that the
harm was foreseeable. In this case, the complaint seeks recovery
of an unspecified amount of damages for, among other things, the
decedent's past medical expenses, loss of earnings, and pain and
suffering between the time of injury and death, and asserts a
punitive damage claim. At this time, ACE has concluded that a loss
is reasonably possible with respect to this matter, but ACE was
unable to estimate an amount or range of reasonably possible loss
because (i) the damages sought are indeterminate, (ii) the
proceedings are in the early stages, and (iii) the matter involves
facts that ACE believes are distinguishable from the facts of the
"take home" cause of action recognized by the New Jersey courts.
Pepco Holdings, Inc. (PHI or Pepco Holdings), is a holding company
that, through the following regulated public utility subsidiaries,
is engaged primarily in the transmission, distribution and default
supply of electricity and, to the lesser extent, the distribution
and supply of natural gas (Power Delivery): Potomac Electric Power
Company (Pepco), Delmarva Power & Light Company (DPL), and
Atlantic City Electric Company (ACE).
ASBESTOS UPDATE: Ashland Had 69,000 Open Claims at March 31
-----------------------------------------------------------
Ashland Inc. in its Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarterly period ended March 31,
2012, relates that the claims alleging personal injury caused by
exposure to asbestos asserted against Ashland result primarily
from indemnification obligations undertaken in 1990 in connection
with the sale of Riley Stoker Corporation, a former subsidiary.
The amount and timing of settlements and number of open claims can
fluctuate significantly from period to period. At March 31, 2012,
there were 69,000 open claims against Ashland.
Total reserves for Ashland's asbestos claims were $524 million at
March 31, 2012 compared to $543 million at September 30, 2011.
During 2010, Ashland entered into a new agreement with a number of
London market insurance companies with respect to coverage for
asbestos-related insurance claims. As a result, a $12 million
increase to the Ashland asbestos receivable was recorded within
the Condensed Consolidated Balance Sheet, which had a $9 million
(after-tax) effect on the Statement of Consolidated Income within
the discontinued operations caption. During the six months ended
March 2012, Ashland received $7 million in cash after reaching a
settlement with certain insolvent London market insurance
companies. The cash received from this settlement during the
current period was recognized as an after-tax gain of $6 million
within discontinued operations of the Statement of Consolidated
Income since Ashland's policy is to not record asbestos
receivables for any carriers that are insolvent.
In addition, Ashland had agreed to arbitrate a dispute regarding
whether there is a significant deductible in the London market
companies' policies in three policy periods that must be satisfied
before the policies begin providing coverage for Riley Stoker
asbestos claims. The London market companies had contended that
Ashland must bear certain self-insured retentions in respect of
Riley Stoker asbestos liabilities before the London coverage
attaches in these three years, and Ashland disputed that such
self-insured retentions must be satisfied. The parties conducted
an arbitration hearing on this dispute in June 2011, and a
decision was rendered by the arbitrator in October 2011 that
essentially supported Ashland's previously stated position on
these claims.
At March 31, 2012, Ashland's receivable for recoveries of
litigation defense and claim settlement costs from insurers
amounted to $414 million (excluding the Hercules receivable for
asbestos claims), of which $55 million relates to costs previously
paid. Receivables from insurers amounted to $431 million at
September 30, 2011. During 2011, the model used for purposes of
valuing the asbestos reserve, and its impact on valuation of
future recoveries from insurers, was updated. This model update
along with the potential settlement adjustments resulted in an
additional $42 million increase in the receivable for probable
insurance recoveries.
Ashland Inc. operates as a specialty chemicals company in the
United States and internationally.
ASBESTOS UPDATE: Ashland Unit Had 21,000 Open Claims at March 31
----------------------------------------------------------------
Ashland Inc. in its Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarterly period ended March 31,
2012, relates that its wholly-owned subsidiary Hercules has
liabilities from claims alleging personal injury caused by
exposure to asbestos. Such claims typically arise from alleged
exposure to asbestos fibers from resin encapsulated pipe and tank
products which were sold by one of Hercules' former subsidiaries
to a limited industrial market. The amount and timing of
settlements and number of open claims can fluctuate significantly
from period to period. At March 31, 2012, open claims against
Hercules were 21,000.
Total reserves for Hercules asbestos claims were $300 million at
March 31, 2012 compared to $311 million at September 30, 2011.
As of March 31, 2012 and September 30, 2011, the receivables from
insurers amounted to $47 million and $48 million, respectively.
Ashland Inc. operates as a specialty chemicals company in the
United States and internationally.
ASBESTOS UPDATE: Great Lakes Continues to Defend 37 PI Lawsuits
---------------------------------------------------------------
Great Lakes Dredge & Dock Corporation continues to defend itself
against 37 pending asbestos-related personal injury lawsuits,
according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
March 31, 2012.
The Company or its former subsidiary, NATCO Limited Partnership,
was named as a defendant in approximately 251 asbestos-related
personal injury lawsuits, the majority of which were filed between
1989 and 2000. The claims were filed on behalf of seamen or their
personal representatives alleging injury or illness from exposure
to asbestos while employed as seamen on Company-owned vessels. In
these cases, the Company is typically one of many defendants,
including manufacturers and suppliers of products containing
asbestos, as well as other vessel owners. Following certain
administrative proceedings, counsel for plaintiffs agreed to name
a group of cases that they intended to pursue and to dismiss the
remaining cases without prejudice. Plaintiffs previously named 40
cases against the Company that they intended to pursue, each of
which involves one plaintiff. The remaining cases against the
Company were dismissed without prejudice. Plaintiffs in the
dismissed cases could file a new lawsuit if they develop a new
disease allegedly caused by exposure to asbestos on board our
vessels. Of the 40 named cases, three were subsequently dismissed,
leaving 37 cases remaining. The Company is presently unable to
quantify the amounts of damages being sought in the remaining
lawsuits because none of the complaints specify a damage amount.
Based on preliminary discovery and settlement demands received to
date, the Company does not believe that it is probable that losses
from these claims could be material, and an estimate of a range of
losses relating to these claims cannot reasonably be made. Based
on the foregoing, management does not believe that any of the
remaining 37 lawsuits, individually or in the aggregate, will have
a material impact on our business, financial position, results of
operations or cash flows.
Great Lakes Dredge & Dock Corporation engages in the business of
marine construction, primarily dredging, and commercial and
industrial demolition primarily in the east, west, and Gulf Coasts
of the United States.
ASBESTOS UPDATE: 11,500 Cases Pending v. Mallinckrodt at March 31
-----------------------------------------------------------------
Covidien Plc in its Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarterly period ended March 30, 2012,
disclosed that as of March 30, 2012, there were approximately
11,500 asbestos liability cases pending against Mallinckrodt Inc.
Mallinckrodt Inc. is named as a defendant in personal injury
lawsuits based on alleged exposure to asbestos-containing
materials. A majority of the cases involve product liability
claims, based principally on allegations of past distribution of
products incorporating asbestos. A very limited number of the
cases allege premises liability, based on claims that individuals
were exposed to asbestos while on Mallinckrodt's property. Each
case typically names dozens of corporate defendants in addition to
Mallinckrodt. The complaints generally seek monetary damages for
personal injury or bodily injury resulting from alleged exposure
to products containing asbestos.
The Company's involvement in asbestos cases has been limited
because Mallinckrodt did not mine or produce asbestos.
Furthermore, in the Company's experience, a large percentage of
these claims have never been substantiated and have been dismissed
by the courts. The Company has not suffered an adverse verdict in
a trial court proceeding related to asbestos claims, and intends
to continue to vigorously defend these lawsuits. When appropriate,
the Company settles claims; however, amounts paid to settle and
defend all asbestos claims have been immaterial. As of March 30,
2012, there were approximately 11,500 asbestos liability cases
pending against Mallinckrodt.
The Company estimates pending asbestos claims and claims that were
incurred but not reported, as well as related insurance
recoveries. The Company's estimate of its liability for pending
and future claims is based on claims experience over the past five
years and covers claims either currently filed or expected to be
filed over the next seven years. The Company believes that it has
adequate amounts recorded related to these matters. While it is
not possible at this time to determine with certainty the ultimate
outcome of these asbestos-related proceedings, the Company
believes that the final outcome of all known and anticipated
future claims, after taking into account amounts already accrued
and insurance coverage, will not have a material adverse effect on
its results of operations, financial condition or cash flows.
Covidien Public Limited Company develops, manufactures, and sells
healthcare products for use in clinical and home settings in the
United States and internationally.
ASBESTOS UPDATE: Brunswick Unit Faced 2,500 Suits at End 2011
-------------------------------------------------------------
Brunswick Corporation in its Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
March 31, 2012, relates that as of the end of calendar year 2011,
Brunswick's subsidiary, Old Orchard Industrial Corp., was a
defendant in more than 2,500 lawsuits involving claims of asbestos
exposure from products manufactured by Vapor Corporation, a former
subsidiary divested by the Company in 1990. Almost all of the
lawsuits pending at the end of 2011 have been dismissed or are
expected to be dismissed shortly. The dismissals, without payment
by Old Orchard Industrial Corp., are based on the February 2012
decision by the United States Supreme Court in Kurns v. Railroad
Friction Products Corp. A small number of cases may remain
pending, but the Company does not believe the outcome of these
lawsuits will have a material adverse effect on the Company's
consolidated financial position or results of operations.
Brunswick Corporation designs, manufactures, and markets
recreation products worldwide.
ASBESTOS UPDATE: BNSF Railway Continues to Defend Exposure Claims
-----------------------------------------------------------------
BNSF Railway Company in its Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
March 31, 2012, relates it is party to a number of personal injury
claims by employees and non-employees who may have been exposed to
asbestos. The heaviest exposure for BNSF Railway employees was due
to work conducted in and around the use of steam locomotive
engines that were phased out between the years of 1950 and 1967.
However, other types of exposures, including exposure from
locomotive component parts and building materials, continued after
1967 until they were substantially eliminated at BNSF Railway by
1985.
BNSF Railway assesses its unasserted asbestos liability exposure
on an annual basis during the third quarter. BNSF Railway
determines its asbestos liability by estimating its exposed
population, the number of claims likely to be filed, the number of
claims that will likely require payment and the estimated cost per
claim. Estimated filing and dismissal rates and average cost per
claim are determined utilizing recent claim data and trends.
Throughout the year, BNSF Railway monitors actual experience
against the number of forecasted claims and expected claim
payments and will record adjustments to the Company's estimates as
necessary.
Based on BNSF Railway's estimate of the potentially exposed
employees and related mortality assumptions, it is anticipated
that unasserted asbestos claims will continue to be filed through
the year 2050. The Company recorded an amount for the full
estimated filing period through 2050 because it had a relatively
finite exposed population (former and current employees hired
prior to 1985), which it was able to identify and reasonably
estimate and about which it had obtained reliable demographic data
(including age, hire date and occupation) derived from industry or
BNSF Railway specific data that was the basis for the study. BNSF
Railway projects that approximately 60, 80 and 95 percent of the
future unasserted asbestos claims will be filed within the next
10, 15 and 25 years, respectively.
