/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/121221.mbx C L A S S A C T I O N R E P O R T E R Friday, December 21, 2012, Vol. 14, No. 253 Headlines A.R.M. SOLUTIONS: Faces Suit Over Unfair Debt Collection Practices BABCOCK & WILCOX: Awaits Ruling on Radiation Suit Dismissal Bid BANK OF AMERICA: Texas Counties Lose Class Certification Bid BASF: New Jersey Judge Dismisses Asbestos Class Action BEEBE MEDICAL: Bradley Settlement Implementation Questions Linger CHICAGO: Firefighters Lose Bid to Intervene in Class Action CHRISTMAS TREE: Recalls 2,000 Catalina Outdoor Fireplaces COMMERCE BANCSHARES: Still Awaits Okay of "Wolfgeher" Suit Deal COMMODITY ADVISORS: Adelphia Suit Settlements Pending Appeal COMMODITY ADVISORS: Appeals From Antitrust Suit Dismissal Pending COMMODITY ADVISORS: Appeal in Research-Related Suit Pending COMMODITY ADVISORS: Appeals From Dismissal of ARS Suits Pending COMMODITY ADVISORS: Appeals in Mortgage Crisis Suits Pending CREDIT SUISSE: Lawyer Faces Charges Over Alleged Scam CRESTWOOD MIDSTREAM: "Bartlett" Suit Settled/Dismissed in Sept. DIRECTV: Appeal in Early Cancellation Fees Suit Remains Pending DIRECTV: Received Final Judgment in Liberty Merger-Related Suit DUN & BRADSTREET: Sued for Deceptive Marketing of "CreditBuilder" DYNEGY INC: Appeal in "Silsby" Class Action Suit Remains Pending ENERGYSOLUTIONS INC: March 15 Settlement Fairness Hearing Set FIDELITY: Sued for Wrongfully Denying Hurricane-Related Claims HILTON WORLDWIDE: Faces Overtime Class Action in California HOFFMANN-LA ROCHE: Seeks Recusal of Judge Carol Higbee in MDL HONDA: Faces Class Action Over Defective Stability-Assist System JOHNSON & JOHNSON: Sued Over Deceptive Suncreen Product Labels LG CHEM: Fixes Prices of Lithium Ion Batteries, Class Suit Says LG ELECTRONICS: Recalls 457,000 Top-Loading Washing Machines MIDWEST GENERATION: Two Negligence Suits Still Pending in Ill. MORGAN STANLEY: Judge Narrows Claims in Overtime Class Action NEW YORK CITY, NY: Kerr & Wagstaffe Comments on Red Light Suit NORCO BICYCLES: Recalls 90 Havoc Bicycles Due to Risk of Injury NORTHWESTERN MUTUAL: Annuity Class Action Remains in Federal Court PACIFIC BIOSCIENCES: No Order on Plea to Dismiss "Primo" Suit Yet PACIFIC BIOSCIENCES: Court Allows Shareholders to Amend Suit POLARIS INDUSTRIES: Recalls 82 Pro-RMK 600 and 800 Snowmobiles PROSPER MARKETPLACE: Securities Suit Still in Prelim. Stages SALLIE MAE: Students File Class Action Over Abetted Fraud SHAW GROUP: Settles Shareholder Class Action Over CB&I Sale SOLTA MEDICAL: "Aesthera" Suit Settlement Funds Paid Out SOLTA MEDICAL: Consumer Suit vs. Reliant Tech. Still Pending ST. JUDE: Continues to Defend Silzone-Related Suits in Canada ST. JUDE: Discovery Phase in March 2010 Securities Suit Ongoing ST. JUDE: June 2012 Securities Class Suit Dismissed in August SWIFT TRANSPORTATION: Awaits Class Cert. Bid Ruling in FCRA Suit SWIFT TRANSPORTATION: Continues to Defend "Garza" Class Suit SWIFT TRANSPORTATION: Minimum Wage Suits Pending in Calif. & Ore. TRANSUNION HOLDING: Appeals From "White" Suit Deal Remain Pending TRANSUNION HOLDING: Still Defends Virginia Public Records Suit UNITED SITE: Sued for Failure to Provide Valid Rest Periods VITACOST.COM INC: Appeal From "Miyahira" Suit Dismissal Pending WILIER TRIESTINA: Recalls 200 Izoard XP Bicycles Due to Fall Risk Asbestos Litigation ASBESTOS UPDATE: Tenneco Inc. Continues to Defend Fibro Suits ASBESTOS UPDATE: Con Edison & CECONY Each Had $10MM Liability ASBESTOS UPDATE: CECONY Still Defends Steam Main Rupture Suits ASBESTOS UPDATE: Trial Date in Fibro Suit vs. ACE Set for May 20 ASBESTOS UPDATE: Noble Corp. Had 29 Pending Suits at Sept. 30 ASBESTOS UPDATE: Crown Holdings Accrued $235MM for Fibro Claims ASBESTOS UPDATE: U.S. Auto Parts Unit Still Defending Fibro Suits ASBESTOS UPDATE: TMS International Continues to Defend Claims ASBESTOS UPDATE: Valhi & NL Unit Still Defending Fibro Claims ASBESTOS UPDATE: Alleghany Corp. Had Net Reserves of $393.7MM ASBESTOS UPDATE: MetLife Unit Continues to Defend Exposure Suits ASBESTOS UPDATE: Exelon & Units Continue to Defend PI Claims ASBESTOS UPDATE: CenterPoint Energy Continues to Defend PI Suits ASBESTOS UPDATE: Great Lakes Dredge Still Defending 37 PI Suits ASBESTOS UPDATE: IPALCO Unit Still Defending 25 Exposure Suits ASBESTOS UPDATE: CBS Corp. Had 46,060 Pending Claims at Sept. 30 ASBESTOS UPDATE: Wash. Ct. Junks CBS, et al. Summary Judgment Bids ASBESTOS UPDATE: Joinder Motions in Ferguson v. AC and S Suit Ok'd ASBESTOS UPDATE: Pa. Dist. Ct. Adopts Magistrate Judge's Reports ASBESTOS UPDATE: NY Ct. Junks Metro-North, et al.'s Dismissal Bids ASBESTOS UPDATE: S.C. Ct. Recommends Dismissal of Suit v. Wachovia ASBESTOS UPDATE: Dismissal of 4 Claims v. Wallace & Gale Affirmed ASBESTOS UPDATE: CSX v. Lawyers Suit to Proceed to Jury Trial ASBESTOS UPDATE: NY Ct. Directs Insurers to Pay Union Carbide ASBESTOS UPDATE: Non-Friable Fibro at Methuen High to Be Sealed-In ASBESTOS UPDATE: Ohio Governor to Sign Anti-Double-Dipping Bill ASBESTOS UPDATE: Ex-Chief Federal Judge Tackles Montevallo Issues ASBESTOS UPDATE: Wales Committee Examines ARD Cost Recovery Bill ASBESTOS UPDATE: Nakasuk Elementary Abatement Nears Completion ASBESTOS UPDATE: Fibro Partly Blamed for Carpenter's Death ASBESTOS UPDATE: 25 Bags of Fibro Found Under Winnipeg School ASBESTOS UPDATE: Contractor Exposes Workers at Aberystwyth Project ASBESTOS UPDATE: Scrappers Stir Up Fibro, Cleanup to Cost $78K ASBESTOS UPDATE: Court Junks Putative Class Action Against BASF ASBESTOS UPDATE: Camp Roberts Demolition Process Begins ASBESTOS UPDATE: USS Enterprise Vets Now Suffer ARD, Mesothelioma ASBESTOS UPDATE: Norwell Joins in AHERA Awareness Training ASBESTOS UPDATE: Ozaukee County Cited for Breach of Abatement Laws ASBESTOS UPDATE: Aussies Choose State Payout Over Court Action ASBESTOS UPDATE: Texans Oppose Anti-Double-Dipping Bill ASBESTOS UPDATE: Apex Sues Insurer for Breach of Coverage Terms ASBESTOS UPDATE: Trust Clarifies Alleged Court Action ASBESTOS UPDATE: Tons of Toxic Fibro Dumped in Central Sydney ASBESTOS UPDATE: Sydney Soil Shipment to Port Kembla Terminated ASBESTOS UPDATE: Firm Revives Dormant Cases of 13,000+ Claimants ASBESTOS UPDATE: PAR Applies for 10-Ton HazMat Transfer Station ASBESTOS UPDATE: The Lodge Refurbishments Project Put on Hold ASBESTOS UPDATE: Northfield Depot Group Gets $7,000 Abatement Fund ASBESTOS UPDATE: Insurers Face $11BB Loss to Fibro-Related Claims ASBESTOS UPDATE: Staffordshire Council Fined for Health Violations ASBESTOS UPDATE: Fire Stirs Up Fibro at North Bend Airport ASBESTOS UPDATE: Post-Sandy Rebuilders Warned of Hidden Hazards ASBESTOS UPDATE: Insurers Brace Against Toxic Dust Storm ASBESTOS UPDATE: AM Best Expects Insurance Losses to Top $85-Bil. ASBESTOS UPDATE: $20 Million Camp Roberts Demolition Plan Begins ASBESTOS UPDATE: Guernsey's Princess Elizabeth Hospital Abated ASBESTOS UPDATE: Fibro Removal at Webster Village Hall Ongoing ASBESTOS UPDATE: Pleural Mesothelioma Kills Ex-Little Lever Worker ASBESTOS UPDATE: Fibro Relocates Paterson Recreation Division ASBESTOS UPDATE: Goulburn Mulwaree to Take in Yass Valley's Fibro ASBESTOS UPDATE: Federal Paper Mill, 30 Others Face Lawsuit ASBESTOS UPDATE: 64 Pembrokeshire Schools Contaminated ASBESTOS UPDATE: Former Shipyard Worker Wins ARD Compensation ASBESTOS UPDATE: St. Albans' Odyssey Cinema's Abatement Ongoing ********* A.R.M. SOLUTIONS: Faces Suit Over Unfair Debt Collection Practices ------------------------------------------------------------------ Guy Jakub, on behalf of himself, the general public, and those similarly situated v. A.R.M. Solutions, Inc.; Brad Jadwin; James Montgomery, Case No. 3:12-cv-06113 (N.D. Calif., December 3, 2012) accuses the Defendants of violating the Fair Debt Collection Practices Act, the Rosenthal Fair Debt Collections Practices Act, the California Civil Code and the California Business and Professions Code. The lawsuit arises from the Defendants' unlawful and unfair debt collection practices, Mr. Jakub contends. Specifically, he alleges, the Defendants employ abusive debt collection methods in violation of state and federal law, and a United States Bankruptcy Court order, by engaging in a pattern of attempting to collect unauthorized amounts, failing to provide adequate notice and verification of debt, and failing to comply with the terms and conditions of a United States Bankruptcy Court order. Mr. Jakub is a resident of Brentwood, California. A.R.M. is a California corporation based in Camarillo, California. The Individual Defendants are residents of California, and principals and officers of A.R.M. The Plaintiff is represented by: Adam J. Gutride, Esq. Seth A. Safier, Esq. Kristen Simplicio, Esq. GUTRIDE SAFIER LLP 835 Douglass Street San Francisco, CA 94114 Telephone: (415) 336-6545 Facsimile: (415) 449-6469 E-mail: adam@gutridesafier.com seth@gutridesafier.com kristen@gutridesafier.com BABCOCK & WILCOX: Awaits Ruling on Radiation Suit Dismissal Bid --------------------------------------------------------------- The Babcock & Wilcox Company is still awaiting a court decision on its motion to dismiss a class action lawsuit pending in Tennessee, according to the Company's November 7, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2012. In June 2011, approximately 18 plaintiffs filed a lawsuit styled as a "class action" in the U.S. District Court for the Eastern District of Tennessee against Nuclear Fuel Services, Inc., B&W, Babcock & Wilcox Power Generation Group, Inc. ("B&W PGG"), Babcock & Wilcox Technical Services Group, Inc. ("B&W TSG"), NOG-Erwin Holdings, Inc. and others relating to the operation of the NFS facility in Erwin, Tennessee. The plaintiffs seek compensatory and punitive damages alleging personal injuries and property damage resulting primarily from alleged releases of radioactive and other hazardous materials as a result of operations at the facility. In October 2011, the plaintiffs filed a motion to amend the original complaint increasing the number of plaintiffs to approximately 140, and the Company filed a motion to dismiss. The hearing on the Company's motion to dismiss was held on June 28, 2012. No ruling has yet been issued by the court. The Company says this matter is still in its early stages. No discovery has been conducted and no trial date has been set. The ultimate outcome of these proceedings is uncertain and an adverse ruling, should coverage not be available, could have a material adverse impact on the Company's consolidated financial position, results of operations and cash flow. BANK OF AMERICA: Texas Counties Lose Class Certification Bid ------------------------------------------------------------ The Litigation Daily reports that Three Texas counties, including the two that contain Dallas and Houston, were rebuffed last week in their effort to bring a class action on behalf of all Texas counties against Bank of America Corp. and Mortgage Electronic Registration Systems Inc. The three counties accused BofA and MERS of using an electronic registry to avoid paying nearly $100 million in mortgage filing fees. BASF: New Jersey Judge Dismisses Asbestos Class Action ------------------------------------------------------ The Litigation Daily reports that BASF and its former lawyers at Cahill Gordon & Reindel won a resounding victory when a federal judge in New Jersey dismissed a purported class action that accused them of suppressing and destroying evidence in connection with thousands of asbestos suits. BEEBE MEDICAL: Bradley Settlement Implementation Questions Linger ----------------------------------------------------------------- Jeff Mordock, writing for Delaware Law Weekly, reports that as the initial deadline approaches for members of a class of victims -- who allege they were harmed by serial child sexual-abuser Earl Bradley -- to participate in the $123.15 million settlement approved last month by Delaware Superior Court Judge Joseph R. Slights III, some have questioned certain aspects of the settlement's implementation. However, an attorney who was involved in drafting the settlement said every eventuality has been considered to ensure Mr. Bradley's victims receive just compensation. Judge Slights approved the settlement November 19 in Doe 30's Mother v. Bradley. The settlement, which is said to be the first class action settlement in a sexual-abuse case, will settle claims against Beebe Medical Center that referred parents to Mr. Bradley, a former Lewes pediatrician who was sentenced last year to 14 life sentences for the rape, assault and sexual exploitation of a child. Under the settlement's terms, Beebe will contribute $7 million in cash plus an additional $100,000 per year over the next five years beginning in 2013 to a fund established to assist victims. Six separate insurers will contribute a combined total of approximately $112 million to the fund and the individual doctors will each contribute $50,000 for a total of $150,000. Some have questioned certain aspects of the settlement, including the distinction among the five injury categories that have been proposed for victims. Each claimant will be placed into one of five injury categories based upon the harm the child has suffered and his or her need for continued treatment. A dollar allocation will be assigned to each category and the children within each category will receive the same amount of compensation. For the many victims under the age of 18, these funds will be held in a trust. The first injury category is for those who present clear and convincing evidence of sexual intercourse, as defined by Delaware law. The second category is for claimants who present significant evidence, as defined by Delaware law, of sexual abuse. The third category is for claimants who present evidence revealing the probability of sexual abuse, while the last two categories are for victims who present no evidence that would allow one to reasonably conclude how the child was abused and claimants about which the evidence would allow one to reasonably conclude that a child was not abused. John G. Culhane, a professor at Widener University School of Law, has written articles and lectured on the topic of victim compensation. He told Delaware Law Weekly that he thought the settlement was the best solution for all parties, but the terms used to define the categories were vague. "The first and last categories are pretty clear because they rely on statutory definitions," Mr. Culhane said in a November interview. "But categories two and three need more definition. For example, category two requires significant evidence of sexual abuse. That is a very vague term." Mr. Culhane said last week that the lack of definition could result in claimants objecting over the category in which they've been placed, especially because of the monetary differences between each category. Jonathan Schochor, an attorney with the Baltimore firm Schochor, Federico and Staton, who helped draft the settlement, said several mechanisms have been adopted to ensure victims are placed into the correct category. First, under the terms of the accord, each claimant will be evaluated by Annie Steinberg, a pediatrician and adolescent psychiatrist. She is tasked with evaluating claimants to determine which category is appropriate for their injuries. And, the victims have the right to appeal any decision regarding category allocation to Steinberg or the fund administrator, former Philadelphia Court of Common Pleas Judge Thomas B. Rutter. "The allocation plan includes mechanisms for any victim to appeal to Steinberg and Rutter and present any evidence to prove their claim before the final allocation," Mr. Schochor said. "People are free to avail themselves to this process." Another concern is the initial deadline to join the class occurs today, Dec. 21, less than three weeks after Judge Slights' November 19 approval of the settlement. Typically in class action litigation, claimants have between 60 to 90 days to receive notice of the class and join in. It is especially problematic given that the class currently totals roughly 900 victims and could be expanded to 7,000, the total number of patients treated by Mr. Bradley. Mr. Schochor said the settlement does include a 90-day period for any claimant who was delayed in joining the class due to unusual circumstances such as being ill or in the military to request a hearing to determine if they have sufficient reasoning to delay joining the class. In addition, the ages of Mr. Bradley's victims have caused some to be concerned that the victims would be unaware of the abuse they suffered until later in life. However, Mr. Schochor said a claimant can join the fund for up to five years and a $3 million fund has been established for victims who wish to join the settlement at a later date. The money used to establish the fund was deducted from the $28 million in attorney fees awarded by Slights to victims' counsel. "We have reduced our requested fee from 25 percent to 22 percent in order to establish the latency fund," he said. Mr. Culhane said he didn't know if the five-year latency fund was unusual, but noted because sexual abuse often takes time to manifest itself in its victims, several state legislatures, including Delaware, have suspended or reduced the statute of limitations in such cases. He questioned if five years was enough time to ensure all victims get compensated. "I know different considerations are in play when you are talking about the settlement," he said. "From my perspective it seems odd that would close the window so quickly. Often it takes a generation or so for adults to come forward with abuse allegations." Mr. Schochor also noted that victims have been aware of the settlement for 16 months prior to its approval and the plaintiffs' attorneys have submitted letters informing Mr. Bradley's patients of the settlement. However, it is not known if the letters have reached all of Mr. Bradley's 7,000 patients. While some laud Beebe's willingness to provide claimants with $1 million of free medical care at the hospital for any health needs through August 2027, some have questioned its value, given that it can only be redeemed at the hospital itself and any victim who moved out of Delaware may have difficulty recouping the benefit. "Some people can take advantage of this benefit, while others cannot, based solely upon coincidence," Mr. Culhane said. "It's not like a voucher. It might have been something Beebe could throw on the table to help get this settlement. It may have been a sweetener but it will do some good for some people." Mr. Schochor conceded that it might be difficult for a claimant who has moved outside of Delaware to redeem the medical coverage, but it can still do a lot of good for victims who remain within the state. He added that his partner, Phil Federico, developed the idea. "It's not transferable, but if you need health care it's a wonderful thing that the Beebe Hospital is willing to provide for these children," he said. CHICAGO: Firefighters Lose Bid to Intervene in Class Action ----------------------------------------------------------- Joseph Celentino at Courthouse News Service reports that four firefighters cannot intervene in a class action that resulted in a $30 million judgment against Chicago for a discriminatory civil service examination, the United States Court of Appeals for the Seventh Circuit ruled. The federal appeals court slammed the would-be intervenors for trying "to upset the judgment and improve their own fortunes at the expense of other members of the class." In 1995, the city administered a written examination to 26,000 firefighter applicants. Those who scored above a 65 were rated "qualified," but the department considered only "highly qualified" candidates who scored above 89. From 1996 to 2001, the city hired 11 groups of applicants, choosing randomly from the "highly qualified" pool. In a subsequent class action, a group of unsuccessful "qualified" applicants alleged that the cutoff at 89 had a disparate impact on black candidates. Blacks made up just 11.5 percent of the "well qualified" pool, though they accounted for about 37 percent of Chicago's population in 2000. Eventually the case went to the Supreme Court, which reinstated a judgment for the firefighters in 2010. That decision held that the limitations period starts anew in disparate-impact litigation whenever the employer uses the faulty test to make hiring decisions. It also reduced the number of class members from 132 to 111, who ultimately split $30 million damages and were offered jobs. The four individuals who recently tried to intervene have been working as Chicago firefighters since 2005 after the city randomly selected them from the "qualified" pool. They allegedly thought that the resolution of this case would bring them extra seniority, pension credits or back pay, but U.S. District Judge Joan Gottschall said their motion to intervene came five years too late. She said each of the intervenors knew, or could have known, since 2007 that the court had defined the class to exclude hired firefighters. A three-judge panel affirmed on Dec. 17. Though there was trace of a 2007 order modifying the class definition, the four intervenors are still not entitled to relief, according to the ruling. "In 2007 the district court devised a remedy that gave them (and other persons hired between 2002 and 2006) no relief," Chief Judge Frank Easterbrook wrote for the panel. "The intervenors say that no one told them about this -- but then no one had to." The law requires notification to class members only of a settlement, not of the final outcome of a suit "fought to the finish." "Members of a (b)(2) class can monitor the litigation, and these intervenors did just that when attending oral arguments in the Supreme Court and this court," Judge Easterbrook wrote. "They could have asked to see the judgments entered in 2007 and 2011 but did not." The decision also defends limiting damages to unsuccessful applicants. "Applicants hired between 2002 and 2006 suffered at most a delay in employment, while those never hired suffered a greater injury," Judge Easterbrook wrote. "The intervenors have been on the payroll since 2005, receiving salary and accruing seniority; the other class members lack those benefits. . . . A judge properly could conclude that the remedy should be concentrated on the never hired applicants rather than be shared with those who had been enjoying salary and accruing seniority, and who might not have been injured at all. To repeat: given random selection, the intervenors might have been hired in 2005 or later, or not hired at all." Chicago now uses a pass-fail test to screen applicants. A copy of the Opinion in Lewis, Jr., et al. v. City of Chicago, Illinois, No. 12-2845 (7th Cir.), is available at: http://www.courthousenews.com/2012/12/18/chiff.pdf CHRISTMAS TREE: Recalls 2,000 Catalina Outdoor Fireplaces --------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with importer, Nantucket Distributing Co., Inc. of Middleboro, Massachusetts, and seller, Christmas Tree Shops, announced a voluntary recall of about 2,000 Catalina Outdoor Fireplaces. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. The glass components of the Catalina Outdoor Fireplace can break when a fire is lit posing a burn and laceration hazard. Christmas Tree Shops received three reports of the glass component of the outdoor fireplace breaking. No injuries have been reported. The Catalina Outdoor Fireplace is free standing and constructed of glass and black metal. The 21 1/4 in. square base sits on short legs. Black corner pieces hold the glass sides with one hinged side to add logs. It has a square, vented top lid and stands about 30" tall. The model number CT840BL appears on the outside of the packaging and on the instruction manual. A picture of the recalled products is available at: http://www.cpsc.gov/cpscpub/prerel/prhtml13/13072.html The recalled products were manufactured in China and sold at Christmas Tree Shops retail locations from September 2011 to October 2012 for about $130. Consumers should immediately stop using the recalled outdoor fireplace and return it to any Christmas Tree Shops store to receive a full refund. Christmas Tree Shops may be reached toll- free at (888) 287-3232 any time, or online at http://www.christmastreeshops.com/and go to the link Safety and Recalls at the bottom of the homepage. COMMERCE BANCSHARES: Still Awaits Okay of "Wolfgeher" Suit Deal --------------------------------------------------------------- Commerce Bancshares, Inc. is still awaiting court approval of its subsidiary's settlement of a class action lawsuit captioned Wolfgeher v. Commerce Bank, according to the Company's November 7, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2012. On July 26, 2012, Commerce Bank signed the formal Settlement Agreement and Release related to the class action lawsuit captioned Wolfgeher v. Commerce Bank, which was settled in December 2011, and which alleged unfair assessment and collection of overdraft fees based upon a high-to-low posting order utilized on debit card transactions. The Bank, while admitting no wrongdoing, agreed to the settlement in order to resolve the litigation and avoid further expense. In accordance with the terms of the Settlement Agreement and Release (which remains subject to final court approval), the Bank agrees to post debit card transactions in chronological order, beginning no later than April 2013. As a result of this change in the posting order of debit card transactions, the Company currently estimates that overdraft income will be reduced on an annual basis by $6 million to $8 million. COMMODITY ADVISORS: Adelphia Suit Settlements Pending Appeal ------------------------------------------------------------ Settlements of class action lawsuits under IN RE ADELPHIA COMMUNICATIONS CORPORATION SECURITIES AND DERIVATIVE LITIGATION are pending appeal, according to Commodity Advisors Fund L.P.'s November 7, 2012, Form 10-12G/A filing with the U.S. Securities and Exchange Commission. The general partner and commodity pool operator of Commodity Advisors Fund L.P., formerly known as "Energy Advisors Portfolio L.P., (the "Partnership") is Ceres Managed Futures LLC, which is formerly known as Citigroup Managed Futures LLC. The commodity broker of the Partnership is Citigroup Global Markets Inc. ("CGM"), which is indirectly owned by Citigroup Inc. The General Partner is a wholly owned subsidiary of Morgan Stanley Smith Barney Holdings LLC. Morgan Stanley, indirectly through various subsidiaries, owns a majority equity interest in MSSB Holdings, and Citigroup indirectly owns a minority equity interest in MSSB Holdings. On July 6, 2003, an adversary proceeding was filed by the Official Committee of Unsecured Creditors on behalf of Adelphia Communications Corporation against certain lenders and investment banks, including CGM, Citibank, N.A., Citicorp USA, Inc., and Citigroup Financial Products, Inc. (together, the "Citigroup Parties"). The complaint alleged that the Citigroup Parties and numerous other defendants committed acts in violation of the Bank Holding Company Act, the Bankruptcy Code, and common law. It sought an unspecified amount of damages. In November 2003, a similar adversary proceeding was filed by the Equity Holders Committee of Adelphia, asserting additional statutory and common law claims. In June 2004, motions to dismiss were filed with respect to the complaints of the two committees. Those motions were decided by the bankruptcy court, and were granted in part and denied in part. The district court affirmed in part and reversed in part the bankruptcy court's decision. The Adelphia Recovery Trust ("ART"), which replaced the committees as the plaintiff in the action, filed an amended complaint on behalf of the Adelphia Estate, consolidating the two prior complaints; motions to dismiss the amended complaint and answers were filed. The district court granted in part and denied in part the defendants' motions to dismiss the consolidated complaint. The ART's appeal to the Second Circuit from that partial dismissal is pending. Before the district court, the parties are briefing summary judgment. On September 22, 2010, the ART agreed in principle to settle its claims against numerous pre-petition lenders and investment banks, including Citigroup, in the action entitled ADELPHIA RECOVERY TRUST v. BANK OF AMERICA N.A., ET AL., 05 Civ. 9050 (S.D.N.Y.). The agreement in principle is subject to execution of a final settlement agreement and court approval. In addition, CGM is among the underwriters named in numerous civil actions brought to date by investors in Adelphia debt securities in connection with Adelphia securities offerings between September 1997 and October 2001. Three of the complaints also assert claims against Citigroup Inc. and Citibank, N.A. All of the complaints allege violations of federal securities laws, and certain of the complaints also allege violations of state securities laws and the common law. The complaint seeks unspecified damages. In December 2003, a second amended complaint was filed and consolidated before the same judge of the United States District Court for the Southern District of New York. In February 2004, motions to dismiss the class and individual actions pending in the United States District Court for the Southern District of New York were filed. In May and July of 2005, the United States District Court for the Southern District of New York granted motions to dismiss several claims, based on the running of applicable statute of limitations, asserted in the alleged class and individual actions being coordinated under IN RE ADELPHIA COMMUNICATIONS CORPORATION SECURITIES AND DERIVATIVE LITIGATION. With the exception of one individual action that was dismissed with prejudice, the court granted the alleged class and individual plaintiffs leave to re-plead certain of those claims the court found to be time-barred. Without admitting any liability, CGM and numerous other financial institution defendants settled IN RE ADELPHIA COMMUNICATIONS CORPORATION SECURITIES AND DERIVATIVE LITIGATION for a total of $250 million, and the settlement was approved in November 2006. Two of the additional remaining individual complaints have been settled. Following settlements of the class action, which is pending appeal, and other individual actions, two cases remain outstanding. The Second Circuit is considering whether the plaintiff in one has proper standing to sue. In September 2007, motions to dismiss in the other case were granted in part and denied in part. COMMODITY ADVISORS: Appeals From Antitrust Suit Dismissal Pending ----------------------------------------------------------------- Appeals from the dismissal of two antitrust class action lawsuits remain pending, according to Commodity Advisors Fund L.P.'s November 7, 2012, Form 10-12G/A filing with the U.S. Securities and Exchange Commission. The general partner and commodity pool operator of Commodity Advisors Fund L.P., formerly known as "Energy Advisors Portfolio L.P., (the "Partnership") is Ceres Managed Futures LLC, which is formerly known as Citigroup Managed Futures LLC. The commodity broker of the Partnership is Citigroup Global Markets Inc. ("CGM"), which is indirectly owned by Citigroup Inc. The General Partner is a wholly owned subsidiary of Morgan Stanley Smith Barney Holdings LLC. Morgan Stanley, indirectly through various subsidiaries, owns a majority equity interest in MSSB Holdings, and Citigroup indirectly owns a minority equity interest in MSSB Holdings. MAYOR & CITY COUNCIL OF BALTIMORE, MARYLAND v. CITIGROUP INC., ET AL. and RUSSELL MAYFIELD, ET AL. v. CITIGROUP INC., ET AL., are lawsuits filed in the Southern District of New York on behalf of a purported class of auction-rate securities ("ARS") issuers and investors, respectively, against Citigroup, CGM and various other financial institutions. In these actions, plaintiffs allege violations of Section 1 of the Sherman Act arising out of defendants' alleged conspiracy to artificially restrain trade in the ARS market. On January 15, 2009, defendants filed motions to dismiss the complaints in these actions. On January 26, 2010, both actions were dismissed. The actions are now pending on appeal. COMMODITY ADVISORS: Appeal in Research-Related Suit Pending ----------------------------------------------------------- An appeal from the dismissal of class action claims in a research- related customer lawsuit remains pending, according to Commodity Advisors Fund L.P.'s November 7, 2012, Form 10-12G/A filing with the U.S. Securities and Exchange Commission. The general partner and commodity pool operator of Commodity Advisors Fund L.P., formerly known as "Energy Advisors Portfolio L.P., (the "Partnership") is Ceres Managed Futures LLC, which is formerly known as Citigroup Managed Futures LLC. The commodity broker of the Partnership is Citigroup Global Markets Inc. ("CGM"), which is indirectly owned by Citigroup Inc. The General Partner is a wholly owned subsidiary of Morgan Stanley Smith Barney Holdings LLC. Morgan Stanley, indirectly through various subsidiaries, owns a majority equity interest in MSSB Holdings, and Citigroup indirectly owns a minority equity interest in MSSB Holdings. In March 2004, an alleged research-related customer class action alleging various state law claims arising out of the issuance of allegedly misleading research analyst reports concerning numerous issuers was filed against certain Citigroup affiliates in Illinois state court. On October 13, 2011, the court entered an order dismissing with prejudice all class-action claims asserted in the action on the ground that the Securities Litigation Uniform Standards Act of 1998 precludes those claims. The court granted leave for the alleged representative plaintiff to file an amended complaint asserting only his individual claims within 21 days. An amended complaint was not filed within the 21-day period. The alleged representative plaintiff has filed a notice of appeal from the court's October 13, 2011 order. COMMODITY ADVISORS: Appeals From Dismissal of ARS Suits Pending --------------------------------------------------------------- Appeals from the dismissal of class action lawsuits related to auction-rate securities remain pending, according to Commodity Advisors Fund L.P.'s November 7, 2012, Form 10-12G/A filing with the U.S. Securities and Exchange Commission. The general partner and commodity pool operator of Commodity Advisors Fund L.P., formerly known as "Energy Advisors Portfolio L.P., (the "Partnership") is Ceres Managed Futures LLC, which is formerly known as Citigroup Managed Futures LLC. The commodity broker of the Partnership is Citigroup Global Markets Inc. ("CGM"), which is indirectly owned by Citigroup Inc. The General Partner is a wholly owned subsidiary of Morgan Stanley Smith Barney Holdings LLC. Morgan Stanley, indirectly through various subsidiaries, owns a majority equity interest in MSSB Holdings, and Citigroup indirectly owns a minority equity interest in MSSB Holdings. Beginning in March 2008, Citigroup, CGM and their affiliates and certain current and former officers, directors, and employees, have been named as defendants in several individual and alleged class action lawsuits related to auction-rate securities ("ARS"). These have included, among others: (i) numerous lawsuits and arbitrations filed by customers of Citigroup and its affiliates seeking damages in connection with investments in ARS; (ii) a consolidated alleged class action asserting claims for federal securities violations, which has been dismissed and is now pending on appeal; (iii) two alleged class actions asserting violations of Section I of the Sherman Act, which have been dismissed and are now pending on appeal; and (iv) a derivative action filed against certain Citigroup officers and directors, which has been dismissed. In addition, based on an investigation, report and recommendation from a committee of Citigroup's Board of Directors, the Board refused a shareholder demand that was made after dismissal of the derivative action. COMMODITY ADVISORS: Appeals in Mortgage Crisis Suits Pending ------------------------------------------------------------ Appeals in certain proceedings asserting claims for damages and losses arising from the 2007 global financial credit and subprime- mortgage crisis remain pending, according to Commodity Advisors Fund L.P.'s November 7, 2012, Form 10-12G/A filing with the U.S. Securities and Exchange Commission. The general partner and commodity pool operator of Commodity Advisors Fund L.P., formerly known as "Energy Advisors Portfolio L.P., (the "Partnership") is Ceres Managed Futures LLC, which is formerly known as Citigroup Managed Futures LLC. The commodity broker of the Partnership is Citigroup Global Markets Inc. ("CGM"), which is indirectly owned by Citigroup Inc. The General Partner is a wholly owned subsidiary of Morgan Stanley Smith Barney Holdings LLC. Morgan Stanley, indirectly through various subsidiaries, owns a majority equity interest in MSSB Holdings, and Citigroup indirectly owns a minority equity interest in MSSB Holdings. Citigroup and certain of its subsidiaries have been named as defendants in numerous legal actions and other proceedings asserting claims for damages and related relief for losses arising from the global financial credit and subprime-mortgage crisis that began in 2007. Such matters include, among other types of proceedings, claims asserted by: (i) individual investors and purported classes of investors in Citigroup's common and preferred stock and debt, alleging violations of the federal securities laws; (ii) individual investors and purported classes of investors in, and issuers of, auction rate securities alleging violations of the federal securities and antitrust laws; (iii) counterparties to significant transactions adversely affected by developments in the credit and subprime markets; (iv) individual investors and purported classes of investors in securities and other investments underwritten, issued or marketed by Citigroup, including collateralized debt obligations ("CDOs"), mortgage-backed securities ("MBS"), auction-rate securities ("ARS"), investment funds, and other structured or leveraged instruments, that have suffered losses as a result of the credit crisis; (v) municipalities, related entities and individuals asserting public nuisance claims; and (vi) individual borrowers asserting claims related to their loans. These matters have been filed in state and federal courts across the country, as well as in arbitrations before the Financial Industry Regulatory Authority ("FINRA") and other arbitration associations. In addition to these litigations and arbitrations, Citigroup continues to cooperate fully in response to subpoenas and requests for information from the SEC, FINRA, the Federal Housing Finance Agency ("FHFA", state attorneys general, the Department of Justice and subdivisions thereof, bank regulators, and other government agencies and authorities in connection with various formal and informal inquiries concerning Citigroup's subprime and other mortgage-related conduct and business activities, as well as other business activities affected by the credit crisis. These business activities include, but are not limited to, Citigroup's sponsorship, packaging, issuance, marketing, servicing, and underwriting of CDOs and residential mortgage-backed securities ("RMBS") and its origination, sale or other transfer, servicing, and foreclosure of residential mortgages. On October 19, 2011, in connection with its industry wide investigation concerning CDO-related business activities, the SEC filed a complaint in the United States District Court for the Southern District of New York regarding Citigroup's structuring and sale of the Class V Funding III CDO transaction ("Class V"), which alleged that CGM negligently misrepresented key deal terms of the Class V CDO. On the same day, the SEC and Citigroup announced a settlement of the SEC's claims, subject to judicial approval, and the SEC filed a proposed final judgment pursuant to which Citigroup's U.S. broker-dealer CGM agreed to disgorge $160 million, and pay $30 million in prejudgment interest and a $95 million penalty. On November 28, 2011, the district court issued an order refusing to approve the proposed settlement and ordering trial to begin on July 16, 2012. On December 15, and 19, 2011, respectively, the SEC and CGM filed notices of appeal from the district court's November 28 order. On December 27, 2011, the United States Court of Appeals for the Second Circuit granted an emergency stay of further proceedings in the district court, pending the Second Circuit's ruling on the SEC's motion to stay the district court proceedings during the pendency of the appeals. On March 15, 2012, the Second Circuit granted a stay of the district court proceedings pending resolution of the appeals. Federal and state regulators, including the SEC, also have served subpoenas or otherwise requested information related to Citigroup's issuing, sponsoring, or underwriting of MBS. These inquiries include a subpoena from the Civil Division of the Department of Justice that Citigroup received on January 27, 2012. CREDIT SUISSE: Lawyer Faces Charges Over Alleged Scam ----------------------------------------------------- The Recorder reports that California State Bar officials have filed disciplinary charges against Wade Robertson, alleging he bilked an elderly man out of $3.5 million by promising returns from a securities class action lawsuit against Credit Suisse -- despite the fact Mr. Robertson was not counsel in the matter. CRESTWOOD MIDSTREAM: "Bartlett" Suit Settled/Dismissed in Sept. --------------------------------------------------------------- The class action lawsuit styled George Bartlett, et al., v. Frontier Gas Services, LLC, et al., was settled and dismissed in September 2012, according to Crestwood Midstream Partners LP's November 7, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2012. In December 2011, a putative class action lawsuit, George Bartlett, et al., v. Frontier Gas Services, LLC, et al. was filed in the United States District Court of the Eastern District of Arkansas against Frontier Gas Services, LLC, Chesapeake Energy Corporation, Kinder Morgan Treating LP and Crestwood Arkansas Pipeline, LLC. The lawsuit alleged that the defendants' operations polluted the atomosphere, groundwater, and soil with allegedly harmful gases, chemicals, and compounds and the facilities created excessive noise levels constituting trespass, nuisance and annoyance. On September 17, 2012, this case was settled and dismissed. The Company says the settlement did not have a material impact on its results of operations or financial condition. Crestwood Midstream Partners LP -- http://www.crestwoodlp.com-- engages in gathering, compressing, treating, processing, and transporting natural gas primarily on the Barnett Shale formation of the Fort Worth Basin in north Texas. The Company conducts its operations through its Cowtown System, Lake Arlington Dry System, and Alliance Midstream Assets, as well as the Fayetteville Shale and the Granite Wash plays. The Company was formerly known as Quicksilver Gas Services LP and changed its name to Crestwood Midstream Partners LP in October 2010. It was founded in 2004 and is based in Houston, Texas. Crestwood Midstream Partners LP is a subsidiary of Crestwood Gas Services Holdings LLC. DIRECTV: Appeal in Early Cancellation Fees Suit Remains Pending --------------------------------------------------------------- DIRECTV's appeal from the denial of its arbitration motion in the class action lawsuit challenging early cancellation fees it charges customers remains pending, according to the Company's November 7, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2012. In 2008, a number of plaintiffs filed putative class action lawsuits in state and federal courts challenging the early cancellation fees the Company assesses its customers when they do not fulfill their programming commitments. Several of these lawsuits are pending, some in California state court purporting to represent statewide classes, and some in federal courts purporting to represent nationwide classes. The lawsuits seek both monetary and injunctive relief. While the theories of liability vary, the lawsuits generally challenge these fees under state consumer protection laws as both unfair and inadequately disclosed to customers. The Company's motions to compel arbitration have been granted in all of the federal cases, except as to claims seeking injunctive relief under California statutes. The denial of the Company's motion as to those claims is currently on appeal. The Company believes that its early cancellation fees are adequately disclosed, and represent reasonable estimates of the costs the Company incurs when customers cancel service before fulfilling their programming commitments. DIRECTV: Received Final Judgment in Liberty Merger-Related Suit --------------------------------------------------------------- DIRECTV received final judgment in August 2012 in the class action lawsuit arising from the merger of Liberty Media Corporation with its subsidiary, according to the Company's November 7, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2012. A purported class action complaint was filed on February 9, 2010, and amended on April 23, 2010, in Delaware Chancery Court against certain past and present directors of Liberty Media Corporation alleging, among other things, that the defendants breached their fiduciary duties as Liberty board members in connection with the business terms and approval process by Liberty stockholders of the merger of Liberty Entertainment, Inc. with a subsidiary of DIRECTV as part of the Liberty Transaction. The defendants requested indemnification and DIRECTV elected to take control of the defense. After extensive discovery, the parties conducted mediation that resulted in a settlement providing for payment to plaintiffs of $10 million, substantially all of which was paid by insurance. The terms were finalized by a settlement agreement between the parties on May 16, 2012, and an Order and Final Judgment by the court on August 6, 2012. DUN & BRADSTREET: Sued for Deceptive Marketing of "CreditBuilder" ----------------------------------------------------------------- June Williams at Courthouse News Service reports that "Thousands of small businesses" were "deceived, misled and cheated" by Dun & Bradstreet in a "pay to play" scam that sells useless credit products in exchange for a favorable credit rating, a construction company claims in a federal class action. O&R Construction claims Dun & Bradstreet used "pure deception" to sell small business the "CreditBuilder" line of products, by falsely claiming there was a problem with the businesses' credit reports. "Defendants' aggressive marketing campaign features high-pressure sales tactics, including misleading form letters, emails and sales call scripts, which falsely claim that there are problems on a small business's credit report with Dun & Bradstreet, which the CreditBuilder products can remedy," the complaint states. "The defendants sell small businesses expensive products that purport to improve their credit ratings and correct problems on their reports: CreditBuilder for $799/year, CreditBuilder Plus for $1,099/year and CreditBuilder Premium for $1,599/year (collectively, the 'CreditBuilder products')." Dun & Bradstreet maintains an extensive database of information about the creditworthiness of small business, and licenses the information to use in making credit decisions. It has more than 205 million business records on companies around the world, according to its Feb. 29, 2012 Form 10-K filed with the Securities & Exchange Commission. Businesses must have a Dun & Bradstreet-assigned Data Universal Number System (DUNS) number to apply for a government contract, according to the complaint. "Defendants routinely stress the importance of a DUNS number and mislead customers into believing that they can obtain a DUNS number by purchasing a CreditBuilder product. In truth, DUNS numbers are automatically generated by D&B prior to any solicitation of the customer," the complaint states. Dun & Bradstreet trains its sales force on how to "hard-sell" credit-monitoring products by using false information, the class claims. "After bringing the weight of the Dun & Bradstreet name to bear upon target customers, the defendants employ other unlawful and deceptive sales tactics to instill fear in the minds of target customers. As set forth below, defendants issue uniform solicitations which falsely claim that: (a) 'inquiries' have been made about the target customer's credit; (b) the target customer has an 'incomplete' credit profile with D&B; and/or (c) the target customer has a Supplier Evaluation Risk ('SER') rating of 'High Risk of Financial Stress.' Each of these claims causes a small business owner reasonable and understandable concern, especially coming from Dun & Bradstreet. In the end, defendants strong-arm thousands of small businesses into purchasing CreditBuilder products each year by falsely claiming that the products will solve the 'problem' or dramatically improve the customer's credit profile," according to the complaint. "Sales agents are given very little information about the small businesses listed in their sales queues. Despite this lack of meaningful information about the credit profile or needs of individual target customers, defendants train their sales agents to falsely tell every target customer that there have been multiple 'inquiries' into the small business's credit profile. So universal and indiscriminate is this tactic that sales agents frequently inform brand new businesses that there have been inquiries, when the business is too young to have had any, or that a defunct business has had inquiries, when it has been non- operational long enough not to have had any." O&R Construction claims it was forced to buy Creditbuilder products in order to dispute false information on its credit reports. "Indeed, defendants' customer service representatives, sales agents and websites throw up numerous road blocks to those business owners who attempt to dispute inaccurate 'delinquencies' without purchasing a CreditBuilder product. Defendants make it virtually impossible for a business owner to dispute negative credit references even though business owners should be allowed to dispute negative references for free," the complaint states. "DBCC [lead defendant Dun & Bradstreet Credibility Corp.] also applies a nonsense category called DUNS Support Status ('DS Status') to any business who has not purchased a CreditBuilder product, implying that the business is in credit jeopardy or there is something wrong with its DUNS number. Defendants train their sales agents to tell target customers that a business in 'DS Status' will be perceived by the business community as either a start-up with no financial record or a struggling company that is on the verge of failure. Of course, sales agents offer 'verification' to remove this false and misleading appellation through the CreditBuilder products for the cost of one of the products, as well as a 'one time activation fee of $149 just to set up the account.'" According to the 31-page complaint: "Businesses must 'pay to play' to maintain a favorable credit rating and score," and "Despite following the CreditBuilder product protocols, customers find that the product has failed to improve their business credit score or report, or otherwise perform as defendants promised." And Dun & Bradstreet plays the game over and over again, the class claims: "CreditBuilder products must be renewed on an annual basis. When existing customers are satisfied with a strong credit score and report, they may choose not to renew their CreditBuilder product subscription. After expiration, these customers find that their D&B credit rating has fallen dramatically and they have been classified by DBCC as in financial risk and possibly failure. This occurs because, when a customer stops paying for CreditBuilder services, defendants intentionally lower the customer's D&B score and rating." O&R Construction, owned Orin and Robyn Kolaitis, claims it was duped into buying the worthless credit products based on Dun & Bradstreet's false information: "One of the defendants' sales agents told Mrs. Kolaitis over the phone that O&R's credit rating was very low, that the company was rated a 'severe risk' and that there were some negative payment experiences on its credit report. This is a uniform sales misrepresentation used by defendants to induce plaintiff to purchase the CreditBuilder