BNSF Railway operates one of the largest railroad networks in
North America. A wholly-owned subsidiary of Burlington Northern
Santa Fe, the company provides freight transportation over a
network of about 32,000 route miles of track across two-thirds of
the western US and two provinces in Canada. About 23,000 miles of
that track are company owned, while the remainder is owned and
permitted by other railroads.
ASBESTOS UPDATE: ITT Corp. Had 95,682 Open Claims at March 31
-------------------------------------------------------------
ITT Corporation in its Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarterly period ended March 31,
2012, disclosed it had 95,682 open claims alleging injury as a
result of exposure to asbestos.
The Company states: "ITT, including its subsidiary Goulds Pumps,
Inc., has been joined as a defendant with numerous other companies
in product liability lawsuits alleging personal injury due to
asbestos exposure. These claims allege that certain products sold
by us or our subsidiaries prior to 1985 contained a part
manufactured by a third party (e.g., a gasket) which contained
asbestos. To the extent these third-party parts may have contained
asbestos, it was encapsulated in the gasket (or other) material
and was non-friable. In certain other cases, it is alleged that
former ITT companies were distributors for other manufacturers'
products that may have contained asbestos.
"As of March 31, 2012, there were 95,682 open claims against ITT,
including Goulds Pumps, filed in various state and federal courts
alleging injury as a result of exposure to asbestos.
"Frequently, plaintiffs are unable to identify any ITT or Goulds
Pumps product as a source of asbestos exposure. In addition, in a
large majority of claims pending against the Company, plaintiffs
are unable to demonstrate any injury. Many of the pending claims
have been placed on inactive dockets (including 29,429 claims in
Mississippi). Our experience to date is that a substantial portion
of resolved claims are dismissed without payment by the Company.
As a result, management believes that a large majority of the
pending claims have little or no value. In the first quarter of
2012, approximately 10,000 pending claims, substantially all of
which were filed in Mississippi and were inactive, were dismissed.
Because claims are sometimes dismissed in large groups, the
average cost per resolved claim as well as the number of open
claims can fluctuate significantly from period to period."
ITT Corporation is a global industrial company specializing in the
engineering and manufacture of critical components in the
industrial, transportation, energy and aerospace markets.
ASBESTOS UPDATE: ITT Corp. Suit v. Travelers Remain Pending
-----------------------------------------------------------
ITT Corporation in its Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarterly period ended March 31,
2012, disclosed that its lawsuit against Travelers Casualty and
Surety Company over asbestos claims is still pending.
The Company states: "On February 13, 2003, we commenced an action,
Cannon Electric, Inc. v. Affiliated FM Ins. Co., Sup. Ct., Los
Angeles County, seeking recovery of costs related to asbestos
product liability losses. During this coverage litigation, we
entered into coverage-in-place settlement agreements with ACE,
Wausau and Utica Mutual dated April 2004, September 2004, and
February 2007, respectively. These agreements provide specific
coverage for the Company's legacy asbestos liabilities. In the
first quarter of 2012, Goulds Pumps agreed to resolve its claims
against Fireman's Fund and reached an agreement-in-principle to
resolve its claims with another insurer. In January 2012, ITT and
Goulds Pumps filed a putative class action against Travelers
Casualty and Surety Company (ITT Corporation and Goulds Pumps,
Inc., v. Travelers Casualty and Surety Company (f/k/a Aetna
Casualty and Surety Company)), alleging that Travelers is
unilaterally reinterpreting language contained in older Aetna
policies so as to avoid paying on asbestos claims. We continue to
negotiate settlement agreements with other insurers, where
appropriate."
ITT Corporation is a global industrial company specializing in the
engineering and manufacture of critical components in the
industrial, transportation, energy and aerospace markets.
ASBESTOS UPDATE: Crane Co. Had 57,398 Pending Claims at March 31
----------------------------------------------------------------
Crane Co. in its Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarterly period ended March 31, 2012,
disclosed that it remains a defendant in cases filed in numerous
state and federal courts alleging injury or death as a result of
exposure to asbestos and it has 57,398 pending claims.
The Company states: "As of January 1, 2010, the Company was named
in 36,448 maritime actions which had been administratively
dismissed by the United States District Court for the Eastern
District of Pennsylvania ("MARDOC claims"), and therefore were not
included in "Beginning claims". As of March 31, 2012, pursuant to
an ongoing review process initiated by the Court, 26,574 claims
were permanently dismissed, and 3,378 claims remain active (and
have been added to "Ending claims"). In addition, the Company was
named in 8 new maritime actions in 2010 (not included in
"Beginning claims"). The Company expects that more of the
remaining 6,504 maritime actions will be activated, or permanently
dismissed, as the Court's review process continues.
"Of the 57,398 pending claims as of March 31, 2012, approximately
19,400 claims were pending in New York, approximately 9,900 claims
were pending in Texas, approximately 5,500 claims were pending in
Mississippi, and approximately 5,500 claims were pending in Ohio,
all jurisdictions in which legislation or judicial orders restrict
the types of claims that can proceed to trial on the merits.
"Substantially all of the claims the Company resolves are either
dismissed or concluded through settlements. To date, the Company
has paid two judgments arising from adverse jury verdicts in
asbestos matters. The first payment, in the amount of $2.54
million, was made on July 14, 2008, approximately two years after
the adverse verdict in the Joseph Norris matter in California,
after the Company had exhausted all post-trial and appellate
remedies. The second payment, in the amount of $0.02 million, was
made in June 2009 after an adverse verdict in the Earl Haupt case
in Los Angeles, California on April 21, 2009.
"The Company has tried several cases resulting in defense verdicts
by the jury or directed verdicts for the defense by the court, one
of which, the Patrick O'Neil claim in Los Angeles, was reversed on
appeal. In an opinion dated January 12, 2012, the California
Supreme Court reversed the decision of the Court of Appeal and
instructed the trial court to enter a judgment of nonsuit in favor
of the defendants.
"On March 14, 2008, the Company received an adverse verdict in the
James Baccus claim in Philadelphia, Pennsylvania, with
compensatory damages of $2.45 million and additional damages of
$11.9 million. The Company's post-trial motions were denied by
order dated January 5, 2009. The case was concluded by settlement
in the fourth quarter of 2010 during the pendency of the Company's
appeal to the Superior Court of Pennsylvania.
"On May 16, 2008, the Company received an adverse verdict in the
Chief Brewer claim in Los Angeles, California. The amount of the
judgment entered was $0.68 million plus interest and costs. The
Company is pursuing an appeal in this matter.
"On February 2, 2009, the Company received an adverse verdict in
the Dennis Woodard claim in Los Angeles, California. The jury
found that the Company was responsible for one-half of one percent
(0.5%) of plaintiffs' damages of $16.93 million; however, based on
California court rules regarding allocation of damages, judgment
was entered against the Company in the amount of $1.65 million,
plus costs. Following entry of judgment, the Company filed a
motion with the trial court requesting judgment in the Company's
favor notwithstanding the jury's verdict, and on June 30, 2009,
the court advised that the Company's motion was granted and
judgment was entered in favor of the Company. The trial court's
ruling was affirmed on appeal by order dated August 25, 2011. The
plaintiffs appealed that ruling to the Supreme Court of
California, which dismissed the appeal on February 29, 2012; the
matter is now finally determined in the Company's favor.
"On March 23, 2010, a Philadelphia County, Pennsylvania, state
court jury found the Company responsible for a 1/11th share of a
$14.5 million verdict in the James Nelson claim, and for a 1/20th
share of a $3.5 million verdict in the Larry Bell claim. On
February 23, 2011, the court entered judgment on the verdicts in
the amount of $0.2 million against the Company, only, in Bell, and
in the amount of $4.0 million, jointly, against the Company and
two other defendants in Nelson, with additional interest in the
amount of $0.01 million being assessed against the Company, only,
in Nelson. All defendants, including the Company, and the
plaintiffs took timely appeals of certain aspects of those
judgments. The Nelson appeal is pending. The Company resolved the
Bell appeal by settlement, which is reflected in the settled
claims for 2012.
"On August 17, 2011, a New York City state court jury found the
Company responsible for a 99% share of a $32 million verdict on
the Ronald Dummitt claim. The Company has filed post-trial motions
seeking to overturn the verdict, to grant a new trial, or to
reduce the damages, which the Company argues are excessive under
New York appellate case law governing awards for non-economic
losses. The Court held oral argument on these motions on October
18, 2011, and a written decision is expected to be issued. The
Company anticipates that it will likely appeal any judgment that
may be entered on the verdict.
"On March 9, 2012, a Philadelphia County, Pennsylvania, state
court jury found the Company responsible for a 1/8th share of a
$123,000 verdict in the Frank Paasch claim. The Company and
plaintiffs have filed post-trial motions. The Company anticipates
that it will likely appeal any judgment that may be entered on the
verdict.
"Such judgment amounts are not included in the Company's incurred
costs until all available appeals are exhausted and the final
payment amount is determined.
"The gross settlement and defense costs incurred (before insurance
recoveries and tax effects) for the Company for the three-month
periods ended March 31, 2012 and 2011 totaled $23.6 million and
$27.6 million, respectively. In contrast to the recognition of
settlement and defense costs, which reflect the current level of
activity in the tort system, cash payments and receipts generally
lag the tort system activity by several months or more, and may
show some fluctuation from quarter to quarter. Cash payments of
settlement amounts are not made until all releases and other
required documentation are received by the Company, and
reimbursements of both settlement amounts and defense costs by
insurers may be uneven due to insurer payment practices,
transitions from one insurance layer to the next excess layer and
the payment terms of certain reimbursement agreements. The
Company's total pre-tax payments for settlement and defense costs,
net of funds received from insurers, for the three-month periods
ended March 31, 2012 and 2011 totaled a $18.2 million net payment
and $12.7 million net payment, respectively.
"Cumulatively through March 31, 2012, the Company has resolved (by
settlement or dismissal) approximately 87,000 claims, not
including the MARDOC claims. The related settlement cost incurred
by the Company and its insurance carriers is approximately $340
million, for an average settlement cost per resolved claim of
approximately $4,000. The average settlement cost per claim
resolved during the years ended December 31, 2011, 2010 and 2009
was $4,123, $7,036 and $4,781 respectively. Because claims are
sometimes dismissed in large groups, the average cost per resolved
claim, as well as the number of open claims, can fluctuate
significantly from period to period. In addition to large group
dismissals, the nature of the disease and corresponding settlement
amounts for each claim resolved will also drive changes from
period to period in the average settlement cost per claim.
Accordingly, the average cost per resolved claim is not considered
in the Company's periodic review of its estimated asbestos
liability.
"A liability of $894 million was recorded as of December 31, 2011
to cover the estimated cost of asbestos claims now pending or
subsequently asserted through 2021, of which approximately 80% is
attributable to settlement and defense costs for future claims
projected to be filed through 2021. The liability is reduced when
cash payments are made in respect of settled claims and defense
costs. The liability was $871 million as of March 31, 2012. It is
not possible to forecast when cash payments related to the
asbestos liability will be fully expended; however, it is expected
such cash payments will continue for a number of years past 2021,
due to the significant proportion of future claims included in the
estimated asbestos liability and the lag time between the date a
claim is filed and when it is resolved. None of these estimated
costs have been discounted to present value due to the inability
to reliably forecast the timing of payments. The current portion
of the total estimated liability at March 31, 2012 was $101
million and represents the Company's best estimate of total
asbestos costs expected to be paid during the 12-month period.
Such amount is based upon the HR&A model together with the
Company's prior year payment experience for both settlement and
defense costs."
Crane Co. (Crane) is a diversified manufacturer of highly
engineered industrial products. Crane operates in five segments:
Aerospace & Electronics, Engineered Materials, Merchandising
Systems, Fluid Handling and Controls.
ASBESTOS UPDATE: Manitowoc Company Still a Party to Lawsuits
------------------------------------------------------------
The Manitowoc Company, Inc., remains involved in numerous lawsuits
involving asbestos-related claims in which the company is one of
numerous defendants. After taking into consideration legal
counsel's evaluation of such actions, the current political
environment with respect to asbestos related claims, and the
liabilities accrued with respect to such matters, in the opinion
of management, ultimate resolution is not expected to have a
material adverse effect on the financial condition, results of
operations, or cash flows of the company.
No further updates were reported in the Company's Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarterly
period ended March 31, 2012.
The Manitowoc Company, Inc., engages in the design, manufacture,
and sale of cranes and related products, and foodservice equipment
worldwide.
ASBESTOS UPDATE: IPALCO Unit Remains a "Premises Defendant"
-----------------------------------------------------------
IPALCO Enterprises, Inc.'s subsidiary Indianapolis Power & Light
Company is a defendant in less than thirty pending lawsuits
alleging personal injury or wrongful death stemming from exposure
to asbestos and asbestos containing products formerly located in
IPL power plants, according to the Company's Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarterly
period ended March 31, 2012.
The Company states: "IPL has been named as a "premises defendant",
which means that IPL did not mine, manufacture, distribute or
install asbestos or asbestos containing products. These suits have
been brought on behalf of persons who worked for contractors or
subcontractors hired by IPL. IPL has insurance which may cover
some portions of these claims; currently, these cases are being
defended by counsel retained by various insurers who wrote
policies applicable to the period of time during which much of the
exposure has been alleged.
"It is possible that material additional loss with regard to the
asbestos lawsuits could be incurred. At this time, an estimate of
additional loss cannot be made. IPL has settled a number of
asbestos related lawsuits for amounts which, individually and in
the aggregate, were not material to IPL's or IPALCO's results of
operations, financial condition, or cash flows. Historically,
settlements paid on IPL's behalf have been comprised of proceeds
from one or more insurers along with comparatively smaller
contributions by IPL. Additionally, approximately 20 cases have
been dismissed by the plaintiffs in the first quarter of 2012
without requiring a settlement. We are unable to estimate the
number of, the effect of, or losses or range of loss which are
reasonably possible from the pending lawsuits or any additional
asbestos suits. Furthermore, we are unable to estimate the portion
of a settlement amount, if any, that may be paid from any
insurance coverage for any known or unknown claims. Accordingly,
there is no assurance that the pending or any additional suits
will not have a material adverse effect on IPALCO's results of
operations, financial condition, or cash flows."
IPALCO Enterprises, Inc., is a holding company and a wholly-owned
subsidiary of The AES Corporation. IPALCO owns all of the
outstanding common stock of its subsidiaries. Substantially all of
IPALCO's business consists of the generation, transmission,
distribution and sale of electric energy conducted through its
principal subsidiary, Indianapolis Power & Light Company. IPL has
approximately 470,000 retail customers in the city of Indianapolis
and neighboring cities, towns and communities, and adjacent rural
areas all within the state of Indiana, the most distant point
being approximately forty miles from Indianapolis.
ASBESTOS UPDATE: Parker Drilling Continues to Defend 15 Suits
-------------------------------------------------------------
Parker Drilling Company in its Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
March 31, 2012, disclosed it is from time to time a party to
various lawsuits that are incidental to its operations in which
the claimants seek an unspecified amount of monetary damages for
personal injury, including injuries purportedly resulting from
exposure to asbestos on drilling rigs and associated facilities.
At March 31, 2012, there were approximately 15 of these lawsuits
in which the Company is one of many defendants. These lawsuits
have been filed in the United States in the State of Mississippi.
"The subsidiaries named in these asbestos-related lawsuits intend
to defend themselves vigorously and, based on the information
available to us at this time, we do not expect the outcome to have
a material adverse effect on our financial condition, results of
operations or cash flows. However, we are unable to predict the
ultimate outcome of these lawsuits. No amounts were accrued at
March 31, 2012."
Parker Drilling, together with its subsidiaries, is a provider of
contract drilling and drilling-related services. Its rental tools
subsidiary specializes in oil and gas drilling rental tools,
providing high-quality, reliable equipment, such as drill pipe,
heavy-weight drill pipe, tubing, high-torque connections, blowout
preventers (BOPs) and drill collars used for drilling, workover
and production applications.
ASBESTOS UPDATE: General Cable Had 29,062 Cases at March 30
-----------------------------------------------------------
General Cable Corporation in its Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
March 30, 2012, relates its subsidiaries have been named as
defendants in lawsuits alleging exposure to asbestos in products
manufactured by the Company. As of March 30, 2012, the Company was
a defendant in approximately 624 non-maritime cases and 28,438
maritime cases brought in various jurisdictions throughout the
United States. As of March 30, 2012 and December 31, 2011, the
Company had accrued, on a gross basis, approximately $5.1 million,
and as of March 30, 2012 and December 31, 2011 had recovered
approximately $0.5 million and $0.6 million of insurance
recoveries for these lawsuits, respectively. The Company does not
believe that the outcome of the litigation will have a material
adverse effect on its condensed consolidated results of
operations, financial position or cash flows.
General Cable Corporation is engaged in the development, design,
manufacture, marketing and distribution of copper, aluminum and
fiber optic wire and cable products for use in the energy,
industrial, construction, specialty and communications markets.
The Company additionally engages in the design, integration, and
installation on a turn-key basis for products, such as high and
extra-high voltage terrestrial and submarine systems.
ASBESTOS UPDATE: Gardner Denver Continues to Defend Suits
---------------------------------------------------------
Gardner Denver, Inc., remains a defendant in a number of asbestos-
related lawsuits, according to the Company's Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarterly
period ended March 31, 2012.
The Company is a party to various legal proceedings, lawsuits and
administrative actions, which are of an ordinary or routine nature
for a company of its size and sector. In addition, due to the
bankruptcies of several asbestos manufacturers and other primary
defendants, among other things, the Company has been named as a
defendant in a number of asbestos-related personal injury
lawsuits. The Company has also been named as a defendant in a
number of silica-related personal injury lawsuits. The plaintiffs
in these suits allege exposure to asbestos or silica from multiple
sources and typically the Company is one of approximately 25 or
more named defendants. In the Company's experience to date, the
substantial majority of the plaintiffs have not suffered an injury
for which the Company bears responsibility.
Predecessors to the Company sometimes manufactured, distributed
and/or sold products allegedly at issue in the pending asbestos
and silica litigation lawsuits (the "Products"). However, neither
the Company nor its predecessors ever mined, manufactured, mixed,
produced or distributed asbestos fiber or silica sand, the
materials that allegedly caused the injury underlying the
lawsuits. Moreover, the asbestos-containing components of the
Products, if any, were enclosed within the subject Products.
The Company has entered into a series of agreements with certain
of its or its predecessors' legacy insurers and certain potential
indemnitors to secure insurance coverage and/or reimbursement for
the costs associated with the asbestos and silica lawsuits filed
against the Company. The Company has also pursued litigation
against certain insurers or indemnitors where necessary. The
latest of these actions, Gardner Denver, Inc. v. Certain
Underwriters at Lloyd's, London, et al., was filed on July 9,
2010, in the Eighth Judicial District, Adams County, Illinois, as
case number 10-L-48 (the "Adams County Case"). In the lawsuit, the
Company seeks, among other things, to require certain excess
insurer defendants to honor their insurance policy obligations to
the Company, including payment in whole or in part of the costs
associated with the asbestos lawsuits filed against the Company.
In October 2011, the Company reached a settlement with one of the
excess insurer defendants for approximately the amount of such
defendant's policy that was subject to the lawsuit.
The Company believes that the pending and future asbestos and
silica lawsuits are not likely to, in the aggregate, have a
material adverse effect on its consolidated financial position,
results of operations or liquidity, based on: the Company's
anticipated insurance and indemnification rights to address the
risks of such matters; the limited potential asbestos exposure
from the Products; the Company's experience that the vast majority
of plaintiffs are not impaired with a disease attributable to
alleged exposure to asbestos or silica from or relating to the
Products or for which the Company otherwise bears responsibility;
various potential defenses available to the Company with respect
to such matters; and the Company's prior disposition of comparable
matters. However, due to inherent uncertainties of litigation and
because future developments, including, without limitation,
potential insolvencies of insurance companies or other defendants,
an adverse determination in the Adams County Case, or other
inability to collect from the Company's historical insurers or
indemnitors, could cause a different outcome, there can be no
assurance that the resolution of pending or future lawsuits will
not have a material adverse effect on the Company's consolidated
financial position, results of operations or liquidity. However,
at this time, based on presently available information, the
Company views this possibility as remote.
Gardner Denver, Inc., designs, manufactures, and markets
engineered industrial machinery and related parts and services
primarily in North America, Europe, Asia, South America, Africa,
and Australia.
ASBESTOS UPDATE: Standard Motor Had 2,110 Open Cases at March 31
----------------------------------------------------------------
Standard Motor Products, Inc., in its Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarterly period
ended March 31, 2012, disclosed it had approximately 2,110
asbestos-related cases outstanding at the end of March.
The Company states: "In 1986, we acquired a brake business, which
we subsequently sold in March 1998 and which is accounted for as a
discontinued operation. When we originally acquired this brake
business, we assumed future liabilities relating to any alleged
exposure to asbestos-containing products manufactured by the
seller of the acquired brake business. In accordance with the
related purchase agreement, we agreed to assume the liabilities
for all new claims filed on or after September 2001. Our ultimate
exposure will depend upon the number of claims filed against us on
or after September 2001 and the amounts paid for indemnity and
defense thereof. At March 31, 2012, approximately 2,110 cases
were outstanding for which we may be responsible for any related
liabilities. Since inception in September 2001 through March 31,
2012, the amounts paid for settled claims are approximately $12.3
million. We acquired limited insurance coverage up to a fixed
amount for defense and indemnity costs associated with certain
asbestos-related claims. Under the policy currently in effect, we
have submitted claims to our insurance carrier and have received
$0.9 million in reimbursement for settlement claims and defense
costs.