products. These 'negative payment experiences' included (i) a cash account purportedly opened in 2011 in the amount of $50 and (ii) a 'slow pay' account. These negative payment experiences were erroneous. "When Mrs. Kolaitis explained that the claims were untrue, the sales agent told her that she could (a) contest the erroneous items on her report and (b) submit trade references to improve her score -- if she bought the CreditBuilder product." But O&R claims that even after it bought the product, Dun & Bradstreet lowered its credit rating because it rejected the references she submitted. "The reason for this rejection was that: Dun & Bradstreet independently collects trade references from about 8,000 creditors that regularly report to it; these references are called 'trade tape.' Defendants have a secret, internal rule that trade references submitted through CreditBuilder will be rejected if they already appear on trade tape. This restriction is not disclosed to customers when purchasing CreditBuilder products," the complaint states. O&R claims Dun & Bradstreet violated antitrust laws by conspiring to make its CreditBuilder products the only products available on the market that can address D&B's small business credit reports, and by monopolizing DUNS number-related credit monitoring. They want Dun & Bradstreet enjoined from wrongful marketing and sales of credit-monitoring products. They also want disgorgement and actual and punitive damages for violation of the Washington Consumer Protection Act, negligent misrepresentation, fraudulent concealment, breach of contract and unjust enrichment. Their lead counsel is Brad Moore -- brad@stritmatter.com -- with Stritmatter Kessler Whelan & Coluccio. DYNEGY INC: Appeal in "Silsby" Class Action Suit Remains Pending ---------------------------------------------------------------- An appeal from a bankruptcy court ruling with respect to a securities class action lawsuit captioned Charles Silsby v. Carl C. Icahn, et al. remains pending, according to Dynegy Inc.'s November 7, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2012. In connection with the prepetition restructuring and corporate reorganization of Dynegy Holdings, LLC, Dynegy Northeast segment, Hudson Power, L.L.C., Dynegy Danskammer, L.L.C. and Dynegy Roseton, L.L.C. (collectively, the "DH Debtor Entities") and their non-debtor affiliates in 2011 (the "2011 Prepetition Restructuring"), and specifically the DMG Transfer (On Sept. 1, 2011, DH sold 100 percent of the outstanding membership interests of Dynegy Coal Holdco to Dynegy), a putative class action stockholder lawsuit captioned Charles Silsby v. Carl C. Icahn, et al., Case No. 12CIV2307 (the "Securities Litigation"), was filed in the United States District Court of the Southern District of New York. The lawsuit challenged certain disclosures made in connection with the DMG Transfer. The Company believes the plaintiff's complaint lacks merit and the Company will oppose the Securities Litigation vigorously. As a result of the filing of the voluntary petition for bankruptcy by Dynegy Inc., this lawsuit was stayed as against Dynegy Inc. and as a result of the confirmation of the Plan, the claims against Dynegy Inc. in the Securities Litigation are permanently enjoined. On August 24, 2012, the Lead Plaintiff in the Securities Litigation filed an objection to the confirmation of the Plan asserting, among other things, that Lead Plaintiff should be permitted to opt-out of the non-debtor releases and injunctions (the "Non-Debtor Releases") in the Plan on behalf of all putative class members. The Company opposed that relief. On October 1, 2012, the Bankruptcy Court ruled that Lead Plaintiff did not have standing to object to the Plan and did not have authority to opt- out of the Non-Debtor Releases on behalf of any other party-in- interest. Accordingly, the Securities Litigation may only proceed against the non-debtor defendants with respect to members of the putative class who individually opted out of the Non-Debtor Releases. The Lead Plaintiff filed a notice of appeal on October 10, 2012. ENERGYSOLUTIONS INC: March 15 Settlement Fairness Hearing Set ------------------------------------------------------------- Robbins Geller Rudman & Dowd LLP on Dec. 17 issued a statement pursuant to an order of the United States District Court for the Southern District of New York: UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK Civil Action No. 1:09-cv-08633-JGK (Consolidated) CLASS ACTION SUMMARY NOTICE CITY OF ROSEVILLE EMPLOYEES' RETIREMENT SYSTEM on Behalf of Itself and All Others Similarly Situated, Plaintiff, vs. ENERGYSOLUTIONS, INC., et al., Defendants. TO: ALL PERSONS WHO ACQUIRED THE COMMON STOCK OR DEPOSITORY SHARES OF ENERGYSOLUTIONS, INC. ("ES" OR THE "COMPANY") IN OR TRACEABLE TO THE COMPANY'S OFFERING OF SECURITIES ON OR ABOUT NOVEMBER 14, 2007 OR JULY 24, 2008 (THE "OFFERINGS") OR PURCHASED ES COMMON STOCK OR DEPOSITORY SHARES BETWEEN NOVEMBER 14, 2007 AND OCTOBER 14, 2008, INCLUSIVE (THE "CLASS PERIOD") YOU ARE HEREBY NOTIFIED that pursuant to an Order of the United States District Court for the Southern District of New York, a hearing will be held on March 15, 2013, at 2:30 p.m., before the Honorable John G. Koeltl, at the Daniel Patrick Moynihan United States Courthouse, Courtroom 12B, 500 Pearl Street, New York, NY 10007, for the purpose of determining (1) whether the proposed settlement of the Action for the sum of Twenty-Six Million Dollars ($26,000,000) in cash should be approved by the Court as fair, reasonable, and adequate; (2) whether, thereafter, this Action should be dismissed with prejudice against Defendants as set forth in the Revised Settlement Agreement dated as of November 19, 2012; (3) whether the Plan of Distribution of settlement proceeds is fair, reasonable, and adequate and therefore should be approved; and (4) the reasonableness of the application of Lead Counsel for the payment of attorneys' fees and expenses incurred in connection with this Action, together with interest thereon, and payment to Lead Plaintiffs for their expenses incurred representing the Class. If you acquired or purchased ES common stock or depository shares during the period November 14, 2007 through October 14, 2008, inclusive, your rights may be affected by this Action and the settlement thereof. If you have not received a detailed Notice of Pendency and Proposed Settlement of Class Action and a copy of the Proof of Claim and Release form, you may obtain copies by writing to EnergySolutions Securities Litigation, Claims Administrator, c/o Gilardi & Co. LLC, P.O. Box 990, Corte Madera, CA 94976-0990, or by downloading this information at http://www.gilardi.com If you are a Class Member, in order to share in the distribution of the Net Settlement Fund, you must submit a Proof of Claim and Release postmarked no later than March 14, 2013, establishing that you are entitled to a recovery. You will be bound by any judgment rendered in the Action unless you request to be excluded, in writing, to the above address, postmarked by February 7, 2013. Any objection to any aspect of the Settlement must be filed with the Clerk of the Court no later than February 7, 2013, and received by the following no later than February 7, 2013: Counsel for Lead Plaintiffs: Helen J. Hodges, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 655 West Broadway, Suite 1900 San Diego, CA 92101 Samuel H. Rudman, Esq. David A. Rosenfeld, Esq. Evan J. Kaufman, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 58 South Service Road, Suite 200 Melville, NY 11747 Attorneys for Defendants EnergySolutions, ENV, and the Individual Defendants: Bruce D. Angiolillo, Esq. Jonathan K. Youngwood, Esq. Evan I. Cohen, Esq. SIMPSON THACHER & BARTLETT LLP 425 Lexington Avenue New York, NY 10017-3954 Counsel for Defendants Credit Suisse Securities (USA) LLC, J.P. Morgan Securities LLC (f/k/a J.P. Morgan Securities Inc.), and Morgan Stanley & Co. LLC (f/k/a Morgan Stanley & Co. Incorporated): Adam S. Hakki, Esq. Daniel C. Lewis, Esq. SHEARMAN & STERLING LLP 599 Lexington Avenue New York, NY 10022 E-mail: ahakki@shearman.com daniel.lewis@shearman.com PLEASE DO NOT CONTACT THE COURT OR THE CLERK'S OFFICE REGARDING THIS NOTICE. DATED: December 3, 2012 BY ORDER OF THE COURT UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK FIDELITY: Sued for Wrongfully Denying Hurricane-Related Claims -------------------------------------------------------------- Sarah Nathan, writing for The Jersey Journal, reports that the definition of a basement is the focal point of a class action lawsuit that deals with insurance claims filed for damages caused by Hurricane Irene in 2011 and superstorm Sandy in late October. The lawsuit is one of the first to include both Sandy and Irene claims and was filed on Dec. 13 in the Federal District Court of New Jersey by Union City-based attorney Jeffrey Bronster. Nine local and national insurance companies, including Fidelity, Travelers and State Farm are named and accused of wrongfully denying claims related to Irene and Sandy and misinterpreting the term "basement." "This is dealing with the issue of whether or not ground-floor units have been properly classified as a basement," said Mr. Bronster. The insurance companies named in the suit participate in the federal Write Your Own program, which allows insurance companies to work with the Federal Emergency Management Agency to write the Standard Flood Insurance Policy (SFIP) in their own names. Mr. Bronster said the lawsuit will represent everyone in New Jersey insured by the companies named in the lawsuit, and the suit contains sub-classes specifically focused on Jersey City and Hoboken property and business owners. The only plaintiff currently listed by name is a Jersey City man, Patrick Donnelly, who owns a house on Grove Street. According to the complaint, Mr. Donnelly had flood insurance through WYO with New Jersey Re-Insurance Company and had a claim denied after Hurricane Irene because his ground floor was identified as a basement. "(Donnelly's first floor) is not elevated, but it is not a basement either," said Mr. Bronster. "It gets very technical." Requests for comment from New Jersey Re-Insurance Company were not returned. The SFIP defines a basement as "any area of the building, including any sunken room or sunken portion of a room, having its floor below ground level (subgrade) on all sides." The SFIP offers limited coverage for damages in basements, the complaint said. Mr. Bronster has included claims for Sandy in the lawsuit because he hopes to avoid improper denials similar to those from Irene. Mr. Bronston said that he has held community meetings and has identified other people who will join the class action. "Unfortunately, the homeowners aren't even aware that they may have a cause of action," said Mr. Bronster. "Because you get adjusters that come out from the insurance companies and tell them it's not covered because it's a basement. They have a limited understanding at best at what a basement is or isn't under their policy." Mr. Donnelly and the other plaintiffs are seeking compensatory damages and pre-judgment interest. HILTON WORLDWIDE: Faces Overtime Class Action in California ----------------------------------------------------------- Courthouse News Service reports that Hilton Worldwide stiffed hourly employees for overtime, a class action claims in Orange County Court. HOFFMANN-LA ROCHE: Seeks Recusal of Judge Carol Higbee in MDL ------------------------------------------------------------- New Jersey Law Journal reports that in the years-long, multicounty litigation in New Jersey over Hoffmann-La Roche's Accutane acne medication, the drug maker is asking for the recusal of Atlantic County Superior Court Judge Carol Higbee, charging that the judge's words and actions "inexorably lead to the conclusion that the Court is no longer impartial and that its appearance of impartiality is irretrievably lost." HONDA: Faces Class Action Over Defective Stability-Assist System ---------------------------------------------------------------- Courthouse News Service reports that the 2005 Honda Pilot has a defective stability-assist system that causes the brakes to slam on without warning, a class action claims in Los Angeles Superior Court. JOHNSON & JOHNSON: Sued Over Deceptive Suncreen Product Labels -------------------------------------------------------------- New Jersey Law Journal reports that a putative class action filed in New Jersey alleges Neutrogena, a subsidiary of Johnson & Johnson, misled consumers by labeling sunscreen products as "sunblock," "waterproof" and "sweatproof" despite FDA regulations banning those terms. The suit seeks certification of a nationwide class of persons who bought Neutrogena sun protection products within four years of the complaint's filing. LG CHEM: Fixes Prices of Lithium Ion Batteries, Class Suit Says --------------------------------------------------------------- Gene Powers, Individually and on Behalf of All Others Similarly Situated v. LG Chem America, Inc., LG Chem, Ltd., Panasonic Corporation, Panasonic Corporation of North America, Sanyo Electric Co., Ltd., Sanyo North America Corporation, Sony Corporation, Sony Energy Devices Corporation, Sony Electronics, Inc., Samsung SDI Co., Ltd., Samsung SDI America, Inc., Hitachi, Ltd., Hitachi Maxell, Ltd. and Maxell Corporation of America, Case No. 3:12-cv-06118 (N.D. Calif., December 3, 2012) is brought on behalf Classes of similarly situated persons, against the world's largest manufacturers of Lithium Ion Rechargeable Batteries for conspiring to fix the prices of those batteries. The Defendants and other co-conspirators agreed to fix prices of Lithium Ion Rechargeable Batteries, Mr. Powers asserts. He contends that as a direct result of the anticompetitive and unlawful conduct of the Defendants, he and the Classes paid artificially inflated prices for Lithium Ion Rechargeable Batteries during the Class Period and have, thereby, suffered antitrust injury to their business or property. Mr. Powers is a resident of San Francisco, California. During the Class Period, he purchased several personal electronic products containing Lithium Ion Rechargeable Batteries manufactured by a Defendant. LG Chem America is a New Jersey corporation based in Englewood Cliffs, New Jersey, and a wholly owned subsidiary of LG Chem. LG Chem is a Korean corporation based in Seoul, South Korea. LG Chem is an affiliate of Seoul-based conglomerate LG Electronics. Panasonic is a Japanese Corporation based in Osaka, Japan. Panasonic was formerly known as Matsushita Electric Industrial Co. Panasonic manufactures and sells Lithium Ion Rechargeable Batteries under the Panasonic name and also under the name of Defendant and wholly owned subsidiary Sanyo Electric Co., Ltd. Panasonic Corporation of North America, formerly known as Matsushita Electric Corporation of America, is a Delaware Corporation based in Secaucus, New Jersey, and a wholly owned and controlled subsidiary of Panasonic Corporation. Sanyo is a Japanese corporation based in Osaka, Japan. Sanyo North America Corporation is a Delaware corporation based in San Diego, California, and a wholly owned subsidiary of Sanyo Electric Co., Ltd. Sony Corporation is a Japanese corporation based in Tokyo, Japan. Sony Energy is a Japanese corporation based in Fukushima, Japan. Sony Energy Devices Corporation is a wholly owned subsidiary of Sony Corporation. Sony Electronics is a Delaware corporation based in San Diego, California and a wholly owned subsidiary of Sony Corporation. Samsung SDI is a Korean corporation based in Gyeonggi, South Korea, and 20% owned by the Korean conglomerate Samsung Electronics, Inc. Samsung SDI America is a California corporation based in San Jose, California, and a wholly owned subsidiary of Samsung SDI. Hitachi Ltd. is a Japanese company based in Tokyo, Japan. Hitachi Maxell is a Japanese corporation based in Tokyo, Japan, and a wholly owned subsidiary of Hitachi, Ltd. Maxell is a New Jersey corporation based in Woodland Park, New Jersey. The Defendants manufacture, market, and sell Lithium Ion Rechargeable Batteries throughout the United States and the world. The Defendants collectively controlled approximately two-thirds or more of the worldwide market for Lithium Ion Rechargeable Batteries throughout this period, and over 80 percent of the market in the early part of this period. The Plaintiff is represented by: Bonny E. Sweeney, Esq. Thomas R. Merrick, Esq. Alexandra S. Bernay, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 655 West Broadway, Suite 1900 San Diego, CA 92101-3301 Telephone: (619) 231-1058 Facsimile: (619) 231-7423 E-mail: bonnys@rgrdlaw.com tmerrick@rgrdlaw.com xanb@rgrdlaw.com - and - Samuel H. Rudman, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 58 South Service Road, Suite 200 Melville, NY 11747 Telephone: (631) 367-7100 Facsimile: (631) 367-1173 E-mail: srudman@rgrdlaw.com - and - Roderick P. Bushnell, Esq. Alan M. Caplan, Esq. BUSHNELL & CAPLAN LLP 900 Kearny Street, Suite 299 San Francisco, CA 94133-5124 Telephone: (415) 217-3800 Facsimile: (415) 217-3820 E-mail: rod@bcfmlaw.com acapbcf@aol.com LG ELECTRONICS: Recalls 457,000 Top-Loading Washing Machines ------------------------------------------------------------ The U.S. Consumer Product Safety Commission, in cooperation with LG Electronics Inc., of South Korea, announced a voluntary recall of about 457,000 Top-Loading Washing Machines. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. An unbalanced load can cause the washing machine to shake excessively and the drum to come loose during use, posing a risk of injury to consumers and property damage to the surrounding area. LG has received at least 343 reports of washing machines vibrating excessively, of which at least 187 involved minor property damage. One minor injury has been reported. The recall involves three LG and three Kenmore Elite Brand top- loading washing machine models manufactured between February 2010 and November 2011. The units come in beige, white and graphite steel colors. Recalled washing machines have the following model and serial number ranges: Brand Model Serial Number Range ----- ----- ------------------- LG WT5001CW 002KW******* Thru 111KW******* WT5101HV 002KW******* Thru 111KW******* WT5101HW 002KW******* Thru 111KW******* Kenmore Elite 29002 005KW******* Thru 111KW******* 29272 005KW******* Thru 111KW******* 29278 005KW******* Thru 111KW******* The model and serial number can be found on a label fixed on the rating plate on the top back of the washing machine. Pictures of the recalled products are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml13/13073.html The recalled products were manufactured in South Korea. The LG models were sold at Best Buy, Home Depot, Kmart, Sears and local retailers nationwide. Kenmore Elite models were sold at Kmart and Sears. All were sold from April 2010 to December 2012 for between $899 and $1,099. Consumers should immediately contact LG or Sears for a free in- home repair of the machine. Consumers will also receive supplemental information to be inserted into their owner's manual and a new caution label to be placed on the washing machine. Consumers who have observed their recalled washing machine shaking excessively should immediately stop using it. Consumers should be aware that loading their machines with water-proof or water- resistant items, such as mattress pads, mattress covers and similar items, increases the chances of loads being unbalanced. LG may be reached toll-free at (855) 400-4639, from 8:00 a.m. to 7:00 p.m. Central Time Monday through Friday, or 8:00 a.m. to 2:00 p.m. Central Time Saturday, or online at http://www.lg.com/us/and click on Public Notices. For Kenmore or LG washers purchased at Sears or Kmart, call toll-free at (888) 812-2935, from 7:00 a.m. to 7:00 p.m. Central Time Monday through Friday, or from 7:00 a.m. to 6:00 p.m. Central Time Saturday, or online at http://www.sears.com/and click on Customer Service Home then Product Recalls in the Product Information section. MIDWEST GENERATION: Two Negligence Suits Still Pending in Ill. -------------------------------------------------------------- Midwest Generation, LLC continues to defend two putative class action complaints over charges of nuisance and negligence, according to the Company's November 1, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2012. In January 2012, two complaints were filed against Midwest Generation in Illinois state court by residents living near the Crawford and Fisk Stations on behalf of themselves and all others similarly situated, each asserting claims of nuisance, negligence, trespass, and strict liability. The plaintiffs seek to have their suits certified as a class action and request injunctive relief, as well as compensatory and punitive damages. The complaints are similar to two complaints previously filed in the Northern District of Illinois, which were dismissed in October 2011 for lack of federal jurisdiction. Midwest Generation's motions to dismiss the cases were denied in August 2012, following which the plaintiffs filed amended complaints alleging substantially similar claims and requesting similar relief. Midwest Generation LLC was formed on July 12, 1999, as a Delaware limited liability company with Edison Mission Midwest Holdings Co. as the sole owner. Edison Mission Midwest Holdings is a wholly owned subsidiary of Midwest Generation EME, LLC, which is in turn a wholly owned subsidiary of EME. EME is an indirect wholly owned subsidiary of Edison International. Midwest Generation was formed for the purpose of owning or leasing, making improvements to, and operating and selling the capacity and energy of, the power generation assets it purchased from Commonwealth Edison, which are referred to as the Midwest Generation plants. Midwest Generation acquired the Midwest Generation plants on December 15, 1999. MORGAN STANLEY: Judge Narrows Claims in Overtime Class Action ------------------------------------------------------------- Rose Bouboushian at Courthouse News Service reports that Morgan Stanley need not face most state-law claims related to how it paid a class of commission-based financial advisors, a federal judge ruled. The multidistrict litigation is led by former Morgan Stanley Smith Barney financial advisers Jimmy Kuhn, Robert Gibson, Nick Pontilena, Gregg Vanasse, Howard Rosenblatt and Denise Otten. Each filed a separate complaint against the firm last year in Connecticut, New Jersey, New York, and Rhode Island, alleging violations of each state's laws and the federal Fair Labor Standards Act. They said Morgan Stanley applied wage deductions to their paychecks without permission for items such as overhead, and that it denied overtime or reimbursement for expenses such as messenger services, overnight mail delivery and client lunches. After the Judicial Panel on Multidistrict Litigation transferred the cases to New Jersey federal court for pretrial purposes, the plaintiffs filed a consolidated class and collective-action complaint. They seek to represent current and former financial advisors and financial advisor trainees. Morgan Stanley moved to dismiss the Rhode Island overtime claim, the New Jersey failure to maintain records claim, and all four state wage deduction claims. U.S. District Judge William Martini agreed on Dec. 14, leaving the class with the as-yet unopposed overtime claims under federal law and the laws of New York, New Jersey and Connecticut. In nixing the claim advisors' Rhode Island overtime claim, the court noted that Rhode Island has only recently explicitly adopted a private right of action for overtime claims under the Minimum Wage Act. "Since the cases encompassed in this MDL were filed in 2011, Morgan Stanley maintains that the new law is not retroactive; plaintiffs appear to agree," Judge Martini wrote, abbreviating multidistrict litigation. "Because pre-existing law did not recognize a private right of action, the court will dismiss count seven with prejudice." The state-law claims of impermissible wage deductions all failed. For example, "under Connecticut law, deductions are not 'impermissible' in the abstract," Judge Martini wrote. "Instead, deductions are impermissible relative to a given agreement. The complaint does not so much as quote a single provision of plaintiffs' contract. Accordingly, any claim that Morgan Stanley 'impermissibly' deducted money from plaintiffs' wages is entirely conclusory. The court will dismiss this count without prejudice." Meanwhile the court deemed the failure-to-maintain-records claim duplicative. "Even if additional damages were available, plaintiffs have waived them. Ultimately, if plaintiffs are to recover compensatory damages under count six, they will have to demonstrate that Morgan Stanley shorted them on compensation," Judge Martini wrote. "But demonstrating that Morgan Stanley shorted them on compensation is exactly what plaintiffs attempt to do with their other claims." Morgan Stanley also moved to strike the class and collective allegations, but Judge Martini said it would be premature to strike overtime class allegations at this time. He did, however, strike trainees from the putative impermissible deductions classes after noting that this aspect was not properly alleged in the complaint. The plaintiffs have 30 days to file a second amended complaint consistent with Judge Martini's opinion. A copy of the Opinion in In Re Morgan Stanley Smith Barney LLC Wage and Hour Litigation, MDL No. 2280 (D. N.J.), is available at: http://www.courthousenews.com/2012/12/18/Morgan%20Stanley.pdf NEW YORK CITY, NY: Kerr & Wagstaffe Comments on Red Light Suit -------------------------------------------------------------- Kerr & Wagstaffe on Dec. 17 commented that although nearly 550 communities in the United States are noted to have red light traffic cameras installed to reinforce driver safety, many feel that these devices are unlawful in their operation. A recent article from CBS News highlights a recent discovery by AAA New York engineers that suggests many New York City red light cameras do not allow enough time for drivers to pass through before being noted as violators. As a result, those who have received tickets for running red lights are threatening the city with a class- action lawsuit. Kerr & Wagstaffe, a California-based law firm specializing in class-action cases, responds to the specific nature of these legal claims. The article states, "By federal law, drivers have to have enough time to get through a yellow light -- three seconds at the typical 30-mile-per-hour intersection. Back in October, engineers at AAA New York discovered a problem. At some city intersections with the cameras, the yellow lights were almost a half-second too fast." In response to this finding, Robert Sinclair, AAA motor club New York spokesperson, notes that although AAA is in support of the safety measures provided by these red light cameras, they are rendered inefficient if simply used as a "revenue enhancement tool." According to Kerr & Wagstaffe, public action against red light camera programs deliver varied results to the community. In a recent press statement, Kerr & Wagstaffe notes, "Class action lawsuits seeing to prohibit the use of red light cameras have met with mixed success in the courts." Although the state of New Jersey has suspended its red light camera program as a response to similar defective findings, the New York City Department of Transportation claims, "There has been no substantiation that any red light cameras in this report were improperly timed or led to any violation being issued incorrectly." Although the claims have yet to be recognized, the article notes that "as many as six million ticketed New York drivers" affected by these cameras may benefit from a class-action lawsuit against the city. However, Kerr & Wagstaffe maintains in its press statement, "Ultimately, it comes down to whether the accused jurisdiction has used the appropriate procedural safeguards to provide for due process rights of the alleged red light runners." NORCO BICYCLES: Recalls 90 Havoc Bicycles Due to Risk of Injury --------------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with Norco Bicycles, a division of LTP Sports Group Inc., of Port Coquitlam, British Columbia, Canada, announced a voluntary recall of about 90 2011 Havoc Bicycles. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. The bicycle frame can crack at the joint where the top tube meets the down tube. A cracked tube can separate and cause the rider to lose control, posing a risk of injury or death. The firm has received three reports of cracked frames. No injuries have been reported. This recall involves 2011 Havoc 24-inch and 26-inch bicycles. The 24-inch bicycles were sold in semi-matte grey and the 26-inch in semi-matte red. On some of the bicycles, "Norco" is printed on the firm's crest that is affixed to the head tube. Bicycle frames included in this recall have serial numbers that begin with K10DQ, K10FQ, K10IQ, K10KQ P10K, P10F or P11B. The serial number is stamped on the underside of the bottom bracket, below the word "Havoc." Pictures of the recalled products are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml13/13074.html The recalled products were manufactured in China and sold at authorized Norco dealers nationwide from November 2010 to September 2011 for about $600. Consumers should immediately stop using the recalled bike and return it in an authorized Norco dealer for a replacement. Norco Bicycles may be reached at (800) 227-5579, from 8:00 a.m. to 5:00 p.m. Pacific Time Monday through Friday. Consumers can also visit the firm's Web site at http://www.norco.com/and click on "Recall" for more information. NORTHWESTERN MUTUAL: Annuity Class Action Remains in Federal Court ------------------------------------------------------------------ Joe Forward, writing for State Bar of Wisconsin, reports that the class of Wisconsin plaintiffs fighting to keep its case against Northwestern Mutual out of federal court recently lost, as the U.S. Court of Appeals for the Seventh Circuit concluded that annuity contract issues must remain in federal court for resolution. Northwestern Mutual Life Insurance Company sold a specific annuity product to approximately 36,000 people across the country. About 3,000 live in Wisconsin. In 1985, the insurance company changed the method for calculating the annual annuity dividend. In 2001, annuity policyholders filed a class action lawsuit in Wisconsin state court seeking to represent annuitants nationwide. They alleged the changes violated annuity contract terms. After the court refused to certify the nationwide class, plaintiffs sought to proceed as a class limited to annuitants who live in Wisconsin. They wanted a declaratory judgment that Northwestern Mutual's 1985 change to annuity dividend calculations was invalid. The Wisconsin circuit court judge certified the class and in a "sweeping decision," declared that Northwestern Mutual violated the annuity contracts and breached fiduciary duties. The class then sought damages for annuitants in every state through an amended complaint, based on the declaratory judgment announced in Wisconsin. Northwestern Mutual asked for removal to federal court under the federal Class Action Fairness Act (CAFA). But the plaintiffs asked for remand to state court, arguing that CAFA specifically excludes class action claims involving "internal affairs or governance of a corporation." The internal-affairs doctrine recognizes that only one state should have the authority to regulate a corporation's internal affairs, and Northwestern Mutual is based in Wisconsin. The class plaintiffs said Northwestern Mutual is a mutual insurer, and the policyholders have ownership interests in the governance and profits of mutual insurers. Northwestern Mutual argued that suits involving annuity contracts don't involve a corporation's "internal affairs" and choice-of-law provisions in the annuity contracts prevent application of Wisconsin corporate law to policyholders in other states. The U.S. District Court for the Eastern District of Wisconsin remanded the case to state court, concluding that disputes of policies issued by mutual insurers relate to "internal affairs." However, a three-judge panel for the Seventh Circuit Court of Appeals recently vacated the district court decision in LaPlant v. Northwestern Mutual Life Ins. Co. "LaPlant and the class have not cited any decision, by any state court, applying the internal-affairs doctrine to claims by annuitants based on promises made in their policies, and we conclude that Section 1453(d)(2) does not apply," wrote Judge Frank Easterbrook. "This is a contract case, not a corporate governance case," Judge Easterbrook wrote. "Every state enforces promises, but states differ in how they calculate damages and when (if ever) punitive damages are available for breach of contract." PACIFIC BIOSCIENCES: No Order on Plea to Dismiss "Primo" Suit Yet ----------------------------------------------------------------- Pacific Biosciences of California, Inc. is awaiting a court decision on its bid to dismiss the class action captioned Primo v. Pacific Biosciences of California, Inc., et al., Case No. 4:11-CV- 06599, according to the Company's November 1, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2012. The "Primo" action is a putative class action lawsuit filed on December 21, 2011, in the U.S. District Court for the Northern District of California against the Company and certain of its officers and directors. On April 11, 2012, an amended complaint was filed in the Primo action, which added another plaintiff, Evan Powell. As amended, the complaint alleges violations of several provisions of the federal securities laws arising out of alleged misstatements or omissions in our August 16, 2010 registration statement (effective, as amended, on October 26, 2010), and by the Company and/or its employees during the class period. The complaint seeks, among other things, compensatory damages, rescission, and attorneys' fees and costs on behalf of the putative class. On April 6, 2012, Mr. Primo was appointed lead plaintiff in the action. Defendants in the Primo action have filed a motion to dismiss the amended complaint. A hearing on Defendants' motion to dismiss was held on October 11, 2012. A decision on the motion to dismiss has not yet been issued. Pacific Biosciences of California, Inc., is a biotechnology company founded in 2004 that develops and manufactures systems for gene sequencing and some novel real time biological observation. They describe their platform as single molecule real time sequencing (SMRT), based on the properties of zero-mode waveguides. PACIFIC BIOSCIENCES: Court Allows Shareholders to Amend Suit ------------------------------------------------------------ A California state court has given plaintiffs in a shareholder litigation against Pacific Biosciences of California, Inc. leave to amend their lawsuit, according to the Company's November 1, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2012. Three putative class action lawsuits were filed against the Company and certain of its officers and directors in the Superior Court of the State of California, County of San Mateo. These actions were brought on behalf of all persons or entities who purchased or otherwise acquired the Company's common stock pursuant or traceable to the Company's initial public offering (IPO) of common stock in October 2010. The claims were initiated between October 2011 and April 2012 and have since been consolidated as In re Pacific Biosciences of California Inc. Shareholder Litigation, Case No. CIV509210 (the State Court Action). The plaintiffs in the State Court Action seek, among other things, compensatory damages, rescission, and attorneys' fees and costs on behalf of the putative class. Defendants in the State Court Action filed a motion to stay that lawsuit in deference to an action commenced by a certain "Primo" pending in federal district court. On May 25, 2012, the Superior Court denied Defendants' motion to stay. Defendants in the State Court Action also filed a demurrer to certain of plaintiffs' claims, which was sustained in part and overruled in part on October 16, 2012. The Court also granted plaintiffs leave to amend their complaint. Pacific Biosciences of California, Inc., is a biotechnology company founded in 2004 that develops and manufactures systems for gene sequencing and some novel real time biological observation. They describe their platform as single molecule real time sequencing (SMRT), based on the properties of zero-mode waveguides. POLARIS INDUSTRIES: Recalls 82 Pro-RMK 600 and 800 Snowmobiles -------------------------------------------------------------- About 82 Snowmobiles were voluntarily recalled by Polaris Industries Inc., of Medina, Minnesota, in cooperation with the CPSC. Consumers should stop using the product immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. The bolt attaching the front, lower left shock can fail and cause the operator to lose control of the vehicle. This poses a serious hazard of injury or death. No incidents or reports have been received. The recall involves 2013 Polaris Pro-RMK 600 and 800 snowmobiles. The snowmobiles come in red, white and black. "Pro-RMK" is on the lower right and left sides of the hood. The engine size and the letters "ES" or the words "Limited Edition" are on the upper right and left sides of the hood. The numbers "155" or "163" are on the rear of the tunnel. "Polaris" appears on the sides of the seat. The model number and serial number can be found on the right hand side of the tunnel below the seat. This recall includes the models listed below: Model Name Model Number ---------- ------------ 600 PRO RMK 155 S13CG6GSA 800 PRO RMK 163 S13CH8GSA 800 PRO RMK 163 ES S13CH8GSL Pictures of the recalled products are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml13/13711.html The recalled products were manufactured in the United States of America and sold at Polaris Snowmobile dealers nationwide from August 2012 through October 2012 for between $10,800 and $12,500. Consumers should immediately stop using the vehicles and contact any Polaris snowmobile dealer to schedule a free repair. Polaris has notified registered consumers directly about this recall. Polaris may be reached toll-free at (888) 704-5290, from 8:00 a.m. to 5:00 p.m. Central Time Monday through Friday, or online at http://www.polaris.com/,then select "Company" on the top menu, then select News & Events for more information. PROSPER MARKETPLACE: Securities Suit Still in Prelim. Stages ------------------------------------------------------------ A securities class action lawsuit initiated in California is still in its preliminary stages, according to Prosper Marketplace, Inc.'s November 7, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2012. On November 26, 2008, plaintiffs, Christian Hellum, William Barnwell and David Booth, individually and on behalf of all other plaintiffs similarly situated, filed a class action lawsuit against the Company and certain of its executive officers and directors in the Superior Court of California, County of San Francisco, California. The lawsuit was brought on behalf of all loan note purchasers on the platform from January 1, 2006, through October 14, 2008. The lawsuit alleges that the Company offered and sold unqualified and unregistered securities in violation of the California and federal securities laws. The lawsuit seeks class certification, damages and the right of rescission against the Company and the other named defendants, as well as treble damages against the Company and the award of attorneys' fees, experts' fees and costs, and pre-judgment and post-judgment interest. On February 25, 2011, the plaintiffs filed a Third Amended Complaint, which removed David Booth as a plaintiff and added Brian Russom and Michael Del Greco as plaintiffs. The new plaintiffs are representing the same putative class and prosecuting the same claims as the previously named plaintiffs. On February 29, 2012, the court granted the plaintiffs' motion for class certification. The Company intends to vigorously defend the class action lawsuit. The Company cannot, however, presently determine or estimate the final outcome of the lawsuit, and there can be no assurance that it will be finally resolved in the Company's favor. If the class action lawsuit is not resolved in the Company's favor, the Company might be obliged to pay damages, and might be subject to such equitable relief as a court may determine. Accordingly, the Company has not recorded an accrued loss contingency in connection with its sale of notes through the platform prior to November 2008. Accounting for loss contingencies involves the existence of a condition, situation or set of circumstances involving uncertainty as to possible loss that will ultimately be resolved when one or more future event(s) occur or fail to occur. An estimated loss in connection with a loss contingency shall be recorded by a charge to current operations if both of the following conditions are met: first, the amount can be reasonably estimated; and second, the information available prior to issuance of the financial statements indicates that it is probable that a liability has been incurred at the date of the financial statements. As of September 30, 2012, the class action lawsuit is in its preliminary stages and its probable outcome cannot presently be determined, nor can the amount of damages or other costs that might be borne by Prosper be estimated. Greenwich Action The Company's insurance carrier with respect to the class action lawsuit, Greenwich Insurance Company ("Greenwich"), denied coverage. On August 21, 2009, the Company filed a lawsuit against Greenwich in the Superior Court of California, County of San Francisco, California. The lawsuit sought a declaration that the Company was entitled to coverage under its policy with Greenwich for losses arising out of the class action lawsuit as well as damages and the award of attorneys' fees and pre- and post- judgment interest. On January 26, 2011, the court issued a final statement of decision finding that Greenwich had a duty to defend the class action lawsuit, and requiring that Greenwich pay the Company's past and future defense costs in the class action lawsuit up to $2.0 million. On July 1, 2011, the Company and Greenwich entered into a Stipulated Order of Judgment pursuant to which the Company agreed to dismiss its remaining claims against Greenwich. On August 12, 2011, Greenwich filed a notice of appeal of the court's decision regarding Greenwich's duty to defend up to $2.0 million. On July 16, 2012, the California Court of Appeal affirmed the trial court's decision. As of September 30, 2012, Greenwich had made payments to the Company in the amount of $2.0 million to reimburse the Company for the defense costs it had incurred in the class action lawsuit. On October 2, 2012, subsequent to the balance sheet date of September 30, 2012, Greenwich made an additional payment of $142,585 to the Company for pre-judgment interest. As a result, Greenwich has now satisfied its obligations with respect to the Company's defense costs for the Hellum lawsuit. Prosper Marketplace, Inc. operates as a peer-to-peer lending marketplace in the United States. It connects prospective borrowers with people who have money and a willingness to lend through an online community. The Company handles funding and servicing of the loan on behalf of the matched borrowers and investors. It is based in San Francisco, California. SALLIE MAE: Students File Class Action Over Abetted Fraud --------------------------------------------------------- Elizabeth Warmerdam at Courthouse News Service reports that Sallie Mae aided and abetted a fraudulent culinary school by issuing student loans at "credit card rates," four students claim in a federal class action. Lead plaintiff Andrew Bradshaw sued SLM Corp. and Sallie Mae, claiming they aided and abetted fraud at the California Culinary Academy, which is not named as a defendant. SLM and its subsidiaries own, manage and service more than 11 million student loans totaling more than $234 billion, according to the 60-page complaint. California Culinary Academy has been sued repeatedly. Twenty-one of its recruiters sued the school in September 2011, claiming the companies that run the for-profit college "run the school like a used-car lot, preying on vulnerable students . . . saddling them with loans they cannot pay back," Courthouse News reported at the time. In a June 2008 class action, the two named plaintiffs claimed they each ran up $50,000 in debts for an education worth no more than $2,000. Both those complaints were in Los Angeles Superior Court. According to the new complaint: "Sallie Mae misled plaintiffs and committed other unlawful conduct of its own, causing plaintiffs to take out enormous loans with credit-card interest rates, when Sallie Mae knew that these students had a relatively small likelihood of being able to repay the loans in full. Plaintiffs now seek to get their lives back on track by having Sallie Mae bear its fair share of the losses. "Plaintiffs had no idea that attending CCA was an economically irrational act. Plaintiffs did not know that a CCA education has little or no value. Nor did they understand that at no relevant time has there been a job market for CCA graduates that pays sufficient wages to enable graduates to pay down the substantial debt they must incur to finance CCA's exorbitant education. "Sallie Mae knew these facts when it issued plaintiffs their high- interest private education loans ('high-interest private loans') to pay for their CCA education. It further knew that CCA needed Sallie Mae to extend these loans in order to carry out its fraudulent recruiting scheme, and Sallie Mae, seeking to profit, happily obliged. The results harm to the plaintiffs has been catastrophic. "Moreover, Sallie Mae knew at all relevant times that there was an unusually high probability that plaintiffs would be unable to make the full payments necessary to keep these high-interest private loans from falling into delinquency and default. And Sallie Mae knew that plaintiffs did not know this. Yet, intent on issuing as many of these loans as possible, Sallie Mae purposefully did not tell plaintiffs any of these facts. "When Sallie Mae loaned CCA purchase money to plaintiffs, it knew CCA students were defaulting on much smaller, lower-interest federal student loans at rates that substantially exceeded the rates at which traditional college students default on such loans. Sallie Mae knew that by setting very high interest rates (typically in the range of 12-15 percent) on its high-interest private loans-often two to four times larger than on federal loans-it was significantly diminishing plaintiffs' chances of fully repaying these loans. Sallie Mae further knew that this would likely result in significantly raising the plaintiff class's high-interest private loan default rates relative to traditional student loan default rates. Sadly, this likelihood has been realized; the putative class has defaulted at extraordinarily high rates." The school lured students with a string of false promises, the class claims. "Among CCA's false and misleading representations were the following: (a) admission to CCA was a competitive and selective process; (b) a CCA education increases graduates' incomes and opportunities in the food-service industry to a degree that makes a CCA education well worth the sky-high tuition (approximately $48,000 for the Culinary Arts Program, $28,000 for the Baking and Pastry Program, and $38,000 for the Management Program) and corresponding student-loan debt; (c) CCA has an extensive network of contacts and close relationships with prestigious restaurants and other food-service employers where CCA graduates can easily obtain employment in one or more of the positions for which CCA promises to train them; (d) CCA has an excellent reputation, and graduates will benefit from that reputation by being able to gain better and more prestigious jobs with a CCA degree than without one; (e) CCA students have an extremely high rate of job placement in jobs for which the students seek to be trained; and (f) the programs can be financed through student loans, with a resulting debt service burden that is reasonable and manageable in light of the income opportunities available to graduate," according to the complaint. Sallie Mae knowingly aided and abetted this fraud for its own profit, the complaint states: "CCA had an agreement with Sallie Mae to recommend Sallie Mae as a 'preferred lender' to prospective students: Sallie Mae would provide these students high-interest private loans to pay the balance of their educational costs not covered by federal grants and loans." Sallie Mae conducted its own research and analysis of CCA's graduation rates and employment statistics of its graduates, so it knew what was going on, the class claims: "Sallie Mae was acutely aware, by the time plaintiffs and class members sought loans to attend CCA, that a CCA education was not worth what it had been a decade prior, that a significant percentage of CCA's students were unemployed or making very low wages, and that CCA students were financially unable to repay fully the high-interest private loans." Three of the four lead plaintiffs are unemployed and all four say they owe significantly more money on their loans than what they took out. Plaintiff Adam Correveau claims he took out a $45,974 loan at 13.125 percent interest. The balance has grown to $145,371. He says he works as a line cook at a restaurant where he makes $14 an hour. Plaintiff Tanif Stephenson took out two loans totaling $16,365 to finance her education at CCA. She has already paid $14,608, but with an interest rate of 13.125 percent, her balance remains $42,385, according to the lawsuit. "Ms. Stephenson's only culinary-related employment since she graduated from CCA was a five-month job as a cashier in a corporate dining cafeteria, where she occasionally performed light preparation work in the kitchen," the complaint states. "Her hourly wage was $9.00. She was unable to find any other culinary work after being laid off from this position, and she believes her CCA credential actually hurt her culinary-job prospects." According to the complaint: "The sad, true fact is that a CCA education does not significantly increase graduates' incomes and opportunities in the food-service industry. CCA's reputation has plummeted since the 1990s. Indeed, food-industry personnel and potential employers snicker that CCA stands for 'Can't Cook Anything.'" While plaintiffs and the class are saddled with debts they cannot repay, Sallie Mae has benefited in two ways, the complaint states: "First, Sallie Mae profited, and intended to profit, by inflating its balance sheet with billions of dollars of loans to plaintiffs and others at similar non-traditional schools. Sallie Mae's scheme intentionally inflated its stock price and attracted potential acquirers. "Second, because the high-interest private loans have such high interest and Sallie Mae's own cost of funds is so low, Sallie Mae can profit even if the loans are never repaid fully. "Sallie Mae's cost of funds (estimated at 1 percent to 2 percent) is negligible compared to its high-interest private loans' typical compound interest rates of 12-15 percent. "Third, because student loans generally are not dischargeable in bankruptcy, Sallie Mae can squeeze out small amounts of money from the student borrowers for the rest of their lives. Sallie Mae demands plaintiffs' small paychecks, even when the payments do not cover the accumulating interest, allowing Sallie Mae to profit while the CCA students' high-interest private loan balances continue to increase." Sallie Mae has acknowledged that it knew the students would not be able to repay the loans, the class claims. "Sallie Mae's chairman acknowledged that these loans were 'predictably not collectible.' He admitted that many students attending CCA and other similarly valueless schools likely would never be able to earn sufficient income to repay in full the loans they were taking out," the complaint states. It adds: "Ignoring the financial burden its actions placed on borrowers, Sallie Mae blithely extended loans it never expected to be repaid fully -- all for the purpose of manipulating its financial reports and increasing its revenue. Sallie Mae was fully aware there was a reasonable likelihood that plaintiffs and class members would be unable to repay their high-interest private loans in full. Yet it