"In evaluating our potential asbestos-related liability, we have
considered various factors including, among other things, an
actuarial study performed by an independent actuarial firm with
expertise in assessing asbestos-related liabilities, our
settlement amounts and whether there are any co-defendants, the
jurisdiction in which lawsuits are filed, and the status and
results of settlement discussions. As is our accounting policy,
we engage actuarial consultants with experience in assessing
asbestos-related liabilities to estimate our potential claim
liability. The methodology used to project asbestos-related
liabilities and costs in the study considered: (1) historical data
available from publicly available studies; (2) an analysis of our
recent claims history to estimate likely filing rates into the
future; (3) an analysis of our currently pending claims; and (4)
an analysis of our settlements to date in order to develop average
settlement values.
"The most recent actuarial study was performed as of August 31,
2011. The updated study has estimated an undiscounted liability
for settlement payments, excluding legal costs and any potential
recovery from insurance carriers, ranging from $27.5 million to
$66.5 million for the period through 2059. The change from the
prior year study was a $1.8 million increase for the low end of
the range and a $0.4 million decrease for the high end of the
range. Based on the information contained in the actuarial study
and all other available information considered by us, we concluded
that no amount within the range of settlement payments was more
likely than any other and, therefore, recorded the low end of the
range as the liability associated with future settlement payments
through 2059 in our consolidated financial statements.
Accordingly, an incremental $1.3 million provision in our
discontinued operation was added to the asbestos accrual in
September 2011 increasing the reserve to approximately $27.5
million. According to the updated study, legal costs, which are
expensed as incurred and reported in earnings (loss) from
discontinued operation in the accompanying statement of
operations, are estimated to range from $26.2 million to $63
million during the same period."
Standard Motor Products, Inc., manufactures and distributes
replacement parts for motor vehicles in the automotive aftermarket
industry with an increasing focus on the original equipment
service market.
ASBESTOS UPDATE: Lanier Law Firm to Lead Asbestos Legal Forum
-------------------------------------------------------------
Attorneys from The Lanier Law Firm, one of the country's leading
trial firms, will be taking a leading role during the Northeast
Asbestos Litigators & Judges Forum in New York City on June 21.
The popular conference attended by attorneys and judges from
across the U.S. will include presentations on important
developments in asbestos law, dealing with asbestos trusts,
appellate issues in asbestos cases, the status of asbestos
litigation in all courts in the Northeast, and a variety of other
issues.
The Lanier Law Firm's Mike Holley of Houston will deliver the
luncheon keynote address, which will take place at Thomson Hall on
Broadway.
Attorney Richard D. "Rick" Meadow, who leads The Lanier Law Firm's
New York office, is serving as co-chair of the event. He will
moderate the conference's final presentation, which will feature a
judicial roundtable with judges from around the country who will
discuss asbestos lawsuit trends in their individual jurisdictions.
The Lanier Law Firm's in-house trial psychologist Dr. Robert Leone
and firm associate Patrick O'Hara will lead a mock jury session
during the event, providing attendees with an inside view of how
juries decide asbestos cases.
The Toxic Exposure and Asbestos practice at The Lanier Law Firm is
one of the largest in the country. The firm also maintains the
Web site http://www.NationalMesotheliomaLawyer.com/to provide
information and advice on the everyday dangers of asbestos
exposure.
With offices in Houston, Los Angeles, New York, and Palo Alto, The
Lanier Law Firm is committed to addressing client concerns with
effective and innovative solutions in courtrooms across the
country. The firm is composed of outstanding trial attorneys with
decades of experience handling cases involving pharmaceutical
liability, asbestos exposure, intellectual property, business
litigation, product liability, maritime law, bad faith insurance
claims, and sports and entertainment law.
ASBESTOS UPDATE: UK Helpline Responds to Thailand's Claim
---------------------------------------------------------
UK-based Asbestos Advice Helpline has responded to claims made in
Thailand that white asbestos is safe. Certain Thai business
owners have recently been denying the dangers of all forms of
asbestos by claiming that white asbestos, or chrysotile, is safe.
The UK helpline, who assist those who have been diagnosed with
asbestos related diseases such as mesothelioma, asbestosis and
lung cancer with claiming due compensation, have backed up the
World Health Organization's response to the claims, stating that
no forms of asbestos are, in any way, safe.
Thailand's WHO representative Dr. Maureen E. Birmingham has this
week stated, "The WHO has been very clear that all forms of
asbestos, including chrysotile, can cause cancer," and that,
"T-shirts are being distributed by certain construction material
producers which use chrysotile in their products claiming that the
WHO has certified chrysotile as safe."
Asbestos Advice Helpline spokesman Ian has backed up Dr.
Birmingham's statement, putting it out to the UK and stating,
"Under no circumstances should any form of asbestos ever
considered to be safe. The WHO has once again recommended that
asbestos use is stopped worldwide and we couldn't back this
recommendation more. We see regular cases of asbestos related
diseases and statistics show that over 107,000 people each year
die worldwide from them."
Whilst asbestos use was banned in the UK in 1985, it is still in
widespread use in some Asian countries and Dr. Nopporn Chuenklin,
deputy director general of the Department of Disease Control, has
recent said, "while almost 50 countries have banned the use of
asbestos and turned to safe substitutes, Thailand is still Asia's
third-biggest importer of asbestos after India and China."
Ian continues, "Asbestos use should be banned worldwide. The
sooner this happens, the better. When asbestos begins to
deteriorate, fibers float into the air and can infiltrate the
lungs when inhaled. The biggest concern is that it can take 20 --
30 years for asbestos related diseases to show up, meaning that at
the time, no effects are experienced."
If you, a friend or a family member have developed asbestos
related diseases following exposure in the past, give Asbestos
Advice Helpline a call on 0800 916 9050 to discuss your options.
ASBESTOS UPDATE: Issues Mounts at Mount Greylock High School
------------------------------------------------------------
Andy McKeever of iBerkshires reports that Mount Greylock Regional
High School Superintendent of Facilities Jesse Wirtes has a busy
summer ahead of him.
Wirtes is leading the charge in piecing together decades of
documentation and planning out an "aggressive" asbestos abatement.
The school has been removing asbestos as needed but Wirtes
continues to find more --- including air piping underneath the
gym, in a closet in the band room and a closet in the kitchen.
The school has previously identified other asbestos in classrooms
and floor tiles but the additional finds have raised questions of
just how much asbestos is there. Wirtes and Building Subcommittee
member David Backus are now organizing decades of files to find
out what has been identified, what has been abated and what is
unknown.
"We are extremely aggressive on this more than ever," Wirtes said
on Thursday.
Backus said more recent reports have indicated asbestos is in
areas that older documents say have been cleared. Every three
years, a report is made regarding only where asbestos has already
been identified. However, the files are in disarray and some of
the reports could be missing information -- and carrying that
into the next one.
"We are fairly confident that we understand what is going on in
this building," Backus said of the progress they've made in
sorting the documents.
Building subcommittee member Thomas Bartels said the school should
do another comprehensive search for asbestos because nobody seems
to know when one was done. Backus said he hopes to find that
original report in part of the sorting of documents.
"If we cannot find that there was a comprehensive evaluation done
then you have a reason to be concerned," Chairman Jack Hickey
said.
Committee members said even if a complete report was not done,
there is enough documentation of asbestos identified or removed
that another study could pinpoint any unknown locations.
Bartels said a full study is likely going to have to be done at
the school's expense if the school district is accepted into the
state School Building Authority program to build a new school or
renovate the current one. Bartels said the school should just get
ahead of it and do a full study.
Wirtes invited a state inspector from the Department of Labor to
tour the school and said she had no concerns about the school's
plans and current safety.
"It's not a concern on a daily basis but needs to be removed,"
Wirtes said. "We are keeping a close eye on them."
All the identified asbestos is enclosed and not getting into the
air, Backus said.
Wirtes said he will also be prioritizing asbestos removal. Right
now, he is looking at the rooms in the kitchen and band room
followed by classrooms in the central hallway and later the west
corridor. The asbestos under the gym floor is secured but not a
priority because Wirtes wants to install new air lines instead.
The piping under the floor had been shut off but the ducts have
never been cleaned. A massive cleaning effort would be needed so
Wirtes does not want to use those pipes at all. He said he has
asked Adams Plumbing and Heating to estimate the cost of
installing new vents along the roof.
Wirtes is also prioritizing other issues he is finding in the
school, water from coming into the school.
Moisture is coming through the floor and hurting the air quality,
he said. Last month, the humidity made it impossible to control.
Wirtes said it will likely be costly to renovate the air systems
to get the humidity out or install air conditioning units.
"I know we're waiting on an answer [from MSBA], but we're looking
at four or five years and we still need to do something about
these things," Wirtes said.
He said a motor for the generator has burned out and only half of
the school receives power. When the school lost power on May 29,
the cafeteria lost more than $1,000 worth of food because the
refrigerators were not receiving power.
ASBESTOS UPDATE: Mystery Cause of Iron Rangers Mesothelioma Probed
------------------------------------------------------------------
John Myers of the Duluth News Tribune reports that a comprehensive
study on why so many Iron Rangers are dying of a rare lung disease
is entering its final data-crunching stages with some results
expected later this year.
But in an update provided Thursday, May 29, key researchers
confided that they may never find a link between a high rate of
fatal mesothelioma and the taconite iron ore industry -- that the
high rate of mesothelioma deaths among Rangers may have been
caused by exposure long ago and far away.
"That's one of the possibilities. It could be we don't see any
relationship to the workplace," said Jeff Mandel, an associate
professor at the University of Minnesota's School of Public Health
and the lead researcher in the study.
But researchers in the nearly $5 million Minnesota Taconite
Workers Health Study quickly added that they haven't reached that
conclusion yet and are still working to see where and how Rangers
may have been exposed to asbestos or asbestos-like fibers that are
the only known cause of always-fatal mesothelioma.
Researchers has revealed that the study already has confirmed a
300 percent higher rate of mesothelioma on the Iron Range than the
general population in Minnesota.
An update, the first since October, also reported that Rangers
have about 20 percent more lung cancer and 11 percent more heart
disease than the general population.
Yet while lung cancer can be caused by smoking and heart disease
from bad eating habits and obesity, mesothelioma can come only
from exposure to certain kinds of airborne fibers. Researchers
said they simply aren't finding many, if any of the traditional
asbestos size mineral fibers in their study. So now they are
focusing on shorter fibers. Once called "asbestos-like fibers,"
researchers are now calling them "elongated mineral particles"
because they are not truly asbestos.
Some Rangers have speculated that the lung disease killing their
cohorts comes from the minerals in the rock released by the
process of mining low-grade iron ore and processing it into
taconite pellets. Researchers continue to look at that but say
it's possible the exposure came from previous jobs, such as in the
ship building industry or onboard asbestos-laden Navy ships, or
handling asbestos molds or insulation while working in taconite
plants.
Meanwhile a health screening of current and retired taconite
workers found that 17 percent had reduced lung capacity and about
the same had abnormalities on tissue around the lung. It's not
clear, however, if those problems are from smoking, dust exposure
or other issues.
At least 82 Iron Rangers have died in recent years from
mesothelioma, which often doesn't appear until 30-40 years after
initial exposure to asbestos fibers.
It's estimated about 80,000 workers have been involved in mining
since the first operations began in Minnesota in the late 1800s.
Researchers are focusing on the roughly 46,000 people born since
1920 who worked in the production of taconite, which has been
mined and processed in Minnesota since the 1950s.
The health study, headed by the University of Minnesota's School
of Public Health and funded by the 2008 Minnesota Legislature, has
five distinct parts:
-- An occupational exposures assessment to determine how and
where the asbestos or shorter particles came from.
-- A mortality study to determine the cause of death for
thousands of deceased taconite workers.
-- A cancer incidence study to see whether lung cancer rates
are higher on the Iron Range.
-- An environmental study of current airborne particulates to
check for asbestos levels in taconite plants and in local cities.
-- And a respiratory health study of living taconite workers
and their spouses.
All of the field work has been completed and now scientists are
crunching their numbers. All of the data analysis will be peer
reviewed before it's released.
Bob Brown, safety chairman for United Steelworkers of America
Local 2750 at Hibbing Taconite, who serves on the health study's
advisory committee, said the update was good but steelworkers are
still awaiting the results with trepidation.
"It seems like they are doing a very thorough job. I think people
are satisfied that they are at least taking this serious this
time," said Brown, 56. "But people are worried. They want to
know if they are going to have some golden years after they retire
or if they are just going to get sick. I've got 24 years in at
HibTac and 35 years in the mining game . . . I'm concerned where
this (lung disease) is coming from."
Brown said he was encouraged to hear that the study also is
looking at the relatively high exposure to silica in taconite
operations as a possible health concern.
Results from each of the five study parts will be made public
after they are completed, with some later this year and a final,
overall report is expected in 2013.
ASBESTOS UPDATE: Hope in Therapy and Lung-sparing Surgery Combo
---------------------------------------------------------------
Tim Povtak of The Mesothelioma Center reports that the latest
combination of photodynamic therapy and lung-sparing surgery is
the best treatment option available today for mesothelioma
patients looking for longer survival time and improved quality of
life, according to one recent study.
New research from the Perelman School of Medicine at the
University of Pennsylvania has detailed unusual success with this
combination therapy that represents significant progress in
mesothelioma treatment.
There is no cure for mesothelioma, the aggressive cancer caused by
an exposure to asbestos. But there is new hope.
"While I don't consider anything short of a cure as a victory
against mesothelioma, I am encouraged by our results," said Joseph
Friedberg, M.D., lead author of the study, in a news release.
"Based on our new findings, we are redoubling our clinical and
translational research efforts to find a way to further improve
and refine this multimodality treatment approach for
mesothelioma."
According to past research from the Mesothelioma Program at Penn,
only 40% of patients getting traditional treatment survive more
than a year after diagnosis. The typical life expectancy ranges
from six to 18 months.
Yet in this latest study from Penn that included 38 patients who
underwent the lung-sparing surgery and photodynamic therapy, the
median overall survival length was 31.7 months.
With the 31 patients having the epithelial mesothelioma subtype,
the median survival was 41.2 months.
"We are working together as a team, not just in the clinic but in
the laboratory as well, to find the best way to combine our
respective expertise," Friedberg said. "Our goal is an innovative
combined treatment that represents a new level of multipronged
attack on this horrendous cancer."
Photodynamic therapy uses light energy to kill cancer cells. It
involves the injection of a photo-sensitizing drug that stays
longer in cancer cells than in healthy cells. When the
wavelength-specific light is administered by laser, it can trigger
a reaction to kill the cancer cells without harming the healthy
ones.
It can cause side effects that include skin and eye sensitivity to
light for several weeks. It also can cause swelling and scarring
of healthy tissue. The lung sparing surgery is in contrast to the
more radical surgery that includes the removal of a lung and the
lining around it in hopes of eliminating more of the cancer.
Often, though, it comes with a decreased quality of life. And the
post-operative mortality is usually higher.
Saving the lung often puts a patient in better condition to
tolerate additional treatments during recurrence. Of the 38
patients in this study, there was one post-operative mortality
(stroke).
There has been considerable debate over which surgical technique
is more advantageous for a patient. Researchers have concluded
that regardless of the surgery type, almost all mesothelioma
patients have disease recurrence.
This latest research was published in the May issue of Annals of
Thoracic Surgery.
"The survival we observed with this approach was unusually long
for patients. The reason for this prolonged survival, despite
recurrence, is not clear, but it is potentially related to
preservation of the lung, or some PDT (photodynamic therapy)
effect, or both," the authors wrote in the conclusion. "We
conclude that the results of this lung-sparing approach are safe,
encouraging, and warrant further investigation."
ASBESTOS UPDATE: Rise in ARD Claims From The Sugar Industry Eyed
----------------------------------------------------------------
Melissa Maddison of ABC News reports that a lawyer representing
people with asbestos-related illnesses says he expects to see more
compensation claims from sugar industry workers.
Carl Hughes says asbestos was used as an insulator in mills until
the 1980s and thousands of workers in north Queensland could have
been exposed to it.
Mr. Hughes says there has recently been a change in the type of
people seeking compensation.
"The sugar industry is certainly one where we're seeing an
increasing number of claimants," he said.
"Similarly outside of the industry setting the home renovations
those sorts of things."
"That particular area in itself is probably the highest growth
area with the number of people that have been diagnosed."
The brother of a man who worked at a Proserpine sugar mill in
north Queensland was recently awarded compensation over his death
from mesothelioma.
The Queensland Industrial Magistrates Court ruled that Rod Fraser
and his wife and children were financially supported by his
brother Andrew, who died in 2009.
Mr. Hughes says the ruling is unusual.
"I think even the insurer's attitude initially was well no he's a
brother, he's not entitled," he said.
Mr. Hughes says research suggests asbestos-related compensation
claims will peak by about 2025.
"The usual latency period between when someone was exposed to
asbestos and develops for example mesothelioma can be as high as
40 years," he said.
"If asbestos was removed from a lot of industrial settings in the
mid-80s, that potentially gives them another 40 years of people
who may within that time frame develop an asbestos-related
disease."
ASBESTOS UPDATE: Colorado Mom May Have Contaminated Own Children
----------------------------------------------------------------
According to an article by Kendra Potter of 11 News posted at
www.kktv.com, at the beginning of May, a fire burned three
buildings at the Timbers Apartments on the southeast side of
Colorado Springs, displacing 40 people and costing hundreds of
thousands in damages.
But on Monday, May 28, a mother made a scary discovery. She found
signs posted around one of the buildings burned warning about
asbestos, three weeks after the fire. Betty Laribo lives in the
building right next to it with her husband and two young kids.
In a 11 News investigation, Laribo says that residents were not
told anything about the asbestos. She's now worried if there is
asbestos in that building, it could be in hers too.
The ceiling of her own apartment collapsed onto her kids' bed
during the fire. The debris also covered her kids' toys.
She washed them off and gave them back to the kids before the
warning signs went up. The mother now wonders if there was
asbestos in her own ceiling too, and if it could affect her kids'
health.
Laribo tells us that her boy is 4 years old and her girl is not
even 2 yet. Her kids still chew on the toys that she is afraid
may have been contaminated.
"It's nerve-wracking because I don't know what the end result of
that could be. I don't know what could happen to them at all.
And they didn't say anything," said Laribo. "If they would have
said something I would have thrown everything away. But instead,
they didn't and I don't know what could possibly happen to my
babies."
The mother of two also fears the building in question is not
sealed up properly. She sees the building is gated off, and tarps
are over the windows. But she says there are holes in the tarps,
allowing for air to escape.
Laribo is afraid that kids who play in the area could be at risk
if that air is not suppose to escape. She also fears the air is
getting into her own place, as they leave the windows open.
She is especially concerned after the signs posted warned of
cancer and lung disease hazards, and told people to keep out
unless they had respirators and protective gear.
Laribo says that many residents and workers have been in the burnt
building since the May 4 fire without any protective clothing.
She says if you need a respirator to be in the building, then it
only makes sense that the air could pose health concerns. That's
why she is upset that it could be escaping.
Laribo is also upset her family was never told about concerns of
asbestos and feels something needs to be done to warn the other
families in the complex. She is begging for answers about what
health concerns she and her kids could face.
11 News does not have confirmation about the presence of asbestos,
but we did see the warning signs too. We called the apartment
complex managers as soon as we heard about the concerns, but they
were closed.
There is a lot still to be determined, but this mother is very
worried.
11 News said it will follow up with the Fire Department and
property managers to see if there is a threat to her kids.
ASBESTOS UPDATE: ACTU Head Pushes for Fibro-Free Australia by 2030
------------------------------------------------------------------
Surviving Mesothelioma and Cancer Monthly reports that the head of
an Australian Consortium of Trade Unions is calling on the
government to protect its citizens against mesothelioma by ridding
the country of asbestos by 2030.
Ged Kearney is president of the Australian Council of Trade
Unions, which represents construction unions and made the call on
the ACTU website. Because asbestos was mined in Australia and in
Australian buildings and cement from the 1950's to the 1970's,
people who work in mining, construction and ship building trades
are at higher risk for asbestos-linked diseases such as asbestosis
and mesothelioma. According to the ACTU, Australia had the
highest per capita use of asbestos in the world from the 1950's to
the 1980's. The Australian government banned the use of asbestos
in workplaces in 2004.
"The cost of lives . . . cannot be measured in dollar terms,"
Kearney is quoted as saying in The Australian. "We must put
resources into this and we must make absolutely sure we get
Australia asbestos free." The ACTU says there were more than
9,000 cases of mesothelioma in Australia between 1982 and 2006.
Although few disagree with the mesothelioma risk caused by
asbestos, there is government concern over the cost of removing
asbestos from thousand of buildings. To minimize the risk of
mesothelioma for workers and the public during asbestos removal,
the material must be removed by licensed abatement professionals
wearing approved protective clothing and respirators, which can be
costly.
The Australian government's asbestos management review is
currently working on a national plan for asbestos removal. The
final report is due in June. The ACTU says, for the 2030 date to
be feasible, the plan must include a comprehensive national audit
of all asbestos-containing buildings. They are calling on the
government to start the removal process with government-owned
buildings and public dump sites.
Tens of thousands of buildings in the United States, many of them
private residences, also contain asbestos. The U.S. Environmental
Protection Agency has taken the stance that mesothelioma risk is
lower if intact asbestos is left in place, rather than being
disturbed and allowed to become airborne. The EPA website
contains recommendations for homeowners who wish to assess and
remove asbestos from their houses. Mesothelioma is a particularly
aggressive cancer and is diagnosed approximately 2,500 times per
year in the U.S.