intentionally failed to disclose this highly relevant information to plaintiffs and class members at the time that it issued their high-interest private loans." Sallie Mae owns the class members' "high-interest private loans under various names," the complaint states. It serviced the high- interest private loans under the name Sallie Mae Servicing LLP, which was a division of SLM until Dec. 31, 2003, when Sallie Mae Servicing LLP was merged into Sallie Mae Inc., which took over the loan servicing. Plaintiffs seek declaratory judgment, rescission of loan contracts, and disgorgement of unjust profits. They also want compensatory and punitive damages for aiding and abetting fraud, unjust enrichment, and unfair competition. They are represented by Adam Wolf. SHAW GROUP: Settles Shareholder Class Action Over CB&I Sale ----------------------------------------------------------- Ted Griggs and Timothy Boone, writing for The Advocate, report that The Shaw Group Inc. has settled a class-action lawsuit filed by shareholders in 19th Judicial District Court, according to plaintiff firms Robbins Geller Rudman & Dowd LLP and Motley Rice LLC. Under the settlement, which comes a few days before shareholders will vote on the company's $3 billion sale to CB&I, Shaw agreed to release analyses by its financial adviser, Morgan Stanley, showing the company could have increased its share price without selling. The settlement also provides a way for shareholders who vote against the sale to CB&I to get a fair price for their stock. Gentry Brann, a spokeswoman for Shaw, said the Baton Rouge engineering, fabrication and construction company "absolutely believes" the sale offers a fair value to shareholders, since CB&I will pay 72 percent more than what Shaw stock was worth the day before the deal was announced. "This lawsuit was brought by a few small shareholders as is fairly typical in this type of corporate transaction," Ms. Brann said in a statement. One report by Morgan Stanley cited in the suit showed that selling Shaw's 20 percent stake in Westinghouse could add $7 to $16.43 of "theoretical intrinsic value" per share of common stock. Another report showed Shaw could add $11 to $19 per share by executing a variety of strategic alternatives, which included selling Shaw's ownership stake in Westinghouse and buying back shares. In a statement, officials with Robbins Geller Rudman & Dowd LLP and Motley Rice LLC said the settlement "offers unprecedented relief" to shareholders by providing a class-wide, opt-in appraisal right. Typically a fair stock price is determined by a judicial proceeding or an independent value, according to Investopedia.com. An appraisal right protects shareholders, preventing corporations involved in a merger from paying less than the company is worth to shareholders. Meanwhile, Shaw is urging shareholders to vote for the merger during a special shareholders meeting set for 9:00 a.m. on Friday, Dec. 21, at its Essen Lane headquarters. "Shaw's board of directors believes this merger agreement provides the best value to all Shaw shareholders and recommends shareholders vote for the proposal to adopt the merger agreement," J.M. Bernhard Jr., Shaw's chairman, president and chief executive officer, said in a statement. Shaw cannot complete the merger unless the owners of at least 75 percent of the company's common stock vote in favor of the deal. Under the proposed merger, Shaw shareholders will receive $46 in cash and stock -- $41 in cash and 0.13 shares of CB&I stock. SOLTA MEDICAL: "Aesthera" Suit Settlement Funds Paid Out -------------------------------------------------------- A Connecticut federal court gave final approval of a settlement resolving a consumer class action lawsuit against a subsidiary of Solta Medical, Inc., in August, and the settlement funds have been paid out, according to the Company's November 1, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2012. On December 4, 2009, Aesthera Corporation, a subsidiary of Solta, was served with a class action complaint filed in the United States District Court for the District of Connecticut alleging that Aesthera caused unsolicited fax advertisements to be sent to the plaintiffs in violation of the Telephone Consumer Protection Act, or TCPA, and Connecticut state law. The complaint purports to be filed on behalf of a class, and it alleges that Aesthera caused unsolicited fax advertisements to be sent from August 1, 2006 through the present. Plaintiffs seek statutory damages under the TCPA and Connecticut state law, attorneys' fees and costs of the action, and an injunction to prevent any future violations. In May 2010, Aesthera reached an agreement in principle to settle the matter on a class-wide basis by consenting to certification of a settlement class to receive payment out of a settlement fund. On November 5, 2010, the plaintiffs filed an unopposed motion for certification of a settlement class and for preliminary approval of the parties' settlement. On April 15, 2011, the Court denied plaintiffs' motion without prejudice on the grounds that the proposed means of giving notice to the class -- i.e., via fax -- was not adequate. The Court directed the plaintiffs to revise their motion to provide for notice to the class via United States mail. The Court further directed that the cost of this notice should be borne by Aesthera without reduction to the amount of the settlement fund. On August 22, 2011, the plaintiffs filed a renewed unopposed motion for certification of a settlement class and for preliminary approval of the parties' settlement. This renewed motion provides for notice to the class via United States mail. Pursuant to the Class Action Fairness Act (see 28 U.S.C. Section 1715), on August 30, 2011, Aesthera gave the Attorney General of the United States and each of the state attorneys general notice of the proposed settlement. On September 29, 2011, the Court entered an Order stating that it would grant plaintiffs' renewed motion upon submission of a revised notice to the class providing that the claim form will be a fillable PDF that will enable perspective class members to complete and submit the form electronically. On October 12, 2011, the parties jointly submitted revised long-form and summary versions of the Notice to the Class providing that the Proof of Claim will be a fillable that will enable perspective class members, if they so choose, to complete and submit the form electronically without need to print it. On October 14, 2011, the Court granted Plaintiffs' renewed Motion to Certify Class for Preliminary Approval of Class Settlement. Notice was sent by the claim's administrator to potential members of the class. A fairness hearing was held on March 27, 2012 at which the Court approved the settlement subject to certain conditions, which have since been fulfilled. On May 5, 2012, the Court ordered the Plaintiffs to submit an amended settlement agreement and final approval order. Plaintiffs filed the required papers on June 15, 2012. On August 3, 2012, the Court approved the final settlement, and the claims administrator has paid out the settlement funds. The settlement did not have a material impact to the Company's financial results. Hayward, Pa.-based Solta Medical, Inc., is a leader in the medical aesthetics market providing innovative, safe, and effective solutions for patients that enhance and expand the practice of medical aesthetics for physicians. SOLTA MEDICAL: Consumer Suit vs. Reliant Tech. Still Pending ------------------------------------------------------------ Solta Medical, Inc.'s subsidiary continues to defend itself against a consumer class action lawsuit in California, according to the Company's November 1, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2012. On May 3, 2012, the Company and Reliant Technologies, which the Company acquired in December 2008, were served with a class action complaint filed in the United States District Court for the Northern District of California alleging that Reliant Technologies caused unsolicited fax advertisements to be sent to the plaintiff in 2008, in violation of the Telephone Consumer Protection Act (TCPA). Plaintiff, on behalf of itself and the putative class, seeks the greater of actual damages or statutory damages in the amount of $500 per violation, treble damages for any willful violations, and injunctive relief. The parties have exchanged initial disclosures and discovery has recently commenced. The Company is unable to reasonably estimate a range of loss at this time and intends to vigorously defend this action. Hayward, Pa.-based Solta Medical, Inc., is a leader in the medical aesthetics market providing innovative, safe, and effective solutions for patients that enhance and expand the practice of medical aesthetics for physicians. ST. JUDE: Continues to Defend Silzone-Related Suits in Canada ------------------------------------------------------------- St. Jude Medical, Inc. continues to defend lawsuits in Canada related to Silzone(R), according to the Company's November 7, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 29, 2012. The Company has been sued in various jurisdictions beginning in March 2000 by some patients who received a heart valve product with Silzone(R) coating, which the Company stopped selling in January 2000. The Company has vigorously defended against the claims that have been asserted and will continue to do so with respect to any remaining claims. The Company's outstanding Silzone cases consist of one class action in Ontario, one individual case in Ontario and one proposed class action in British Columbia by the provincial health insurer. In Ontario, a trial on common issues commenced in February 2010 in a class action case involving Silzone patients. In June 2012, the Court ruled in the Company's favor on all nine common class issues and the Court ruled the case should be dismissed. An order dismissing that action has been signed by the trial judge. On September 14, 2012, counsel for the class filed an appeal with the Court of Appeal for the Province of Ontario. No briefing scheduling has yet been set for this appeal. The proposed class action lawsuit by the British Columbia provincial health insurer seeks to recover the cost of insured services furnished or to be furnished to patients who were also class members in a British Columbia class action that was resolved in 2010. Although the British Columbia provincial health insurer's lawsuit remains pending in the British Columbia court, there has not been any activity since 2010. The individual case in Ontario requests damages in excess of $1 million (claiming unspecified special damages, health care costs and interest). Based on the Company's historical experience, the amount ultimately paid, if any, often does not bear any relationship to the amount claimed. The Company has recorded an accrual for probable legal costs, settlements and judgments for Silzone related litigation. The Company is not aware of any unasserted claims related to Silzone- coated products. For all Silzone legal costs incurred, the Company records insurance receivables for the amounts that it expects to recover based on its assessment of the specific insurance policies, the nature of the claim and the Company's experience with similar claims. The Company's current and final insurance layer for Silzone claims consists of $13 million of remaining coverage with two insurance carriers. To the extent that the Company's future Silzone costs (the material components of which are settlements, judgments, legal fees and other related defense costs) exceed its remaining insurance coverage, the Company would be responsible for such costs. The Company has not recognized an expense related to any potential future damages as they are not probable or reasonably estimable at this time. Based in St. Paul, Minnesota, St. Jude Medical Inc. develops, manufactures and distributes cardiovascular medical devices for the global cardiac rhythm management, cardiac surgery, cardiology and atrial fibrillation therapy areas, and implantable neuromodulation devices. ST. JUDE: Discovery Phase in March 2010 Securities Suit Ongoing --------------------------------------------------------------- The discovery phase of the securities class action lawsuit brought in March 2010 is ongoing, according to St. Jude Medical, Inc.'s November 7, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 29, 2012. In March 2010, a securities lawsuit seeking class action status was filed in federal district court in Minnesota against the Company and certain officers on behalf of purchasers of St. Jude Medical common stock between April 22, 2009, and October 6, 2009. The lawsuit relates to the Company's earnings announcements for the first, second and third quarters of 2009, as well as a preliminary earnings release dated October 6, 2009. The complaint, which seeks unspecified damages and other relief as well as attorneys' fees, alleges that the Company failed to disclose that it was experiencing a slowdown in demand for its products and was not receiving anticipated orders for CRM (Cardiac Rhythm Management) devices. Class members allege that the Company's failure to disclose the information resulted in the class purchasing St. Jude Medical stock at an artificially inflated price. In December 2011, the Court issued a decision denying a motion to dismiss filed by the defendants in October 2010. On October 25, 2012, the Court granted plaintiffs' motion to certify the case as a class action, which defendants did not oppose. The discovery phase of the case is ongoing, and the Company intends to continue to vigorously defend against the claims asserted in this lawsuit. Based in St. Paul, Minnesota, St. Jude Medical Inc. develops, manufactures and distributes cardiovascular medical devices for the global cardiac rhythm management, cardiac surgery, cardiology and atrial fibrillation therapy areas, and implantable neuromodulation devices. ST. JUDE: June 2012 Securities Class Suit Dismissed in August ------------------------------------------------------------- The securities class action lawsuit brought in June 2012 was voluntarily dismissed in August 2012, according to St. Jude Medical, Inc.'s November 7, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 29, 2012. On June 14, 2012, a securities class action lawsuit was filed in federal district court in Minnesota against the Company and a company officer for alleged violations of the federal securities laws on behalf of all purchasers of the publicly traded securities of the Company between December 15, 2010, and April 4, 2012, who were damaged thereby. The complaint, which sought unspecified damages and other relief as well as attorneys' fees, alleged that the Company failed to disclose information concerning its Riata, QuickFlex and QuickSite leads. Class members alleged that the Company's failure to disclose this information resulted in the class purchasing St. Jude Medical stock at an artificially inflated price. On August 20, 2012, the plaintiff voluntarily dismissed his complaint against the Company. Based in St. Paul, Minnesota, St. Jude Medical Inc. develops, manufactures and distributes cardiovascular medical devices for the global cardiac rhythm management, cardiac surgery, cardiology and atrial fibrillation therapy areas, and implantable neuromodulation devices. SWIFT TRANSPORTATION: Awaits Class Cert. Bid Ruling in FCRA Suit ---------------------------------------------------------------- Swift Transportation Company is awaiting a court decision on plaintiffs' motion for class certification in the lawsuit alleging violations of the Fair Credit Reporting Act, according to the Company's November 7, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2012. On August 8, 2011, a proposed class action lawsuit was filed by Kelvin D. Daniel, Tanna Hodges, and Robert R. Bell, Jr. on behalf of themselves and all similarly situated persons against Swift Transportation Corporation: Kelvin D. Daniel, Tanna Hodges, and Robert R. Bell, Jr. et al. v. Swift Transportation Corporation, in the United States District Court for the District of Arizona, case number 2:11-CV-01548-ROS, or the Daniel Complaint. Plaintiffs sought employment with Swift Transportation of Arizona, LLC ("Swift Arizona") and that entity has answered the complaint. The putative class includes individuals throughout the United States who sought employment with Swift Arizona and about whom Swift Arizona procured a criminal background report for employment purposes during the application process. The complaint alleges Swift Arizona violated the Fair Credit Reporting Act ("FCRA"). Among the allegations are that Swift Arizona i) did not make adequate disclosures or obtain authorizations for applicants; ii) did not issue pre-adverse action notices for in-person applicants who were not hired in whole or in part because of a background report that contained at least one derogatory item that would disqualify the person under Swift Arizona's hiring policies; and iii) did not issue adverse action notifications to applicants who were not hired in whole or in part because of a background report that contained at least one derogatory item that would disqualify the person from under Swift Arizona's hiring policies. In October 2011, in response to a partial motion to dismiss filed by Swift Arizona, the plaintiffs filed an amended complaint, to which Swift Arizona answered in part, and after the court denied a partial motion to dismiss, Swift Arizona filed an answer addressing the remaining allegations. On October 1, 2012, the plaintiffs filed a motion for class certification. Swift Arizona says it intends to vigorously defend certification of the class as well as the merits of these matters should the class be certified. The final disposition of this case and the impact of such final disposition of this case cannot be determined at this time. SWIFT TRANSPORTATION: Continues to Defend "Garza" Class Suit ------------------------------------------------------------ On January 30, 2004, a class action lawsuit was filed by Leonel Garza on behalf of himself and all similarly situated persons against Swift Transportation Company: Garza vs. Swift Transportation Co., Inc., Case No. CV07-0472. The putative class originally involved certain owner-operators who contracted with the Company under a 2001 Contractor Agreement that was in place for one year. The putative class is alleging that the Company should have reimbursed owner-operators for actual miles driven rather than the contracted and industry standard remuneration based upon dispatched miles. The trial court denied plaintiff's petition for class certification, the plaintiff appealed and on August 6, 2008, the Arizona Court of Appeals issued an unpublished Memorandum Decision reversing the trial court's denial of class certification and remanding the case back to the trial court. On November 14, 2008, the Company filed a petition for review to the Arizona Supreme Court regarding the issue of class certification as a consequence of the denial of the Motion for Reconsideration by the Court of Appeals. On March 17, 2009, the Arizona Supreme Court granted the Company's petition for review, and on July 31, 2009, the Arizona Supreme Court vacated the decision of the Court of Appeals opining that the Court of Appeals lacked automatic appellate jurisdiction to reverse the trial court's original denial of class certification and remanded the matter back to the trial court for further evaluation and determination. Thereafter, the plaintiff renewed the motion for class certification and expanded it to include all persons who were employed by Swift as employee drivers or who contracted with Swift as owner-operators on or after January 30, 1998, in each case who were compensated by reference to miles driven. On November 4, 2010, the Maricopa County trial court entered an order certifying a class of owner-operators and expanding the class to include employees. Upon certification, the Company filed a motion to compel arbitration as well as filing numerous motions in the trial court urging dismissal on several other grounds including, but not limited to the lack of an employee as a class representative, and because the named owner-operator class representative only contracted with the Company for a three month period under a one year contract that no longer exists. In addition to these trial court motions, the Company also filed a petition for special action with the Arizona Court of Appeals arguing that the trial court erred in certifying the class because the trial court relied upon the Court of Appeals ruling that was previously overturned by the Arizona Supreme Court. On April 7, 2011, the Arizona Court of Appeals declined jurisdiction to hear this petition for special action and the Company filed a petition for review to the Arizona Supreme Court. On August 31, 2011, the Arizona Supreme Court declined to review the decision of the Arizona Court of Appeals. During the month of April 2012, the court issued the following rulings with respect to certain motions filed by Swift: (1) denied Swift's motion to compel arbitration; (2) denied Swift's request to decertify the class; (3) granted Swift's motion that there is no breach of contract; and (4) granted Swift's motion to limit class size based on statute of limitations. No further updates were reported in the Company's November 7, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2012. The Company says it intends to continue to pursue all available appellate relief supported by the record, which the Company believes demonstrates that the class is improperly certified and, further, that the claims raised have no merit. The Company retains all of its defenses against liability and damages. The final disposition of this case and the impact of such final disposition cannot be determined at this time. SWIFT TRANSPORTATION: Minimum Wage Suits Pending in Calif. & Ore. ----------------------------------------------------------------- Swift Transportation Company continues to defend class action lawsuits in California and Oregon over unpaid minimum wage, according to the Company's November 7, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2012. On July 12, 2011, a class action lawsuit was filed by Simona Montalvo on behalf of herself and all similarly situated persons against Swift Transportation: Montalvo et al. v. Swift Transportation Corporation d/b/a ST Swift Transportation Corporation in the Superior Court of California, County of San Diego, or the Montalvo Complaint. The Montalvo Complaint was removed to federal court on August 15, 2011, case number 3-11-CV- 01827-L. Upon petition by plaintiffs, the matter was remanded to state court and the Company filed an appeal to this remand. On July 11, 2011, a class action lawsuit was filed by Glen Ridderbush on behalf of himself and all similarly situated persons against Swift Transportation: Ridderbush et al. v. Swift Transportation Co. of Arizona LLC and Swift Transportation Services, LLC in the Circuit Court for the State of Oregon, Multnomah County, or the Ridderbush Complaint. The Ridderbush Complaint was removed to federal court on August 24, 2011, case number 3-11-CV-01028. Both putative classes include employees alleging that candidates for employment within the four year statutory period in California and within the three year statutory period in Oregon, were not paid the state mandated minimum wage during their orientation phase. On July 17, 2012, the parties involved in the Ridderbush Complaint engaged in a voluntary mediation session in an attempt to resolve the matter in order to avoid litigation and mitigate legal expense. Pursuant to subsequent negotiations and pending the execution of a final settlement agreement, the parties have agreed to settle the entire matter in the range of $500,000 to $700,000. The issue of class certification in the Montalvo Complaint must first be resolved before the court will address the merits of the case, and the Company retains all of its defenses against liability and damages pending a determination of class certification. The Company says it intend to vigorously defend against certification of the class as well as the merits of this matter should the class be certified. TRANSUNION HOLDING: Appeals From "White" Suit Deal Remain Pending ----------------------------------------------------------------- In a matter captioned White, et al v. Experian Information Solutions, Inc. (No. 05-cv-01070-DOC/MLG, filed in 2005 in the United States District Court for the Central District of California), plaintiffs sought class action status against Equifax, Experian and TransUnion Holding Company, Inc. in connection with the reporting of delinquent or charged-off consumer debt obligations on a consumer report after the consumer was discharged in a bankruptcy proceeding. The claims allege that each national consumer reporting company did not automatically update a consumer's file after their discharge from bankruptcy and such non-action was a failure to employ reasonable procedures to assure maximum file accuracy, a requirement of the Fair Credit Reporting Act ("FCRA"). Without admitting any wrongdoing, the Company has agreed to a settlement of this matter. On August 19, 2008, the Court approved an agreement whereby the Company and the other industry defendants voluntarily changed certain operational practices. These changes require the Company to update certain delinquent records when it learns, through the collection of public records, that the consumer has received an order of discharge in a bankruptcy proceeding. These business practice changes did not have a material adverse impact on the Company's operations or those of its customers. In 2009, the Company also agreed, with the other two defendants, to settle the monetary claims associated with this matter for $17.0 million each ($51.0 million in total), which amount has been, or will be, paid into a settlement fund that will be used to pay the class counsel's attorney fees, all administration and notice costs of the fund to the purported class, and a variable damage amount to consumers within the class based on the level of harm the consumer is able to confirm. The Company's share of this settlement is fully covered by insurance. Final approval of this monetary settlement by the Court occurred on July 