ASBESTOS UPDATE: Tonsley Park Abatement Workers Report Anomalies
-----------------------------------------------o----------------
Bryan Littley of Adelaide Now reports that workers on the state's
biggest asbestos-removal site at the former Mitsubishi car plant
say procedural breaches are risking safety.
Workers who contacted The Advertiser anonymously say they do not
believe correct removal procedures had been adhered to in the
first four months of the project, to clean up 93,000sq m of
asbestos sheeting on the former factory site.
SafeWork SA officers, regularly on site, said its inspectors had
issued statutory notices to address non-compliant work practices.
The breaches involve a failure to comply with the personal
protective equipment requirements of workers in the asbestos-
removal zone. But the workers, some of whom have quit, believe
the issues and dangers at the site extend beyond people not being
appropriately equipped with protective gear.
They have questioned how the clean-up project, conducted by DE-
Construct for developers Baulderstone, handles the asbestos
sheeting once it is removed from the factory structure.
One worker said the sheets were "dumped" into trucks lined with
plastic, causing asbestos particles and dust to become airborne.
And workers are also concerned about thick dust in the factory
that they fear contains asbestos.
A Baulderstone spokesman said the health and safety of everybody
involved with its projects was the company's first priority.
"We take our environmental obligations very seriously and the
protection of all aspects of the environment is a key concern,"
the spokesman said.
Asbestos removal is being carried out under the EPA guidelines
together with approvals from SafeWork SA.
"The subcontractor engaged on the project is working in accordance
with the asbestos-removal plan.
"The Baulderstone project team will continue to work with SafeWork
SA to ensure all preventative measures are adhered to for the life
of this project."
SafeWork SA said the Tonsley Park redevelopment, an SA government
project being managed by the Urban Renewal Authority, has been
declared a major project.
"The redevelopment involves significant construction work
including the removal of asbestos," a SafeWork SA spokeswoman
said.
"SafeWork SA has assigned specialist inspectors from the Mineral
Fibres Unit and the Construction and High Risk Plant Team to this
project."
ASBESTOS UPDATE: Unusual Toxic Type Delays Perry Lakes Project
--------------------------------------------------------------
Jon Bassett of the Western Suburbs Weekly at inmycommunity.com.au
reports that unexpected toxic asbestos is delaying demolition of
the 1962-commissioned Perry Lakes Stadium grandstand, initially
scheduled for completion in November last year.
On May 25, a letter from State Government developer LandCorp to
Floreat residents said "a black paint-like substance which
contains minor traces of boned asbestos" was discovered at the
15.5-hectare site being redeveloped for 600 homes.
"What wasn't expected was the bonding and in the way it's been
found. It's on steel beams, as a coat, like a paint," LandCorp
general manager Luke Willcock told Western Suburbs Weekly.
Residents say they were kept in the dark about the grandstand's
deadly waste.
Ferndale Street resident Keith Butson said last time he spoke to a
LandCorp spokesman, in January, he was told the grandstand would
be demolished by Easter and lots would be offered for sale after
that.
"And he said most of the asbestos had been removed," Mr. Butson
said.
Mr. Butson said he found asbestos "the size of my fist" before the
stadium's basketball courts were demolished without residents
being notified during one day last year.
Ferndale Street resident Lynette Quinlivan said she was concerned
about the risk of fire.
"It could be worse than the asbestos from the warehouse in West
Perth last week," she said.
Contractors had said the grandstand had "a very dangerous"
asbestos risk, but residents had not been told before work slowed
at the site after she wrote to WorkSafe.
Mr. Willcock said residents were not told earlier because the type
of material had not been confirmed, but he conceded communication
could have been better.
He said the perceived reduced activity was linked to landscaping
and other work being completed, while fences, a site office and
workers on-site made the grandstand more secure than "99 per cent"
of WA's buildings.
Asbestos disposal starts in June, with the job to be completed by
the end of the year.
ASBESTOS UPDATE: Derbyshire County Council Blamed for Mesothelioma
------------------------------------------------------------------
Chris Stevenson at Russell Jones & Walker Solicitors writes that
an industrial disease claim has been started by a joiner who
contracted mesothelioma while working for Derbyshire County
Council.
Christopher Turner is suing the local authority for up to
GBP500,000 on the grounds he is now terminally-ill after being
exposed to asbestos during his time operating for the body in the
1970s and 80s.
The 53-year-old professional was given just six months to live by
doctors after being diagnosed with the lethal condition in June
last year and has accused the council of failing to warn him how
dangerous working with asbestos is.
"I had no idea I even had it. My wife Anne and I were just
stunned," he told the news source.
Mr. Turner went on to say he was forced to retire at the age of 52
-- some 14 years before he intended to finish work - meaning the
minimum compensation he deserves is his lost earnings for this
period.
ASBESTOS UPDATE: Baron & Budd Shareholder Testified Against HB 477
------------------------------------------------------------------
According to an article by Baron & Budd, P.C., posted at
Mesothelioma News, one of the firm's shareholders, Louisiana
native Burton LeBlanc, attended last month's Louisiana Senate
debate on HB 477. According to the firm, the bill introduced in
the Louisiana state legislature would severely limit the ability
of asbestos victims in Louisiana to seek compensation from
asbestos bankruptcy funds.
LeBlanc was the only attorney who testified against the bill --
and he wasn't paid for appearing in the Senate or speaking out
against this bill. Rather, LeBlanc chose to spend his time to
help protect the civil rights of all asbestos victims (not just
Baron and Budd clients) against the companies that knowingly
exposed their workers to asbestos.
"It's ironic the proponents are here today asking for individuals
suffering from cancer to provide you with disclosure," said
LeBlanc in his senate testimony. "When it's these [asbestos]
companies, this coalition, for over 60 years, knew of the health
hazards of asbestos and never warned a single worker . . . that
the products could cause cancer."
"Thanks in part to LeBlanc's hard work, the bill was voted down in
the Senate, with four Senators voting against the bill, two voting
for it, and one abstaining," the firm's article said.
LeBlanc and the mesothelioma attorneys at Baron and Budd pride
themselves on actively fighting for the rights of the injured -- a
fight that includes not only handling lawsuits for individuals but
also standing up against any legislation that would curb the
rights of people suffering from asbestos-related diseases such as
mesothelioma. The firm even went all the way to the Supreme Court
to preserve the rights of asbestos victims to pursue individual
lawsuits instead of grouping all asbestos lawsuits into a class
action. And the firm won.
Baron & Budd lists some frightening but very real facts the
asbestos industry doesn't want known:
-- Approximately 27.5 million workers were exposed to asbestos
on the job between 1940 and 1980.
-- The asbestos companies have lied about the dangers of
asbestos exposure for more than 30 years. Some asbestos companies
are still lying about it.
-- Approximately 3,000 Americans are diagnosed with
mesothelioma each year.
ASBESTOS UPDATE: Ford, Lockheed Martin, 171 Others Face 8 Claims
----------------------------------------------------------------
Kyla Asbury of The West Virginia Record reports that 14 people are
suing 173 companies in eight separate complaints for asbestos
exposure that caused various lung injuries.
James W. Cronin and Margaret Ann Cronin; Paul E. Herstine; Joseph
L. Kolakowski and Delores R. Kolakowski; Shirley I. Quinn and
David L. Quinn; George P. Schmidt Jr. and Ann S. Schmidt; Tim
Watts and Nita Watts; Aubrey L. Woodward and Lydia J. Woodward;
and Lawrence C. Yeater, executor of the Estate of Robert R.
Yeater, deceased by the plaintiffs in the suits, according to
eight complaints filed April 30 in Kanawha Circuit Court.
Due to asbestos exposure, James Cronin, Joseph Kolakowski, Shirley
Quinn, George Schmidt, Tim Watts, Aubrey Woodward and Lawrence
Yeater were diagnosed with asbestosis and lung cancer and Herstine
was diagnosed with asbestosis.
The plaintiffs were negligently exposed to asbestos during their
employments and the defendants failed to warn them of the dangers
of exposure, according to the suit.
The plaintiffs claim the defendants also failed to inform them of
appropriate safety apparel to wear while around asbestos.
The defendants knew or should have known of the dangers exposure
to asbestos could have and failed to warn the plaintiffs,
according to the suit.
The 14 plaintiffs are seeking jury trials to resolve all issues
involved. They are being represented by David P. Chervenick,
Bruce E. Mattock and Scott S. Segal.
The cases have been assigned to a visiting judge.
The 173 companies named as defendants in the suit are 20th Century
Glove Corporation of Texas; 4520 Corp. Inc.; Air & Liquid Systems
Corporation; Ajax Magnethermic Corporation; AK Steel Corporation;
Alliance Machine Company; Allied Glove Corporation; American
Optical Corporation; Ametek, Inc.; Anderson Greenwood & Co.;
Aristech Chemical Corporation; Armstrong International, Inc.;
Armstrong Pumps, Inc.; Atlas Industries, Inc.; Aurora Pump
Company; Bayer Cropscience, LP; Beazer East, Inc.; Bechtel
Corporation; BP Products North America, Inc.; Brand Insulations,
Inc.; Cameron International Corporation; Cashco, Inc.; Catalytic
Construction Company; CBS Corporation; Certainteed Corporation;
Chevron U.S.A., Inc.; The Cincinnati Gasket, Packing & Mfg., Inc.;
Cleaver-Brooks, Inc.; Columbia Paint Corp.; Columbus McKinnon
Corporation; Cooper Industries, Inc.; Copes-Vulcan, Inc.; Coppus
Turbines; Crane Company, Inc.; Dana Corporation; Dezurik, Inc.;
Dow Chemical Company; Dravo Corporation; E.I. Du Pont De Nemours &
Company; Eaton Corporation; Eichleay Corporation; F.B. Wright
Company; The Fairbanks Company; Fairmont Supply Company; Flowserve
U.S., Inc., and its Byron Jackson Pump Division; Flowserve U.S.,
Inc., f/k/a Flowserve FSD Corporation, f/k/a Durametallic Corp.;
Flowserve U.S., Inc., f/k/a Flowserve FSD Corporation, as
Successor to Edward Valves, Inc.; Flowserve U.S., Inc., f/k/a
Flowserve FSD Corporation, as Successor to Valtek International;
Flsmidth Inc.; Flsmidth Dorr-Oliver Eimco, Inc.; Flsmidth Salt
Lake City, Inc.; Fluor Constructors International; Fluor
Constructors International, Inc.; Fluor Corporation; Fluor
Enterprises, Inc.; Ford Motor Company; Foseco, Inc.; Foster
Wheeler, LLC; Fuller Company; The Gage Company; Gardner Denver,
Inc.; General Electric Company; General Refractories Company;
Gentex Corporation; George V. Hamilton, Inc.; The Goodyear Tire &
Rubber Company; Goulds Pumps, Inc.; Greene Tweed & Co.; Grinnell,
LLC; H.E. Neumann Company; Hercules Chemical Company, Inc.;
Hinchliffe & Keener, Inc.; Honeywell International, Inc.; Howden
North America, Inc.; I.U. North America, Inc.; IMO Industries,
Inc.; Industrial Holdings Corporation; Ingersoll-Rand Company;
Insul Company, Inc.; ITT Corporation; J.H. France Refractories
Company; Jabo Supply Corporation; Jacobs Engineering Group, Inc.;
John Crane, Inc.; Joseph T. Ryerson & Son, Inc.; Joy Technologies,
Inc.; Katy Industries, Inc.; Kelly Moore Paint Company; Kentile
Floors, Inc.; Lockheed Martin Corporation; M.S. Jacobs &
Associates, Inc.; Magnetek, Inc.; Mallinckrodt LLC; Manitowoc
Company, Inc.; McCann Shields Paint Company; McCarls, Inc.;
McJunkin Redman Corporation; Meadwestvaco Corporation;
Metropolitan Life Insurance Company; Milwaukee Valve Company; Mine
Safety Appliances Company; Minnotte Contracting Corporation; Mobil
Corporation; Monongahela Power Company; Morgan Engineering
Systems, Inc.; Moyno, Inc.; Mueller Steam Specialty; Nagle Pumps,
Inc.; National Services Industries, Inc.; Nibco, Inc.; Nitro
Industrial Coverings, Inc.; O.C. Keckley Company; Oglebay Norton
Company; Owens-Illinois, Inc.; P&H Mining Equipment, Inc.; Parker-
Hannifin Corp.; Parker-Hannifin Corporation; Peerless Industries,
Inc.; Plotkin Brothers Supply, LLP; Pneumo Abex Corporation; Power
Piping Company; Premier Refractories, Inc.; Reading Crane;
Research-Cottrell, Inc.; Rhone-Poulenc AG Company, Inc.; Riley
Power, Inc.; Robinson Fans, Inc.; Rockwell Automation, Inc.; Roper
Pump Company; Rust Constructors, Inc.; Rust Engineering &
Construction, Inc.; Safety First Industries, Inc.; The Sager
Corporation; Saint-Gobain Abrasives, Inc.; Schneider Electric USA,
Inc.; Seco/Warwick Corporation; Seegott, Inc.; Selkirk Corp.; S.P.
Kinney Engineers, Inc.; Spirax Sarco, Inc.; SPX Cooling
Technologies, Inc.; Sterling Fluid Systems (USA), LLC; Sullair
Corporation; Sunbeam Products, Inc.; Sundyne Corporation; SVI
Corporation; Swindell-Dressler International Company; Taco, Inc.;
Tasco Insulation, Inc.; Team Industrial Services, Inc.; Townsend &
Bottum, Inc.; Trans-Pumps, Inc.; Trans-Pumps, Inc. of Pittsburgh;
UB West Virginia, Inc.; Unifrax Corporation; Union Carbide
Corporation; United Conveyor Corporation; United States Steel
Corporation; Universal Refractories Corporation; Viacom Inc.;
Viking Pump, Inc.; Vimasco Corporation; Warren Pumps, Inc.;
Washington Group International; Waste Management, Inc.; Watson
McDaniel Company; Weil-McLain Company; West Penn Power Company;
Whiting Corporation; The William Powell Company; WT/HRC
Corporation; Yarway Corporation; and Zurn Industries, LLC.
Kanawha Circuit Court case numbers: 12-C-762, 12-C-763, 12-C-764,
12-C-765, 12-C-766, 12-C-767, 12-C-768, 12-C-769
ASBESTOS UPDATE: Court Stays $420K Verdict v. 2 McComb Attorneys
----------------------------------------------------------------
Holbrook Mohr for The Associated Press reports that a federal
appeals court panel on Tuesday, May 29, upheld a $420,000 verdict
against two Mississippi lawyers accused by a railroad company of
committing fraud during an asbestos lawsuit they filed in 2001.
McComb attorneys William Guy and Thomas Brock sued Illinois
Central Railroad Co., an operating subsidiary of Montreal-based
Canadian National Railway Co., or CN, on behalf of nearly 170
former employees who claimed asbestos made them sick. The
railroad company later sued Guy and Brock, claiming the lawyers
knew that at least two of their clients lied about being involved
in an earlier asbestos case.
A federal jury ruled in 2010 for the railroad, which has offices
in Homewood, Ill. The lawyers appealed.
The 5th U.S. Circuit Court of Appeals in New Orleans sided Tuesday
with the railroad in a 2-1 vote. Judge Jennifer Walker Elrod was
the dissenting vote. She said Illinois Central waited beyond the
three-year statute of limitation to take action after it suspected
that Guy and Brock were involved in fraud.
Guy is a well-known attorney who served two terms as a state
representative in the late 1960s and in the 1970s before moving to
the Senate for one term. He ran unsuccessfully for lieutenant
governor as a Democrat in 1995.
Guy and Brock claimed during trial that they didn't know their
clients had been plaintiffs in the earlier asbestos litigation --
Cosey v. E.D. Bullard -- one of several lawsuits with huge
verdicts in the 1990s that led to calls for tort reform in
Mississippi.
Illinois Central said it would not have settled with two former
employees -- Warren Turner, Jr., for $120,000 in 2002 and Willie
Harried for $90,000 in 2003 -- if the company had known they had
already been involved in the other asbestos lawsuit.
The case was a mass litigation filed in 1995 in Jefferson County
that grew to represent hundreds of people from around the country
who claimed asbestos made them sick. Twelve of the plaintiffs
went to trial and were awarded $48.5 million. Companies soon
agreed to settlements with other plaintiffs out of fear of being
hit with another big verdict.
The railroad argued that Harried and Turner had both testified
that they each received several hundred thousand dollars in the
Cosey case.
ASBESTOS UPDATE: MassDEP Cites 3 Landlords for Storing Carcinogens
------------------------------------------------------------------
Brad Petrishen of The MetroWest Daily News reports that a Rte. 9
business has been fined more than $35,000 by the Massachusetts
Department of Environmental Protection after it was found to be
illegally storing asbestos, the agency said on May 30 in a press
release.
The complaint is lodged against three entities -- CJS Holdings II,
Inc., 2 Commercial Street Realty Trust 2008 of Provincetown and
Clifford J. Schorer III of Boston -- all of whom have a listed
address of 10 Turnpike Road in Southborough, DEP spokesman Ed
Coletta, Jr., said.
DEP inspectors discovered that in March 2010 Schorer had
improperly removed asbestos-containing insulation and asbestos-
containing transite panels from the Provincetown location and
brought them to the Southborough facility, which is not an
approved asbestos waste storage or disposal facility.
"During the inspections, MassDEP observed dry asbestos-containing
waste materials on the ground at the Provincetown site, and dry
asbestos-containing waste materials being stored in unmarked,
torn, household trash bags at the Southborough location," the
agency wrote.
MassDEP required that a licensed contractor remove the asbestos
from both properties and issued a fine of $36,625, the release
says, $4,000 of which must be paid immediately.
The remaining fine will be suspended as long as the companies do
not again violate the asbestos law within the next year.
"Property owners and individuals doing renovation work in
Massachusetts must be fully aware of their responsibilities under
the regulations to identify asbestos-containing materials and have
them properly removed, handled, packaged and stored in accordance
with the regulations," said Lee Dillard Adams, acting director of
MassDEP's Central Regional Office in Worcester. "Failure to do so
is an extremely serious oversight that potentially exposes workers
and the general public to a known carcinogen."
The businesses were cited for failing to notify MassDEP of a
demolition/renovation operation involving asbestos-containing
materials and for improperly handling, packaging and storing
asbestos-containing waste materials.
Property owners or contractors with questions about asbestos
regulations should contact their regional MassDEP office.
ASBESTOS UPDATE: EMSL Warns of Toxic Fallout During Blazes
----------------------------------------------------------
If a fire occurs in a building constructed between 1935 and 1970
near your home, you may want to avoid spending time outside in
your yard and call an asbestos remediation professional
immediately. The deadly asbestos fibers, which may have been
released by the fire, can spread in the air and settle on nearby
properties, putting you and your neighbors at risk. A recent
incident in Scotland highlighted how serious a problem it can be.
A Glasgow neighborhood has been told to limit use of their gardens
and lawns after a nearby school went up in flames. Officials
suspect that debris from the fire may have contained asbestos
fibers, which then settled on the surrounding property.
The cleanup is underway, and residents have also been warned
against attempting any cleanup on their own as asbestos cleanup
requires trained professionals. Residents have been urged not to
cut their lawns or hedges until the work is complete, because this
may spread the asbestos fibers once again.
Asbestos becomes dangerous after building materials begin to break
down and the asbestos fibers become airborne. Inhalation of
asbestos fibers can lead to the development of respiratory
cancers, such as lung cancer and mesothelioma. Symptoms may take
up to fifty years to present themselves after the initial exposure
to asbestos fibers.
"EMSL Analytical laboratories have been performing high quality
asbestos analysis since 1981," says Ed Cahill, Vice President of
EMSL's Asbestos Division. "Each of our 31 locations is equipped
and accredited to test for the presence of asbestos in the air,
soil, water, or bulk building materials."
For more information regarding EMSL's asbestos services, please
call 800-220-3675 or visit http://www.EMSL.com/
About EMSL Analytical
EMSL Analytical is a full service testing company providing
quality lab services under the same private ownership since 1981.
Including the corporate lab facility in Cinnaminson, NJ, EMSL
Analytical operates over thirty laboratories nationwide in the US
and Canada. The company has an extensive list of accreditations
from leading organizations, as well as state and federal
regulating bodies.
ASBESTOS UPDATE: Legal Watchdog Expects Bill Akin to HB477 in 2013
------------------------------------------------------------------
Kyle Barnett of Legal Newsline reports that a bill that would have
provided more information to Louisiana juries hearing asbestos
cases was voted down May 22 in a Senate committee.
HB477 would have required plaintiffs in asbestos exposure lawsuits
to provide a list of all potential defendants during the discovery
process.
The bill passed the House unanimously, but was defeated in Senate
Judiciary A in a 4-2 vote.
Proponents of the change said it would have tightened up the
damage awarding process and kept plaintiffs from recovering twice
for the same injury.
Melissa Landry, Executive Director of Louisiana Lawsuit Abuse
Watch Group, said the legislation would have provided more insight
into the damage award process.
"We are very disappointed that the Senate Committee failed to pass
HB 477," she said.
"This is a common sense bill that requires the basic disclosure of
information that would help stop abuse in Louisiana's asbestos
litigation system."
Senators voting for HB477 were Conrad Appel, R-Metairie, and Jack
Donahue, R -Mandeville. Senators voting against the bill were Dan
Claitor, R-Baton Rouge; Danny Martiny, R-Metairie; Ed Murray, D-
New Orleans; and Rick Ward, D-Port Allen. Committee chairman Ben
Nevers, D -Bogalusa, did not vote.
Louisiana would have been the first state to pass such
legislation.