15, 2011. Certain objectors to this monetary settlement have appealed the decision of the Court. The Company expects these appeals to be consolidated and resolved sometime in 2013. If the monetary settlement is not upheld the Company expects to vigorously litigate this matter and to assert what it believes are valid defenses to the claims made by the plaintiffs. Although the Company believes it has valid defenses and have not violated any law, and although it has additional insurance coverage available with respect to this matter, the ultimate outcome of this matter is not certain. However, the Company does not believe any final resolution of this matter will have a material adverse effect on its financial condition. No further updates were reported in the Company's November 7, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2012. TRANSUNION HOLDING: Still Defends Virginia Public Records Suit -------------------------------------------------------------- The purported class action captioned Donna K. Soutter v. Trans Union LLC No. 3:10-cv-00514-HEH, United States District Court for the Eastern District of Virginia, was filed in 2010 and alleges that TransUnion Holding Company, Inc. fails to maintain reasonable procedures to assure maximum possible file accuracy with respect to the collection and reporting of the satisfaction, release, dismissal or appeal of judgments entered in the Virginia state court system. The Company, like its competitors, contract with a third-party vendor to collect public records on a timely basis. The plaintiff alleges that the diligence used to gather and report satisfactions, releases, dismissals or appeals is inadequate and that the established intervals between trips to the various state courthouses to gather this information is too infrequent. No further updates were reported in the Company's November 7, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2012. The Company says it intends to vigorously defend this matter as it believes it has acted in a lawful manner. UNITED SITE: Sued for Failure to Provide Valid Rest Periods ----------------------------------------------------------- Nelson Gonzalez Villa, on behalf of himself and all others similarly situated v. United Site Services of California, Inc., Case No. 1-12-CV-237060 (Calif. Super. Ct., Santa Clara Cty., December 3, 2012) accuses the Defendant of failing to provide and authorize valid rest periods under the California Labor Code and applicable Wage Orders. By this action, Mr. Villa seeks relief in the form of penalties for the Defendant's failure to authorize and provide rest breaks, as well as damages for the delay in payment of premium wages under California law. Mr. Villa and the proposed putative class members are or have been service technicians and pick-up and delivery drivers working for the Defendant. United Site Services is a provider of portable restroom services, as well as temporary power, temporary storage, temporary fence and sweeping, and does business throughout the state of California. The Company is headquartered in Sacramento, California. The Plaintiff is represented by: Fernando F. Chavez, Esq. LAW OFFICES OF FERNANDO F. CHAVEZ 1530 The Alameda, Suite 301 San Jose, CA 95126 Telephone: (408) 971-3903 Facsimile: (408) 971-0117 - and - Robert J. Camp, Esq. THE COCHRAN FIRM l929 3rd Ave. North, Suite 800 Birmingham, AL 35203 Telephone: (205) 244-1115 Facsimile: (205) 244-1171 - and - Mitchell G. Allen, Esq. JACOBY & MEYERS 1929 3rd Avenue North, Suite 600 Birmingham, AL 35203 Telephone: (800) 411-4529 VITACOST.COM INC: Appeal From "Miyahira" Suit Dismissal Pending --------------------------------------------------------------- An appeal from the dismissal of a class action lawsuit captioned Miyahira v. Vitacost.com, Inc., Ira P. Kerker, Richard P. Smith, Stewart Gitler, Allen S. Josephs, David N. Ilfeld, Lawrence A. Pabst, Eran Ezra, and Robert G. Trapp, remains pending, according to Vitacost.com, Inc.'s November 7, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2012. On May 24, 2010, a punitive class action complaint was filed in the United States District Court for the Southern District of Florida against the Company and certain current and former officers and directors by a stockholder on behalf of herself and other stockholders who purchased Vitacost common stock between September 24, 2009, and April 20, 2010, captioned Miyahira v. Vitacost.com, Inc., Ira P. Kerker, Richard P. Smith, Stewart Gitler, Allen S. Josephs, David N. Ilfeld, Lawrence A. Pabst, Eran Ezra, and Robert G. Trapp, Case 9:10-cv-80644-KLR. After being appointed to represent the purported class of shareholders, the lead plaintiffs filed an amended complaint asserting claims under Sections 11, 12(a)(2), and 15 of the Securities Act of 1933 and Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as amended, and Rule 10b-5 promulgated thereunder against Vitacost, its current and former officers and directors, and the underwriters of its initial public offering ("IPO"). On December 12, 2011, the Court granted defendants' motion to dismiss the complaint, and granted plaintiffs leave to amend. On January 11, 2012, lead plaintiff filed its second amended complaint asserting claims under Sections 11, 12(a)(2), and 15 of the Securities Act of 1933 against Vitacost, its current and former officers and directors, and its underwriters. Lead plaintiff purports to bring its action on behalf of investors who purchased stock in connection with or traceable to the Company's IPO between September 24, 2009, and April 20, 2010. The complaint alleges that defendants violated the federal securities laws during the period by, among other things, disseminating false and misleading statements and/or concealing material facts concerning the Company's current and prospective business and financial results. The complaint also alleges that as a result of these actions the Company's stock price was artificially inflated during the class period. The complaint seeks unspecified compensatory damages, costs, and expenses. On June 25, 2012, the Southern District of Florida entered its order granting defendants' motion to dismiss in full and dismissing the second amended complaint with prejudice. On July 23, 2012, lead plaintiff filed notice of appeal to the Eleventh Circuit of the order granting defendants' motion to dismiss. Plaintiff-Appellant filed its opening appellate brief on September 17, 2012, and Defendant-Appellees filed their responding brief on October 29, 2012. The Company records provisions in its consolidated financial statements for pending litigation when it determines that an unfavorable outcome is probable and the amount of loss can be reasonably estimated. As of September 30, 2012, the Company has concluded that it is not probable that a loss has been incurred and is unable to estimate the possible loss or range of loss that could result from an unfavorable verdict. Therefore, the Company has not provided any amounts in the consolidated financial statements for an unfavorable outcome. The Company believes that it has meritorious arguments for affirmation of the Southern District of Florida's order that it will raise in the appeal. It is possible that the Company's consolidated financial statements could be materially adversely affected by an unfavorable outcome. WILIER TRIESTINA: Recalls 200 Izoard XP Bicycles Due to Fall Risk ----------------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with Wilier Triestina USA LLC, of Atlanta, Georgia, announced a voluntary recall of about 200 Izoard XP Bicycles. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. The bicycle fork's steerer tube can break while in use, posing a fall hazard. No incidents or injuries have been reported. This recall involves Wilier Triestina model Izoard XP bicycles or framesets that were sold with carbon/alloy forks with serial numbers between LH0001 and LH4000. The serial number is located on the steerer tube of the fork, around six inches from the crown. Bicycles purchased before January 2012 are not included in this recall. Pictures of the recalled products are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml13/13075.html The recalled products were manufactured in China and sold at bicycle retailers nationwide from January 2012 through October 2012 for about $2,600 for the bicycle. Consumers should stop using the recalled bicycles immediately and have an authorized Wilier bicycle dealer check for the serial number on the fork and, if it is included in the recall, the dealer will install a new Izoard replacement fork at no charge. Wilier USA may be reached toll-free at (888) 849-7779 from 9:00 a.m. to 5:00 p.m. Eastern Time Monday through Friday, or online at http://www.wilier-usa.com/ Asbestos Litigation ASBESTOS UPDATE: Tenneco Inc. Continues to Defend Fibro Suits ------------------------------------------------------------- Tenneco Inc. continues to defend lawsuits alleging exposure to asbestos, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2012. The Company states: "We are subject to lawsuits initiated by a significant number of claimants alleging health problems as a result of exposure to asbestos. In the early 2000's we were named in nearly 20,000 complaints, most of which were filed in Mississippi state court and the vast majority of which made no allegations of exposure to asbestos from our product categories. Most of these claims have been dismissed and our current docket of active and inactive cases is less than 500 cases nationwide. A small number of claims have been asserted by railroad workers alleging exposure to asbestos products in railroad cars manufactured by The Pullman Company, one of our subsidiaries. The substantial majority of the remaining claims are related to alleged exposure to asbestos in our automotive products. Only a small percentage of the claimants allege that they were automobile mechanics and a significant number appear to involve workers in other industries or otherwise do not include sufficient information to determine whether there is any basis for a claim against us. We believe, based on scientific and other evidence, it is unlikely that mechanics were exposed to asbestos by our former products and that, in any event, they would not be at increased risk of asbestos-related disease based on their work with these products. Further, many of these cases involve numerous defendants, with the number in some cases exceeding 100 defendants from a variety of industries. Additionally, the plaintiffs either do not specify any, or specify the jurisdictional minimum, dollar amount for damages. As major asbestos manufacturers and/or users continue to go out of business or file for bankruptcy, we may experience an increased number of these claims. We vigorously defend ourselves against these claims as part of our ordinary course of business. In future periods, we could be subject to charges to earnings if any of these matters are resolved unfavorably to us. To date, with respect to claims that have proceeded sufficiently through the judicial process, we have regularly achieved favorable resolutions. Accordingly, we presently believe that these asbestos-related claims will not have a material adverse impact on our future consolidated financial condition, results of operations or cash flows." Tenneco Inc. is a producer of emission control and ride control products and systems for light, commercial and specialty vehicle applications. The Company serves both original equipment vehicle manufacturers (OEMs) and the repair and replacement markets, or aftermarket, worldwide. ASBESTOS UPDATE: Con Edison & CECONY Each Had $10MM Liability ------------------------------------------------------------- Consolidated Edison, Inc., and Consolidated Edison Company of New York, Inc., each had an accrued liability of $10 million for asbestos lawsuits, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2012. Suits have been brought in New York State and federal courts against the Utilities and many other defendants, wherein a large number of plaintiffs sought large amounts of compensatory and punitive damages for deaths and injuries allegedly caused by exposure to asbestos at various premises of the Utilities. The suits that have been resolved, which are many, have been resolved without any payment by the Utilities, or for amounts that were not, in the aggregate, material to them. The amounts specified in all the remaining thousands of suits total billions of dollars; however, the Utilities believe that these amounts are greatly exaggerated, based on the disposition of previous claims. In 2010, CECONY estimated that its aggregate undiscounted potential liability for these suits and additional suits that may be brought over the next 15 years is $10 million. The estimate was based upon a combination of modeling, historical data analysis and risk factor assessment. Actual experience may be materially different. In addition, certain current and former employees have claimed or are claiming workers' compensation benefits based on alleged disability from exposure to asbestos. Under its current rate agreements, CECONY is permitted to defer as regulatory assets (for subsequent recovery through rates) costs incurred for its asbestos lawsuits and workers' compensation claims. The accrued liability for asbestos suits and workers' compensation proceedings (including those related to asbestos exposure) and the amounts deferred as regulatory assets for the Companies at September 30, 2012 and December 31, 2011 were: Con Edison CECONY (Millions of Dollars) 2012 2011 2012 2011 ------------- ------------- Accrued liability - asbestos suits $10 $10 $10 $10 Regulatory assets - asbestos suits $10 $10 $10 $10 Accrued liability - workers' compensation $94 $98 $89 $93 Regulatory assets - workers' compensation $19 $23 $19 $23 Consolidated Edison, Inc., is a holding company, which owns Consolidated Edison Company of New York, Inc. (CECONY), which delivers electricity, natural gas and steam to customers in New York City and Westchester County; Orange and Rockland Utilities, Inc. (O&R), which delivers electricity and natural gas to customers primarily located in southeastern New York, and northern New Jersey and northeastern Pennsylvania, and competitive energy businesses, which provide retail and wholesale electricity supply and energy services. ASBESTOS UPDATE: CECONY Still Defends Steam Main Rupture Suits -------------------------------------------------------------- In July 2007, a Consolidated Edison Company of New York, Inc., steam main located in midtown Manhattan ruptured. It has been reported that one person died and others were injured as a result of the incident. Several buildings in the area were damaged. Debris from the incident included dirt and mud containing asbestos. The response to the incident required the closing of several buildings and streets for various periods. Approximately 93 suits are pending against the company seeking generally unspecified compensatory and, in some cases, punitive damages, for personal injury, property damage and business interruption. The company has not accrued a liability for the suits. The company has notified its insurers of the incident and believes that the policies in force at the time of the incident will cover most of the company's costs, which the company is unable to estimate, but which could be substantial, to satisfy its liability to others in connection with the incident. No further updates were reported in Consolidated Edison, Inc.'s Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2012. Consolidated Edison, Inc., is a holding company, which owns Consolidated Edison Company of New York, Inc. (CECONY), which delivers electricity, natural gas and steam to customers in New York City and Westchester County; Orange and Rockland Utilities, Inc. (O&R), which delivers electricity and natural gas to customers primarily located in southeastern New York, and northern New Jersey and northeastern Pennsylvania, and competitive energy businesses, which provide retail and wholesale electricity supply and energy services. ASBESTOS UPDATE: Trial Date in Fibro Suit vs. ACE Set for May 20 ---------------------------------------------------------------- In September 2011, an asbestos complaint was filed in the New Jersey Superior Court, Law Division, against Atlantic City Electric Company (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. 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. A trial date has been set for May 20, 2013. No further updates were reported in the Form 10-Q filed by Pepco Holdings, Inc., Potomac Electric Power Company, Delmarva Power & Light Company, and Atlantic City Electric Company with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2012. Pepco Holdings, Inc. (PHI) is a holding company that, through regulated public utility subsidiaries, is engaged in the transmission, distribution and default supply of electricity and the distribution and supply of natural gas: Potomac Electric Power Company (Pepco), Delmarva Power & Light Company (DPL) and Atlantic City Electric Company (ACE). ASBESTOS UPDATE: Noble Corp. Had 29 Pending Suits at Sept. 30 ------------------------------------------------------------- Noble Corporation, at September 30, 2012, was defending 29 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 September 30, 2012. The Company states: "We are from time to time a party to various lawsuits that are incidental to our 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 September 30, 2012, there were 29 asbestos related lawsuits in which we are one of many defendants. These lawsuits have been filed in the United States in the states of Louisiana, Mississippi and Texas. We intend to vigorously defend against the litigation. We do not believe the ultimate resolution of these matters will have a material adverse effect on our financial position, results of operations or cash flows." Noble Corporation is an offshore drilling contractor for the oil and gas industry. The Company performs contract drilling services with its fleet of 79 mobile offshore drilling units and one floating production storage and offloading unit (FPSO) located globally. ASBESTOS UPDATE: Crown Holdings Accrued $235MM for Fibro Claims --------------------------------------------------------------- Crown Holdings, Inc., as of September 30, 2012, had an accrual for pending and future asbestos-related claims and related legal costs totaling $235 million, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2012. Crown Cork & Seal Company, Inc. ("Crown Cork") is one of many defendants in a substantial number of lawsuits filed throughout the United States by persons alleging bodily injury as a result of exposure to asbestos. These claims arose from the insulation operations of a U.S. company, the majority of whose stock Crown Cork purchased in 1963. Approximately ninety days after the stock purchase, this U.S. company sold its insulation assets and was later merged into Crown Cork. Prior to 1998, amounts paid to asbestos claimants were covered by a fund made available to Crown Cork under a 1985 settlement with carriers insuring Crown Cork through 1976, when Crown Cork became self-insured. The fund was depleted in 1998 and the Company has no remaining coverage for asbestos-related costs. In recent years, the states of Alabama, Arizona, Florida, Georgia, Idaho, Indiana, Michigan, Mississippi, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Utah, Wisconsin and Wyoming enacted legislation that limits asbestos-related liabilities under state law of companies such as Crown Cork that allegedly incurred these liabilities because they are successors by corporate merger to companies that had been involved with asbestos. The legislation, which applies to future and, with the exception of Georgia, South Carolina, South Dakota and Wyoming, pending claims, caps asbestos-related liabilities at the fair market value of the predecessor's total gross assets adjusted for inflation. Crown Cork has paid significantly more for asbestos- related claims than the total value of its predecessor's assets adjusted for inflation. Crown Cork has integrated the legislation into its claims defense strategy. The Company cautions, however, that the legislation may be challenged and there can be no assurance regarding the ultimate effect of the legislation on Crown Cork. In June 2003, the State of Texas enacted legislation that limits the asbestos-related liabilities in Texas courts of companies such as Crown Cork that allegedly incurred these liabilities because they are successors by corporate merger to companies that had been involved with asbestos. The Texas legislation, which applies to future claims and pending claims, caps asbestos-related liabilities at the total gross value of the predecessor's assets adjusted for inflation. Crown Cork has paid significantly more for asbestos-related claims than the total adjusted value of its predecessor's assets. On October 22, 2010, the Texas Supreme Court, in a 6-2 decision, reversed a lower court decision, Barbara Robinson v. Crown Cork & Seal Company, Inc., No. 14-04-00658-CV, Fourteenth Court of Appeals, Texas, which had upheld the dismissal of an asbestos- related case against Crown Cork. The Texas Supreme Court held that the Texas legislation was unconstitutional under the Texas Constitution when applied to asbestos-related claims pending against Crown Cork when the legislation was enacted in June of 2003. The Company believes that the decision of the Texas Supreme Court is limited to retroactive application of the Texas legislation to asbestos-related cases that were pending against Crown Cork in Texas on June 11, 2003 and therefore, in its accrual, continues to assign no value to claims filed after June 11, 2003. In December 2001, the Commonwealth of Pennsylvania enacted legislation that limits the asbestos-related liabilities of Pennsylvania corporations that are successors by corporate merger to companies involved with asbestos. The legislation limits the successor's liability for asbestos to the acquired company's asset value adjusted for inflation. Crown Cork has paid significantly more for asbestos-related claims than the acquired company's adjusted asset value. In November 2004, the legislation was amended to address a Pennsylvania Supreme Court decision (Ieropoli v. AC&S Corporation, et. al., No. 117 EM 2002) which held that the statute violated the Pennsylvania Constitution due to retroactive application. The Company cautions that the limitations of the statute, as amended, are subject to litigation and may not be upheld. Adverse rulings in cases challenging the constitutionality of the Pennsylvania statute could have a material impact on the Company. During the nine months ended September 30, 2012, the Company paid $14 million to settle outstanding claims and had claims activity as follows: Beginning claims 50,000 New claims 2,500 Settlements or dismissals (1,500) Ending claims 51,000 In the fourth quarter of each year, the Company performs an analysis of outstanding claims and categorizes by year of exposure and state filed. As of December 31, 2011, the Company's outstanding claims were: Claimants alleging first exposure after 1964 15,000 Claimants alleging first exposure before or during 1964 filed in: Texas 12,000 Pennsylvania 2,000 Other states that have enacted asbestos legislation 6,000 Other states 15,000 Total claims outstanding 50,000 The outstanding claims in each period exclude 3,100 pending claims involving plaintiffs who allege that they are, or were, maritime workers subject to exposure to asbestos, but whose claims the Company believes will not have a material effect on the Company's consolidated results of operations, financial position or cash flow. The outstanding claims also exclude approximately 19,000 inactive claims. Due to the passage of time, the Company considers it unlikely that the plaintiffs in these cases will pursue further action against the Company. The exclusion of these inactive claims had no effect on the calculation of the Company's accrual as the claims were filed in states, where the Company's liability is limited by statute. Historically (1977-2011), Crown Cork estimates that approximately one-quarter of all asbestos-related claims made against it have been asserted by claimants who claim first exposure to asbestos after 1964. With respect to claimants alleging first exposure to asbestos before or during 1964, the Company does not include in its accrual any amounts for settlements in states where the Company's liability is limited by statute except for certain pending claims in Texas. With respect to post-1964 claims, regardless of the existence of asbestos legislation, the Company does not include in its accrual any amounts for settlement of these claims because of increased difficulty of establishing identification of relevant insulation products as the cause of injury. Given our settlement experience with post-1964 claims, we do not believe that an adverse ruling in the Texas or Pennsylvania asbestos litigation cases, or in any other state that has enacted asbestos legislation, would have a material impact on the Company with respect to such claims. Crown Cork has entered into arrangements with plaintiffs' counsel in certain jurisdictions with respect to claims which are not yet filed, or asserted, against it. However, Crown Cork expects claims under these arrangements to be filed or asserted against Crown Cork in the future. The projected value of these claims is included in the Company's estimated liability as of September 30, 2012. As of September 30, 2012, the Company's accrual for pending and future asbestos-related claims and related legal costs was $235 million, including $179 million for unasserted claims. The Company's accrual includes estimated probable costs for claims through the year 2021. The Company's accrual excludes potential costs for claims beyond 2021 because the Company believes that the key assumptions underlying its accrual are subject to greater uncertainty as the projection period lengthens. It is reasonably possible that the actual loss could be in excess of the Company's accrual. However, the Company is unable to estimate the reasonably possible loss in excess of its accrual due to uncertainty in the following assumptions that underlie the Company's accrual and the possibility of losses in excess of such accrual: the amount of damages sought by the claimant (which was not specified for approximately 88% of the claims outstanding at the end of 2011), the Company and claimant's willingness to negotiate a settlement, the terms of settlements of other defendants with asbestos-related liabilities, the bankruptcy filings of other defendants (which may result in additional claims and higher settlements for non-bankrupt defendants), the nature of pending and future claims (including the seriousness of alleged disease, whether claimants allege first exposure to asbestos before or during 1964 and the claimant's ability to demonstrate the alleged link to Crown Cork), the volatility of the litigation environment, the defense strategies available to the Company, the level of future claims, the rate of receipt of claims, the jurisdiction in which claims are filed, and the effect of state asbestos legislation (including the validity and applicability of the Pennsylvania legislation to non-Pennsylvania jurisdictions, where the substantial majority of the Company's asbestos cases are filed). Crown Holdings, Inc. is engaged in the design, manufacture and sale of packaging products for consumer goods. Its primary products include steel and aluminum cans for food, beverage, household and other consumer products and metal vacuum closures and caps. ASBESTOS UPDATE: U.S. Auto Parts Unit Still Defending Fibro Suits ----------------------------------------------------------------- A wholly-owned subsidiary of U.S. Auto Parts Network, Inc., Automotive Specialty Accessories and Parts, Inc. and its wholly- owned subsidiary Whitney Automotive Group, Inc. (referred to as "WAG"), are named defendants in several lawsuits involving claims for damages caused by installation of brakes during the late 1960's and early 1970's that contained asbestos. WAG marketed certain brakes, but did not manufacture any brakes. WAG maintains liability insurance coverage to protect its and the Company's assets from losses arising from the litigation and coverage is provided on an occurrence rather than a claims made basis, and the Company is not expected to incur significant out-of-pocket costs in connection with this matter that would be material to its consolidated financial statements. 