Landy said that a lack of transparency that exists between
asbestos bankruptcy trusts and courts allows some personal injury
lawyers to recover twice for the same injury, "enriching
themselves and their clients at the expense of those asbestos
victims that are truly deserving of compensation."
"That's just wrong," she said. "We need to be doing everything we
can to stop double recovery and windfall lawyers' fees -- not
encouraging them."
Landry said her group is looking forward to supporting a similar
bill next year.
ASBESTOS UPDATE: Alvarado School Renovation on Hold Until May 2013
------------------------------------------------------------------
Cleburne Times-Review reports that at their most recent school
board meeting, Alvarado ISD trustees discussed the recent finding
of asbestos at Alvarado Junior High School which has put needed
school repairs on an indefinite hold.
Asbestos is found in many older buildings as it was used in
construction for years before the dangers of the natural mineral
were discovered. Used for its strength, insulation and fire
retardant, asbestos was discovered to cause severe health problems
in people who worked with it. Individuals who worked in mines,
shipyards and with car parts containing asbestos later suffered
from health problems, including mesothelioma, and thousands of
Americans have or are expected to die from overexposure.
However, now that the dangers are known, asbestos-containing
materials are only harmful if disturbed by construction or
damaged, according to the Environmental Protection Agency.
"Whenever something has to be done in the way of renovation, you
have to do abatement, which is a costly process," said AISD
Superintendent Chester Juroska. "Abatement is [the process of]
taking precautions when dust flies. It can be as special as
workers going in [the building] with suits and oxygen, or as
simple as wetting the material down before anything is done."
The district had made plans to paint and tile portions of the
junior high this summer, but because of the asbestos, those
repairs may never take place. To determine the level of
contamination, samples of sheetrock, tile, joint compound and
other areas were taken. The samples showed that asbestos made up
at least 2 percent of most building materials.
"We had to spend several thousand dollars just to find out that we
have to spend several thousand more dollars," Juroska said.
Some areas of the school, such as the newer gymnasium built about
15 years ago, do not contain asbestos. However, in areas with
asbestos, which are most of the teachers' classrooms and other
gathering areas, effective immediately, school employees may not
drill or hammer anything into the walls. They are only allowed to
stick posters and pictures to the wall with tape.
"Our asbestos coordinator does a walkthrough every six months to
confirm that the asbestos has not been disturbed," said Mark
Ratcliff, assistant superintendent of operations. In doing so,
district officials ensure the safety of students and teachers.
"Teachers cannot even safely or legally nail something to a
classroom wall without disturbing the asbestos," Juroska noted.
He added on Tuesday, May 29, that the cost of simply painting an
area would cost much more than necessary because patching holes in
the wall would require the expense of a professional contractor
who has the knowledge to work with asbestos.
Voters in 2010 said "no" to a $44 million bond package that would
have given junior high students a new school, built an auditorium
at the high school and renovated the Charles Head Stadium parking
lot.
Juroska said he hopes the district can try for another bond
election as soon as May 2013, because nothing can safely be done
to renovate the aging, and potentially hazardous, junior high.
Besides being full of asbestos, the junior high has been
overcrowded for years and students are long overdue for a new
school, he said.
In the meantime, district officials have decided to paint the high
school this summer and will later determine what to do with the
junior high.
ASBESTOS UPDATE: Last Mountain Pioneer Home Clear of Hazards
------------------------------------------------------------
The Canadian Press reports that the Saskatoon Health Region has
received the results of an air quality test at the Last Mountain
Pioneer Home in Strasbourg.
Six separate samples were taken as part of the testing and one
showed asbestos but the level was well below the acceptable
threshold.
Arrangements to discuss options for the safe remediation of any
exposed asbestos are still ongoing and no decision has been made
on what will be done.
Last month, the health region learned that two employee-access
areas of the Last Mountain Pioneer Home contained uncovered
asbestos, after requesting a third-party asbestos review of the
long term care facility.
Asbestos is common in older facilities throughout the province and
country, but is often sealed or safely removed without any effects
once it is discovered.
Officials say the probability that any residents or visitors were
exposed is low.
ASBESTOS UPDATE: A Review on Railroad Fraud Case Decision
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John O'Brien of Legal Newsline reports that a federal appeals
court has decided that a railroad's fraud case against two
Mississippi asbestos attorneys was filed in time.
The U.S. Court of Appeals for the Fifth Circuit ruled May 29,
against lawyers William Guy and Thomas Brock, both accused of not
disclosing their clients' previous involvements in another
asbestos lawsuit while they were suing Illinois Central Railroad.
Two judges on a three-judge panel voted to affirm the verdict.
The two lawyers argued a Mississippi federal court lacked
jurisdiction over the case and that Illinois Central missed the
statute of limitations.
The two clients -- Willie Harried and Warren Turner -- sued the
company in 2001 despite their previous involvements in an asbestos
mass action titled Cosey in the mid-1990s.
"Guy and Brock point out that even if Illinois Central should not
have suspected them of fraud, it certainly had reason to suspect
Harried and Turner," Judge Thomas Morrow Reavley wrote.
"We note that Illinois Central need not demonstrate due diligence
with respect to its claims against Turner and Harried; its suits
against them were timely . . . (W)e do not fault Illinois Central
for assuming that it was Turner and Harried, rather than Guy and
Brock, whom Illinois Central should sue for the settlement fraud."
Illinois Central paid $210,000 in settlements to the Harried and
Turner. A federal jury awarded the company $420,000.
Guy and Brock say the company found out about the previous lawsuit
no later than Feb. 13, 2004. The company sued the clients within
the three-year statute of limitations, but did not add Guy and
Brock as defendants until early 2008.
Harried filed suit in Mississippi state court, arguing the company
knew its claims were time-barred and should not have pursued its
case. Illinois Central said the suit attempts to re-litigate the
federal court case.
Judge Catharina Haynes joined Reavley in the majority. Judge
Jennifer Walker Elrod dissented and filed an opinion.
"I would reverse because doing nothing is not due diligence,"
Elrod wrote. "The majority opinion applies the fraudulent
concealment statute to excuse the tardiness of the claims but, in
doing so, gives short shrift to Mississippi's due diligence
requirement."
The company was given only a partial award of attorneys fees by
U.S. District Judge David Bramlette. It lost money pursuing the
fraud claim.
ASBESTOS UPDATE: Regina to Spend $66M This Year on Water Lines
--------------------------------------------------------------
Global News Regina reports that infrastructure will likely be a
big topic heading into Regina's municipal election in October.
That is especially true when it comes to the city's underground
water lines. Many of them are nearing their best before date.
But some may even come with a health concern. Over half of them
contain asbestos.
"I know lots of people are concerned what happens when it's in
that pipeline, and we do monitor that regularly," Sandy Bailey,
Manager of the city's Water and Sewer Engineering.
Around 550 kilometers of asbestos cement, or AC pipes, are buried
under the city. According to a National Research Council report,
AC pipelines have a life expectancy of 70 years. The lines were
built between the 1950's and '70's in Regina, putting some of them
at or near the end of their lifespan.
"We deal with it as it becomes a problem, like an actual risk, so
we wouldn't replace it just because it's 50 years old, or 70 years
old," Bailey explained.
The report says minor disturbances like ground shifting can
release some of the fibers into the drinking water. While
inhaling asbestos is a major health concern, microbiologist Roy
Cullimore, who worked on that report, says there is no evidence
ingesting it is harmful.
"The risk from asbestos in the water is extremely low," he said.
"It becomes major when you want to dispose of that pipe. Now you
want to make sure that you can closet it away somewhere, where the
asbestos isn't going to get out."
Cullimore says the best thing is to not break the pipe down,
something the city is well aware of. The pipes are wrapped and
the workers are covered up before anything is removed.
"We have a number of safety measures in place to ensure the safety
of the environment and workers," Bailey explained.
City council says it is a priority to keep Regina's drinking water
safe and is spending $66M this year to monitor, realign and
replace aging pipes.
"It's always a concern that we have infrastructure that's aging,
crumbling or falling apart," Councilor Michael Fougere said.
"We're doing what he can to ensure that we renew that."
ASBESTOS UPDATE: CORF Approves $96,700 for Grand Theater Abatement
------------------------------------------------------------------
Dave Gossett of The Herald-Star reports the city of Steubenville,
Ohio, will receive $96,700 in Clean Ohio Revitalization Fund grant
money for the removal of asbestos at the Grand Theater on South
Fourth Street.
The Clean Ohio Council approved more than $19 million in Clean
Ohio Revitalization Fund grants for 11 brownfield clean-up
projects throughout the state, which are expected to create and
retain nearly 900 jobs.
"Upon remediation, the building will be restored to its original
performing arts and movie theater purpose. The building will also
include the Performing Arts and Steubenville History Museum and a
Dean Martin Museum. The project is expected to create two jobs.
The funds will be used for asbestos abatement," explained Ohio
Department of Development Director Christiane Schmenk.
"This is really exciting news. The grant will allow us to get rid
of the little bit of asbestos in the building," said Scott
Dressel, chairman of the Grand Theater Restoration board of
directors.
"We will be required to match a certain percentage of the grant.
But we already have some of the money and are working to obtain
the rest of the local funds for that match. This is good news
because we are at the point where we are ready for the restoration
work to begin. Everything that we needed to remove has been taken
out," said Dressel.
"The theater lobby is about done at this point. We are preparing
to complete the office lobby and the museum area," added Dressel.
The funding, approved at a Clean Ohio Council Round 12 awards
meeting, will allow for the reuse of commercial and industrial
properties that are currently underutilized. The grants are
contingent upon State Controlling Board approval, Schmenk said.
"The communities receiving Clean Ohio Funds are taking the
important first step to redevelopment -- ensuring sites are safe
and ready for growth. These investments will not only assist in
finding new uses for old and underused properties, but also
support vital job creation efforts around the state," Schmenk
said.
The Clean Ohio Revitalization Fund is a competitive statewide
program that provides grants of up to $3 million to acquire
property, demolish structures, conduct environmental cleanup and
improve infrastructure.
Since its inception, 150 Clean Ohio Revitalization Fund projects
have been awarded more than $295 million, leveraging $2.5 billion
in private sector investment, and creating and retaining more than
12,500 jobs.
The city's Urban Projects office filed the application with the
Clean Ohio Revitalization Fund in order to perform asbestos
abatement at the Grand Theater following a March 12 public
hearing.
"This is an important project for the downtown and will continue
the work to bring the theater back to life. The abatement work
will allow the group doing restoration work on the building to
continue their project," said Urban Projects Director Chris
Petrossi.
David Kreeger, project manager of TRC Solutions of Gahanna, said
his consulting firm prepared the environmental assessment and
cleanup plans for the theater.
"We did a site walk through the theater and looked for anything
that could be an environmental concern. The theater is part of an
effort by the Grand Theater Restoration Project to revitalize the
theater as a mixed use theater," said Kreeger.
*********
S U B S C R I P T I O N I N F O R M A T I O N
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