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 September 29, 2012. U.S. Auto Parts Network, Inc., offers online sources for automotive aftermarket parts and repairs information. The Company principally sells its products, identified as stock keeping units (SKUs), to individual consumers through its network of Websites and online marketplaces. ASBESTOS UPDATE: TMS International Continues to Defend Claims ------------------------------------------------------------- TMS International Corp. continues to defend itself from asbestos- related claims regarding the spun-off subsidiaries, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2012. The Company states: "Two non-operating subsidiaries of a predecessor company, along with a landfill and waste management business, were spun-off to our former stockholders in October 2002. The two former subsidiaries were subject to asbestos-related personal injury claims. We believe that the Company has no obligation for asbestos-related claims regarding the spun-off subsidiaries. In addition, the Company has been named as a defendant in certain asbestos-related claims relating to lines of business that were discontinued over 20 years ago. We believe that the Company is sufficiently protected by insurance with respect to these asbestos-related claims related to these former lines of business, and we do not believe that the ultimate outcome will have a material adverse effect on the Company's financial position, results of operations or cash flows." TMS International Corp. (TMS), formerly Metal Services Acquisition Corp., is a provider of outsourced industrial services to steel mills in North America. These services include scrap management and preparation; semi-finished and finished material handling; metal recovery and slag handling; processing and sales; surface conditioning; raw materials procurement and logistics; and software-based raw materials cost optimization. ASBESTOS UPDATE: Valhi & NL Unit Still Defending Fibro Claims ------------------------------------------------------------- Valhi, Inc., and its subsidiary NL Industries, Inc., continue to defend 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 September 30, 2012. The Company states: "We are involved in certain legal proceedings with a number of our former insurance carriers regarding the nature and extent of the carriers' obligations to us under insurance policies with respect to certain lead pigment and asbestos lawsuits. The issue of whether insurance coverage for defense costs or indemnity or both will be found to exist for our lead pigment and asbestos litigation depends upon a variety of factors and we cannot assure you that such insurance coverage will be available. "We have agreements with three former insurance carriers pursuant to which the carriers reimburse us for a portion of our future lead pigment litigation defense costs, and one such carrier reimburses us for a portion of our future asbestos litigation defense costs. We are not able to determine how much we will ultimately recover from these carriers for defense costs incurred by us because of certain issues that arise regarding which defense costs qualify for reimbursement. While we continue to seek additional insurance recoveries, we do not know if we will be successful in obtaining reimbursement for either defense costs or indemnity. Accordingly, we recognize insurance recoveries in income only when receipt of the recovery is probable and we are able to reasonably estimate the amount of the recovery." "NL has been named as a defendant in various lawsuits in several jurisdictions, alleging personal injuries as a result of occupational exposure primarily to products manufactured by our former operations containing asbestos, silica and/or mixed dust. In addition, some plaintiffs allege exposure to asbestos from working in various facilities previously owned and/or operated by NL. There are 1,125 of these types of cases pending, involving a total of approximately 1,995 plaintiffs. In addition, the claims of approximately 8,075 plaintiffs have been administratively dismissed or placed on the inactive docket in Ohio, Indiana and Texas state courts. We do not expect these claims will be re-opened unless the plaintiffs meet the courts' medical criteria for asbestos-related claims. We have not accrued any amounts for this litigation because of the uncertainty of liability and inability to reasonably estimate the liability, if any. To date, we have not been adjudicated liable in any of these matters. "We have sought and will continue to vigorously seek, dismissal and/or a finding of no liability from each claim. In addition, from time to time, we have received notices regarding asbestos or silica claims purporting to be brought against former subsidiaries, including notices provided to insurers with which we have entered into settlements extinguishing certain insurance policies. These insurers may seek indemnification from us." Valhi, Inc. is a holding company. It operates in three segments: Chemicals, Component Products and Waste Management. The Company operates through its wholly owned and majority owned subsidiaries, including NL Industries, Inc., Kronos Worldwide, Inc., CompX International Inc. and Waste Control Specialists LLC (WCS). ASBESTOS UPDATE: Alleghany Corp. Had Net Reserves of $393.7MM ------------------------------------------------------------- Alleghany Corporation's loss and loss adjustment expense (LAE) include amounts for risks relating to asbestos-related illnesses and environmental impairment. As of September 30, 2012, such gross and net reserves were $511.2 million and $393.7 million, respectively, of which $497.7 million and $380.2 million, respectively, related to Transatlantic and $13.5 million and $13.5 million, respectively, related to CATA. The reserves carried for such claims, including the IBNR portion, are based upon known facts and current law at the respective balance sheet dates. However, significant uncertainty exists in determining the amount of ultimate liability for asbestos-related and environmental impairment losses, particularly for those occurring in 1985 and prior, which represents the majority of Transatlantic's asbestos- related illness and environmental impairment reserves. This uncertainty is due to inconsistent court resolutions and judicial interpretations with respect to underlying policy intent and coverage and uncertainties as to the allocation of responsibility for resultant damages, among other reasons. Further, possible changes in statutes, laws, regulations, theories of liability and other factors could have a material effect on these liabilities and, accordingly, future earnings. No further updates were reported in Alleghany Corporation's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2012. Alleghany Corporation is engaged, through Alleghany Insurance Holdings LLC (AIHL) and its subsidiaries RSUI Group, Inc. (RSUI), Capitol Transamerica Corporation (CATA) and Pacific Compensation Corporation (PCC), in the property and casualty and surety insurance business. On March 6, 2012, it merged with Transatlantic Holdings, Inc. (Transatlantic). ASBESTOS UPDATE: MetLife Unit Continues to Defend Exposure Suits ---------------------------------------------------------------- MetLife, Inc.'s subsidiary continues to defend asbestos-related lawsuits alleging personal injury resulting from exposure to asbestos, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2012. Metropolitan Life Insurance Company (MLIC) is and has been a defendant in a large number of asbestos-related suits filed primarily in state courts. These suits principally allege that the plaintiff or plaintiffs suffered personal injury resulting from exposure to asbestos and seek both actual and punitive damages. MLIC has never engaged in the business of manufacturing, producing, distributing or selling asbestos or asbestos-containing products nor has MLIC issued liability or workers' compensation insurance to companies in the business of manufacturing, producing, distributing or selling asbestos or asbestos-containing products. The lawsuits principally have focused on allegations with respect to certain research, publication and other activities of one or more of MLIC's employees during the period from the 1920's through approximately the 1950's and allege that MLIC learned or should have learned of certain health risks posed by asbestos and, among other things, improperly publicized or failed to disclose those health risks. MLIC believes that it should not have legal liability in these cases. The outcome of most asbestos litigation matters, however, is uncertain and can be impacted by numerous variables, including differences in legal rulings in various jurisdictions, the nature of the alleged injury and factors unrelated to the ultimate legal merit of the claims asserted against MLIC. MLIC employs a number of resolution strategies to manage its asbestos loss exposure, including seeking resolution of pending litigation by judicial rulings and settling individual or groups of claims or lawsuits under appropriate circumstances. Claims asserted against MLIC have included negligence, intentional tort and conspiracy concerning the health risks associated with asbestos. MLIC's defenses (beyond denial of certain factual allegations) include that: (i) MLIC owed no duty to the plaintiffs -- it had no special relationship with the plaintiffs and did not manufacture, produce, distribute or sell the asbestos products that allegedly injured plaintiffs; (ii) plaintiffs did not rely on any actions of MLIC; (iii) MLIC's conduct was not the cause of the plaintiffs' injuries; (iv) plaintiffs' exposure occurred after the dangers of asbestos were known; and (v) the applicable time with respect to filing suit has expired. During the course of the litigation, certain trial courts have granted motions dismissing claims against MLIC, while other trial courts have denied MLIC's motions to dismiss. There can be no assurance that MLIC will receive favorable decisions on motions in the future. While most cases brought to date have settled, MLIC intends to continue to defend aggressively against claims based on asbestos exposure, including defending claims at trials. As reported in the 2011 Annual Report, MLIC received approximately 4,972 asbestos-related claims in 2011. During the nine months ended September 30, 2012 and 2011, MLIC received approximately 3,909 and 3,750 new asbestos-related claims, respectively. The number of asbestos cases that may be brought, the aggregate amount of any liability that MLIC may incur, and the total amount paid in settlements in any given year are uncertain and may vary significantly from year to year. The ability of MLIC to estimate its ultimate asbestos exposure is subject to considerable uncertainty, and the conditions impacting its liability can be dynamic and subject to change. The availability of reliable data is limited and it is difficult to predict the numerous variables that can affect liability estimates, including the number of future claims, the cost to resolve claims, the disease mix and severity of disease in pending and future claims, the impact of the number of new claims filed in a particular jurisdiction and variations in the law in the jurisdictions in which claims are filed, the possible impact of tort reform efforts, the willingness of courts to allow plaintiffs to pursue claims against MLIC when exposure to asbestos took place after the dangers of asbestos exposure were well known, and the impact of any possible future adverse verdicts and their amounts. The ability to make estimates regarding ultimate asbestos exposure declines significantly as the estimates relate to years further in the future. In the Company's judgment, there is a future point after which losses cease to be probable and reasonably estimable. It is reasonably possible that the Company's total exposure to asbestos claims may be materially greater than the asbestos liability currently accrued and that future charges to income may be necessary. To the extent the Company can estimate reasonably possible losses in excess of amounts accrued, it has been included in the aggregate estimate of reasonably possible loss. While the potential future charges could be material in the particular quarterly or annual periods in which they are recorded, based on information currently known by management, management does not believe any such charges are likely to have a material effect on the Company's financial position. The Company believes adequate provision has been made in its consolidated financial statements for all probable and reasonably estimable losses for asbestos-related claims. MLIC's recorded asbestos liability is based on its estimation of the following elements, as informed by the facts presently known to it, its understanding of current law and its past experiences: (i) the probable and reasonably estimable liability for asbestos claims already asserted against MLIC, including claims settled but not yet paid; (ii) the probable and reasonably estimable liability for asbestos claims not yet asserted against MLIC, but which MLIC believes are reasonably probable of assertion; and (iii) the legal defense costs associated with the foregoing claims. Significant assumptions underlying MLIC's analysis of the adequacy of its recorded liability with respect to asbestos litigation include: (i) the number of future claims; (ii) the cost to resolve claims; and (iii) the cost to defend claims. MLIC reevaluates on a quarterly and annual basis its exposure from asbestos litigation, including studying its claims experience, reviewing external literature regarding asbestos claims experience in the U.S., assessing relevant trends impacting asbestos liability and considering numerous variables that can affect its asbestos liability exposure on an overall or per claim basis. These variables include bankruptcies of other companies involved in asbestos litigation, legislative and judicial developments, the number of pending claims involving serious disease, the number of new claims filed against it and other defendants and the jurisdictions in which claims are pending. Based upon its regular reevaluation of its exposure from asbestos litigation, MLIC has updated its liability analysis for asbestos-related claims through September 30, 2012. MetLife, Inc. (MetLife), is a provider of insurance, annuities and employee benefit programs, serving 90 million customers in over 50 countries. Through its subsidiaries and affiliates, MetLife operates in the United States, Japan, Latin America, Asia Pacific, Europe and the Middle East. ASBESTOS UPDATE: Exelon & Units Continue to Defend PI Claims ------------------------------------------------------------ Exelon Corporation, Exelon Generation Company, LLC, and Baltimore Gas And Electric Company continue to defend various asbestos personal injury claims, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2012. Generation maintains a reserve for claims associated with asbestos-related personal injury actions in certain facilities that are currently owned by Generation or were previously owned by Commonwealth Edison Company (ComEd) and Peco Energy Company (PECO). The reserve is recorded on an undiscounted basis and excludes the estimated legal costs associated with handling these matters, which could be material. At September 30, 2012 and December 31, 2011, Generation had reserved approximately $64 million and $49 million, respectively, in total for asbestos-related bodily injury claims. As of September 30, 2012, approximately $14 million of this amount related to 170 open claims presented to Generation, while the remaining $50 million of the reserve is for estimated future asbestos-related bodily injury claims anticipated to arise through 2050, based on actuarial assumptions and analyses, which are updated on an annual basis. On a quarterly basis, Generation monitors actual experience against the number of forecasted claims to be received and expected claim payments and evaluates whether an adjustment to the reserve is necessary. During the second quarter of 2012, Generation increased its reserve by approximately $19 million, primarily due to increased actual and projected number and severity of claims. Since 1993, BGE and certain Constellation (now Generation) subsidiaries have been involved in several actions concerning asbestos. The actions are based upon the theory of "premises liability," alleging that BGE and Generation knew of and exposed individuals to an asbestos hazard. In addition to BGE and Generation, numerous other parties are defendants in these cases. Approximately 480 individuals who were never employees of BGE or Generation have pending claims each seeking several million dollars in compensatory and punitive damages. Cross-claims and third-party claims brought by other defendants may also be filed against BGE and Generation in these actions. To date, most asbestos claims which have been resolved have been dismissed or resolved without any payment by BGE or Generation and a small minority of these cases has been resolved for amounts that were not material to BGE or Generation's financial results. Discovery begins in these cases once they are placed on the trial docket. At present, none of the pending cases are set for trial. Given the limited discovery, BGE and Generation do not know the specific facts that are necessary to provide an estimate of the possible loss relating to these claims; as such, no accrual has been made. The specific facts not known include: * the identity of the facilities at which the plaintiffs allegedly worked as contractors; * the names of the plaintiffs' employers; * the dates on which and the places where the exposure allegedly occurred; and * the facts and circumstances relating to the alleged exposure. Insurance and hold harmless agreements from contractors who employed the plaintiffs may cover a portion of any awards in the actions. Exelon Corporation is an energy provider. The Company is engaged, through its principal subsidiaries, Exelon Generation Company, LLC (Generation), in the energy generation business, and Commonwealth Edison Company (ComEd) and PECO Energy Company (PECO), in the energy delivery businesses. ASBESTOS UPDATE: CenterPoint Energy Continues to Defend PI Suits ---------------------------------------------------------------- CenterPoint Energy, Inc., continues to defend 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 September 30, 2012. 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, based on its experience to date, does not expect 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 Resources Corp. (CERC Corp. and, together with its subsidiaries, CERC), which owns and operates natural gas distribution systems in six states. ASBESTOS UPDATE: Great Lakes Dredge Still Defending 37 PI Suits --------------------------------------------------------------- Great Lakes Dredge & Dock Corporation continues to defend 37 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 September 30, 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 (Great Lakes) is a provider of dredging services in the United States. Great Lakes provides dredging services in the East, West, and Gulf Coasts of the United States and worldwide. ASBESTOS UPDATE: IPALCO Unit Still Defending 25 Exposure Suits -------------------------------------------------------------- IPALCO Enterprises, Inc., and its subsidiary continues to defend 25 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 September 30, 2012. IPL is a defendant in approximately twenty-five pending lawsuits alleging personal injury or wrongful death stemming from exposure to asbestos and asbestos containing products formerly located in IPL power plants. 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, several cases have been dismissed by the plaintiffs in the past few years 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., through its regulated utility unit, Indianapolis Power & Light (IPL), generates, transmits, and distributes electricity to about 470,000 customers in central Indiana. IPL has almost 3,500 MW of generating capacity; most of its power is generated from coal-burning plants. ASBESTOS UPDATE: CBS Corp. Had 46,060 Pending Claims at Sept. 30 ---------------------------------------------------------------- CBS Corporation, as of September 30, 2012, had approximately 46,060 pending asbestos claims, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2012. The Company is a defendant in lawsuits claiming various personal injuries related to asbestos and other materials, which allegedly occurred principally as a result of exposure caused by various products manufactured by Westinghouse, a predecessor, generally prior to the early 1970s. Westinghouse was neither a producer nor a manufacturer of asbestos. The Company is typically named as one of a large number of defendants in both state and federal cases. In the majority of asbestos lawsuits, the plaintiffs have not identified which of the Company's products is the basis of a claim. Claims against the Company in which a product has been identified principally relate to exposures allegedly caused by asbestos-containing insulating material in turbines sold for power-generation, industrial and marine use, or by asbestos- containing grades of decorative micarta, a laminate used in commercial ships. Claims are frequently filed and/or settled in groups, which may make the amount and timing of settlements, and the number of pending claims, subject to significant fluctuation from period to period. The Company does not report as pending those claims on inactive, stayed, deferred or similar dockets which some jurisdictions have established for claimants who allege minimal or no impairment. As of September 30, 2012, the Company had pending approximately 46,060 asbestos claims, as compared with approximately 50,090 as of December 31, 2011 and 50,120 as of September 30, 2011. During the third quarter of 2012, the Company received approximately 1,100 new claims and closed or moved to an inactive docket approximately 1,060 claims. The Company reports claims as closed when it becomes aware that a dismissal order has been entered by a court or when the Company has reached agreement with the claimants on the material terms of a settlement. Settlement costs depend on the seriousness of the injuries that form the basis of the claim, the quality of evidence supporting the claims and other factors. The Company's total costs for the years 2011 and 2010 for settlement and defense of asbestos claims after insurance recoveries and net of tax benefits were approximately $33 million and $14 million, respectively. The Company's costs for settlement and defense of asbestos claims may vary year to year as insurance proceeds are not always recovered in the same period as the insured portion of the expenses. The Company believes that its reserves and insurance are adequate to cover its asbestos liabilities. This belief is based upon many factors and assumptions, including the number of outstanding claims, estimated average cost per claim, the breakdown of claims by disease type, historic claim filings, costs per claim of resolution and the filing of new claims. While the number of asbestos claims filed against the Company has trended down in recent years, it is difficult to predict future asbestos liabilities, as events and circumstances may occur including, among others, the number and types of claims and average cost to resolve such claims, which could affect the Company's estimate of its asbestos liabilities. ASBESTOS UPDATE: Wash. Ct. Junks CBS, et al. Summary Judgment Bids ------------------------------------------------------------------ Judge Ronald B. Leighton of the United States District Court for the Western District of Washington, Tacoma, denied the motions for summary judgment filed by Defendants CBS Corporation, Warren Pumps, LLC, and Cleaver-Brooks, Inc., asserting that the evidence presented by Plaintiff Roland Stevens does not raise a genuine issue of material fact. Mr. Stevens, a boilermaker in the U.S. Navy from 1954 until 1974 and at the Puget Sound Naval Shipyard until 1988, was diagnosed with mesothelioma in November 2011. He alleges that, throughout his career, he contacted asbestos-containing materials in the Defendants' equipment: Westinghouse marine turbines and forced draft blowers; various Warren pumps; and Cleaver-Brooks boilers. In deciding against the Defendants' summary judgment motions, Judge Leighton ruled that genuine issues of material fact remain regarding (1) Mr. Stevens' contact with Defendants' asbestos- containing products, (2) whether the exposure was a substantial factor for his injury, (3) whether the Navy issued specific instructions about providing warnings, and (4) Mr. Stevens' knowledge of the risks. The case is ROLAND L. STEVENS and SHIRLEY J. STEVENS, husband and wife, Plaintiffs, v. CBS CORPORATION, et al., Defendants, Case No. 3:11-cv-06073 (W.D. Wash.). A copy of Judge Leighton's Decision dated Nov. 19, 2012, is available at http://is.gd/gz513lfrom Leagle.com. ASBESTOS UPDATE: Joinder Motions in Ferguson v. AC and S Suit Ok'd ------------------------------------------------------------------ Judge David R. Strawbridge of the United States District Court for the Eastern District of Pennsylvania granted all motions for joinder in the case In Re ASBESTOS PRODUCTS LIABILITY LITIGATION (No. VI), in relation to: FERGUSON v. A.C. AND S., INC. et al., Civil Action No. MDL 875, E.D. Pa. No. 08-90234. A copy of Judge Strawbridge's Decision dated Nov. 16, 2012, is available at http://is.gd/GrzKeafrom Leagle.com. ASBESTOS UPDATE: Pa. Dist. Ct. Adopts Magistrate Judge's Reports ---------------------------------------------------------------- Judge Eduardo C. Robreno of United States District Court for the Eastern District of Pennsylvania ordered in a Nov. 20, 2012, decision, that all objections to the reports and recommendations by Magistrate Judge Angell regarding the Motions to Exclude Expert Testimony are overruled and that the reports and recommendations are approved and adopted. The case is IN RE: ASBESTOS PRODUCTS LIABILITY LITIGATION (No. VI): VARIOUS, Plaintiffs, v. VARIOUS, Defendants, No. 2-09-cv-75120-ER, MDL Docket No. 875 (E.D. Pa.). A full-text copy of Judge Robreno's Decision is available at http://is.gd/2Ec5kUfrom Leagle.com. ASBESTOS UPDATE: NY Ct. Junks Metro-North, et al.'s Dismissal Bids ------------------------------------------------------------------ Metro-North Commuter Railroad, the Metropolitan Transportation Authority, Consolidated Rail Corporation, and American Premier Underwriters, Inc., moved jointly for summary judgment dismissing the complaint and all cross-claims asserted against them filed by Thomas Neuer. The complaint alleges Mr. Neuer was exposed to asbestos from working with steam lines and electrical equipment throughout his railroad career, which spanned from 1972 to 1989. The Defendants alleged that Mr. Neuer has failed to show that they are responsible for his asbestos-related injuries under the Federal Employers' Liability Act 45 U.S.C. Sec. 511 et seq. for negligently creating an unsafe workplace. In a decision dated Nov. 9, 2012, Judge Sherry Klein Heitler of the Supreme Court, New York County, denied the Defendants' summary judgment motion finding that the record is sufficient to raise an issue of fact whether Mr. Neuer's asbestos exposure as a railroad employee caused his injuries. Judge Heitler noted that, for one, the "link between asbestos and disease is well documented," citing Wiegman v AC&S, Inc., 24 A.D.3d 375 (1st Dept 2005). Judge Heitler added that expert testimony has established that dust in the air from asbestos products can cause mesothelioma. Judge Heitler held that the Defendants' concerns regarding plaintiff's experts' methodologies and findings should be raised before at trial. The case is THOMAS NEUER, Plaintiff, v. AMERICAN ART CLAY COMPANY, INC., et al. Defendants, Docket No. 190335/11, Motion Seq. Nos. 001, 002 (N.Y.). A copy of Judge Heitler's Decision is available at http://is.gd/v9vU6Gfrom Leagle.com. ASBESTOS UPDATE: S.C. Ct. Recommends Dismissal of Suit v. Wachovia ------------------------------------------------------------------ Magistrate Judge Paige J. Gossett of the United States District Court for the District of South Carolina recommended the summary dismissal of the asbestos-related personal injury action filed by Stephanie E. Peay against Wachovia Bank, N.A., holding that an employee's claims against an employer for personal injury due to negligence are barred by the exclusive remedy provided under the South Carolina Workers' Compensation Act. In the action, Ms. Peay alleges that she experienced health issues as a result of asbestos, mold and paint fumes at the facility where she worked for three years. The case is Stephanie E. Peay, Plaintiff, v. Wachovia Bank, N.A., a/k/a Wells Fargo Bank, N.A., Defendant, C/A No. 3:12-2009-CMC-PJG (D. S.C.). A copy of Magistrate Judge Gossett's Decision, dated Nov. 20, 2012, is available at http://is.gd/9WhYFufrom Leagle.com. ASBESTOS UPDATE: Dismissal of 4 Claims v. Wallace & Gale Affirmed ----------------------------------------------------------------- The Court of Special Appeals of Maryland, in a Nov. 25, 2012 opinion affirmed the Circuit Court for Baltimore City's decision in the case captioned CHARLES T. BRANNAN, JR., et al., v. WALLACE & GALE ASBESTOS SETTLEMENT TRUST, No. 2287, September Term 2012 (Md.). The Circuit Court entered summary judgment in favor of the Wallace & Gale Asbestos Settlement Trust, which is the successor to Wallace & Gale, a Baltimore-based insulation contractor that installed asbestos-containing products at various locations in the Baltimore region, including at Bethlehem Steel facilities. Appellants in this case are personal representatives of the estates of four decedents, each of whom pursued to final judgment claims against various parties in asbestos litigation. The Appellants were seeking to hold the Appellee liable for paying a portion of judgments previously entered in favor of appellants in earlier asbestos litigation. In 1984, W & G filed for Chapter 11 bankruptcy protection, and as a consequence, was not a party to the four asbestos cases at the time when the appellants obtained judgments against other parties. The Court of Special Appeals noted that the Appellants negotiated with the tortfeasors who were then parties to the litigation amounts which the Appellants accepted as payment in full of the liability for their claims based on asbestos exposure. Because of such settlements and payments, had it not been for the unexpected emergence of the Trust from the W&G bankruptcy, all four Appellants' claims would now be deemed fully and finally resolved by the final judgments entered in the four cases, the Court of Special Appeals held. The emergence of the Trust from bankruptcy does not take the cases outside the rule applicable generally to cases in which a judgment has been paid in full, the Court of Special Appeals further ruled citing Underwood-Gary, supra, 366 Md. at 670. The Court of Special Appeals then concluded that under those circumstances, the Circuit Court correctly ruled that the final judgment rule precludes further litigation seeking further compensation for the same injuries from further defendants. A copy of the Court of Special Appeals' Decision is available at http://is.gd/CtxQhPfrom Leagle.com. ASBESTOS UPDATE: CSX v. Lawyers Suit to Proceed to Jury Trial ------------------------------------------------------------- Judge Frederick P. Stamp, Jr., of the United States District Court for the Northern District of West Virginia denied the motions for summary judgment filed separately by plaintiff CSX Transportation, Inc., and the lawyer defendants in the case captioned CSX TRANSPORTATION, INC., Plaintiff, v. ROBERT V. GILKISON, PEIRCE, RAIMOND & COULTER, P.C., a Pennsylvania professional corporation a/k/a ROBERT PEIRCE & ASSOCIATES, P.C., a Pennsylvania professional corporation, ROBERT PEIRCE, JR., LOUIS A. RAIMOND, MARK T. COULTER and RAY HARRON, M.D., Defendants, Civil Action No. 5:05CV202 (STAMP)(N.D. W.Va.). Judge Stamp held that there are genuine issues of material fact as to whether CSX made false assertions in its third amended complaint and regarding CSX's fraudulent intent, which issues must be tried before a jury. The third amended complaint alleges that the defendants have orchestrated a scheme to inundate CSX with thousands of asbestos cases without regard to their merit. With respect to the lawyer defendants' motion, Judge Stamp found that there is sufficient evidence alleged in the record by CSX to support the sham exception. Copies of Judge Stamp's Decision dated Nov. 26, 2012, are available at http://is.gd/6cPyPCand http://is.gd/mPiAoefrom Leagle.com. ASBESTOS UPDATE: NY Ct. Directs Insurers to Pay Union Carbide ------------------------------------------------------------- In the case captioned UNION CARBIDE CORPORATION, Plaintiff- Respondent, v. AFFILIATED FM INSURANCE COMPANY, ET AL., Defendants, COLUMBIA CASUALTY COMPANY, ET AL., Defendants- Appellants, 8718, 600804/04, 8719 (N.Y.), the Appellate Division of the Supreme Court of New York, First Department, ruled in a decision dated Dec. 6, 2012, that the Plaintiff met its burden of establishing that the damages at issue were the result of an "occurrence" and thus that the Defendant's policy provided coverage. Indeed, the Court held that the record supports the Plaintiff's contention that, although it was aware of some risk involved in the utilization of asbestos, it believed that its asbestos products could be used safely under the right conditions. The Plaintiff also offered, as further proof of any lack of intent, evidence that it published regulatory information in trade periodicals and provided information regarding the dangers of asbestos, as well as guidance concerning its proper usage, to its clients and potential customers. In addition, the Plaintiff presented evidence that, during the relevant time period, the federal government shared its belief that asbestos could be used safely and, to that end, promulgated regulations designed to control, monitor and record asbestos usage -- but, importantly, did not ban it. Since the Plaintiff established coverage, the burden shifted to the Defendants to show that, pursuant to the policy's exclusion, plaintiff intended the damages. The Court found that the Defendants have failed in this regard. The Defendants asserted that the Plaintiff intended the damages because it knew that asbestos would cause injuries and that claims would be filed against it. The record, however, shows that the Plaintiff was merely aware that asbestos could cause injuries and that claims could be filed. The Plaintiff's "calculated risk" in manufacturing and selling its products despite its awareness of possible injuries and claims does not amount to an expectation of damage, the Court held. The Court also ruled that the Defendants' collateral estoppel argument based on a California jury verdict fails. The nature of the jury instructions in the California case renders it impossible to discern exactly which facts, or acts of plaintiff, played a part in the jury's decision, or upon exactly which portion of the jury instruction the jury based its punitive damages award. As such, the Defendants cannot show an "an identity of issue which has necessarily been decided in the prior action and is decisive of the present action," the Court concluded. A copy of the Court's Decision is available at http://is.gd/fN0uRu from Leagle.com. Columbia Casualty Company and Continental Casualty Company are represented by: Catherine B. Altier, Esq. FORD MARRIN ESPOSITO WITMEYER & GLESER, LLP Wall Street Plaza 23rd Floor New York, NY 10005-1875 Tel: (212) 269-4900 Fax: (212) 344-4294 Email: cbaltier@fmew.com Argonaut Insurance Company is represented by: Edward Fogarty, Jr., Esq. Brian M. Reid, Esq. LITCHFIELD CAVO LLP 420 Lexington Ave. Suite 2104 New York, NY 10170-2199 Tel: (212) 434-0101 Fax: (212) 434-0105 Email: fogarty@litchfieldcavo.com reid@litchfieldcavo.com Union Carbide Corporation is represented by: Steven R. Gilford, Esq. PROSKAUER ROSE LLP Three First National Plaza 70 West Madison Suite 3800 Chicago, IL 60602-4342 Tel: (312) 962-3510 Fax: (312) 962-3551 Email: sgilford@proskauer.com ASBESTOS UPDATE: Non-Friable Fibro at Methuen High to Be Sealed-In ------------------------------------------------------------------ Douglas Moser of The Eagle-Tribune reports that a building material coating containing asbestos that was discovered in the Methuen high school can be safely left in the building after the renovation, officials say. The material was discovered in September as workers gutted the south wing of the 1970s-era school, which is sealed off from the rest of the building as it undergoes a complete renovation. Most of the material is a coating and is non-friable, meaning it does not easily break into small fragments. "The coating was found, and a work plan was put in place," said Gino Baroni, owner of Trident, the Salem, N.H., project management company overseeing the $100 million renovation project. The substance that was found was a mastic applied to some of the vertical steel beams on the south wing as a waterproofing to prevent rust, Baroni said. Part of the project included welding stiffeners to some of these beams. Consigli, the construction company working on the building, and Trident drew up a plan for the Department of Environmental Protection to work around the mastic. After several meetings, DEP in October approved a plan to attach the stiffeners to parts of the beam without the asbestos mastic after the contractor conducted a test to make sure heat from the welding did not melt the substance, said Joseph Ferson, a spokesman for DEP. Once the work is complete, the mastic and beams will remain as they are and sealed up again inside the walls. The contractor also hired American Environmental of Holyoke to haul away and dispose of some insulation board and block that had the mastic on it. Ferson said DEP approved a window of Nov. 2 through Dec. 31 to conduct that work. Baroni said the main issue with the mastic is not inhabitability because the entire wing has been sealed off from the occupied north wing. Rather, the concern was for welders and others working nearby. According to the Environmental Protection Agency, mastics contain between 5 and 25 percent asbestos. This phase of the renovation project, during which the new wing will be built and the south wing will be renovated inside and out, is due to be done mid-2013. Classes for sophomores, juniors and seniors, now currently in the north wing, will be moved to the completed portions while the north wing is renovated next year. Freshmen are currently at the former Central Elementary School on Ditson Place. The whole project is scheduled to be completed by summer 2014 and be open in time for the 2014-15 school year. ASBESTOS UPDATE: Ohio Governor to Sign Anti-Double-Dipping Bill --------------------------------------------------------------- The Associated Press reports that a bill headed to the Ohio governor aims to curb duplicate lawsuits over on-the-job asbestos exposure in a state with one of the nation's largest backlogs of such cases. A spokesman for Gov. John Kasich said Tuesday, Dec. 11, he will sign the measure. It would require workers to divulge all asbestos claims filed by or for them or face perjury charges. Proponents say the proposal prevents double-dipping by victims, who have two separate ways of pursuing damages: trusts set up by sometimes bankrupted companies to compensate victims, or lawsuits against active businesses. Opponents say the bill impedes legitimate claims. They say its passage makes Ohio the first state to impose such claims restrictions. Similar legislation has been introduced in Louisiana, Oklahoma, Texas and West Virginia and in Congress. ASBESTOS UPDATE: Ex-Chief Federal Judge Tackles Montevallo Issues ----------------------------------------------------------------- Martin J. Reed for Alabama Live (al.com) reports that the high- profile Birmingham attorney who is an ex-chief federal judge representing various people worried about health threats from mold and asbestos at Montevallo Elementary School says they want a safe environment for education and work. U.W. Clemon described his clients including students, parents, workers and others at the facility in a letter dated Monday, Dec. 10, to the attorney for the Shelby County Board of Education that outlines their concerns and desires for the building and situation. "As you now know, our law firm represents parents/legal guardians of certain students who will not send their students into the hazardous Montevallo Elementary School (MES) due to the existence of black mold, snakes, asbestos, and other hazardous materials within the school," the letter states. "We also represent legal guardians of certain Hispanic students equally affected by these hazardous conditions, but who continue to send their children to MES out of fear of retaliation. Our clients also include non-student occupants of the MES facility whose health is and has been adversely affected daily by the hazardous conditions of MES," according to the five-page letter. Clemon states the firm's clients in the matter want Shelby County School District Superintendent Randy Fuller to identify "any non- hazardous facility" to send the children. "In sum, my clients are eager to send their children to any non- hazardous school designated by the Superintendent. But they will not, under threat of truancy proceedings and in the absence of a court order, send their children into a hazardous facility and thereby imperil not only their immediate and future health, but their very lives," the letter states. The letter arrived on the same day as more than 150 parents with their children gathered in the school's cafeteria for a meeting with Fuller and other district representatives to voice complaints and criticisms about the situation. Many parents have pulled their children from attending the school, despite officials stating the building is safe based on air quality tests and cleanup and construction work. Parents have identified numerous health issues in their children who attend the school, suspecting the mold in the building is the source. Clemon himself is no stranger to the concerns, blaming a recent hospitalization on mold problems in the school after attending a parent-teacher organization meeting in the cafeteria in past weeks. His letter to Birmingham lawyer Donald Sweeney, Jr., of the Bradley Arant Boult Cummings law firm outlines a host of health concerns and problems with the building experienced by children, workers and others. "The children of my clients, and for that matter a great many children attending MES, continue to suffer serious respiratory conditions (asthma, fever, chills and fever, shortness of breath, irritation of the eyes, nose, throat and lung), which has resulted in frequent and costly treatments at medical facilities, including Children's Hospital in Birmingham," the letter states. "Non-student regular occupants of MES have experienced inordinate rates of infertility and miscarriages. The long-term MES custodian, exposed daily to the asbestos materials in the Boiler Room, died of lung cancer last year," the letter continues. The concerns extend beyond those witnessed by parents, children and others. "It is imperative to also note that while the prevalence of respiratory and other symptoms are painfully obvious at this point, there may well be other injuries to my clients, symptoms of which are not apparent at this point," the letter states. Clemon accuses the school district of knowing about the problems with mold since 2007 at the earliest but failing to conduct proper work to correct the issue. "The black mold/moisture problem at the school has been known for more than a generation. The Superintendent has been fully aware of the problem for a very long time; but instead of installing a complete draining system around the entire school, as was recommended to him five years ago ... he has basically implemented the same stop-gap measures over and over again," according to the letter. A parent-teacher organization president in 2007 noted problems with mold and leaks in fifth-grade classrooms and the "need to install comprehensive drainage to get to the root of the problem," the letter states. Five years ago a U.S. Department of Agriculture district conservationist reviewed the school's mold and moisture problems and concluded the building needed a "drainage system to disperse water laterally and away from [the MES] building which will resolve mold problems inside lower classrooms," the letter states. In 2012, the problems continue to proliferate, Clemon notes. "Five years hence, in September 2012, the severity of mold in the fifth grade classrooms required that the Superintendent to remove the students from MES and house them in portable classrooms. After three months, and a "cleanup," the Superintendent has now, once more and again, declared the classrooms to be safe and all other parts of MES to be safe again," Clemon states. Clemon lists other concerns about 10 snakes found on the school grounds, including inside classrooms and the kindergarten hallway, in the last two years and the presence of asbestos in the building. He accuses the school district of failing to provide asbestos reports required by law to parents and others. Copies of the letter also went to the U.S. Attorney's Office for the North District of Alabama, various officials with the U.S. Environmental Protection Agency and the Alabama Department of Education. ASBESTOS UPDATE: Wales Committee Examines ARD Cost Recovery Bill ---------------------------------------------------------------- The Safety & Health Practitioner Newsletter reports that a Wales Assembly Committee has launched a public consultation on a Bill aimed at recovering costs of treatment for asbestos-related diseases (ARD). Proposed by Mick Antoniw AM, a former personal-injury lawyer, the Recovery of Medical Costs for Asbestos Disease (Wales) Bill is at the first stage of the legislative process and is being considered by the Health and Social Care Committee. This stage examines general principles, such as whether a law is necessary or whether the objective can be achieved through current legislation, and whether the wording of the Bill will achieve its stated aims. The objective of the Bill, according to the accompanying Explanatory Memorandum, is "to enable the Welsh ministers to recover from a compensator (being a person, by or on behalf of whom, a compensation payment is made to, or in respect of, a victim of asbestos-related disease) certain costs incurred by the NHS in Wales in providing care and treatment for the victim of the asbestos-related disease." Added Mr?Antoniw: "It is intended that the funds recovered will be used to provide additional assistance for asbestos victims and their families." ASBESTOS UPDATE: Nakasuk Elementary Abatement Nears Completion -------------------------------------------------------------- CBC News North reports that Nakasuk Elementary School in Iqaluit will soon be back to normal -- crews are almost done removing asbestos which was found in the school's old construction materials. Crews worked on the school every night for the past six weeks. "I would suggest that it was a very successful project," said Barry Cornthwaite, who is with the Department of Education. He said the project went well, even if they had to deal with a few extra requests from the Worker's Safety and Compensation Commission. Those extra requests added two weeks to the project, and meant getting rid of more asbestos-laden materials than originally planned. "Instead of having one sealift container of debris from the school, we're actually at five or six sealift containers full of debris from the school." The delay had no impact on students. "The repair work was completed in the evenings and on weekends so it didn't interrupt any student instructional time," said school principal Tracey MacMillan. MacMillan said she's thankful to the teachers, who had to do their prep work at home, and to the contractor, Indoor Air Quality Ottawa. She said that in addition to the renovation work, the company donated more than 11,000 cereal bars to the school's breakfast, lunch and snack program. ASBESTOS UPDATE: Fibro Partly Blamed for Carpenter's Death ---------------------------------------------------------- The In-Cumbria Newsletter reports that exposure to asbestos was partly to blame for a carpenter's death, an inquest heard. James Thomson, of West Shore Park, Walney, died in Furness General Hospital on Sept. 27 this year. The inquest into the 72-year-old's death heard he regularly worked with asbestos during his working life. The post mortem report revealed the immediate cause of death was a pulmonary embolism, or blood clot. Mr. Ian Smith, South and East Cumbria coroner, said this was typically a way in which a malignancy killed someone. Mr. Thomson' s son, Lee Michael Martin, told the hearing in Barrow Town Hall that his father used to smoke but stopped around 25 years ago and was in good general health, having had his troublesome knees replaced. He said Mr. Thomson worked in Barrow shipyard, at Govan in Glasgow and various construction companies, and had told him working with asbestos was "a regular occurrence" on building sites in the 1970s. Mr. Smith said the pathologist had found pleural plaques in Mr. Thomson's lungs, but there was no direct evidence of asbestos. The pathologist had looked for asbestos fragments in the lungs but was unable to find any. But Mr. Smith said: "It can be like looking for a needle in a haystack. It's not proof that they weren't there. "It's not possible in his view to say in certainty that the lung cancer was caused by the asbestos, or certainly by the asbestos alone. "Asbestos is a factor, but not the only factor." Summing up, Mr. Smith told the inquest on Friday: "Was the cancer caused by asbestos exposure? Probably. Partially, not fully. "The risk of getting cancer if you smoke and have contact with asbestos is much greater than if you only had one or the other. The fact he smoked historically is relevant to his condition." He recorded a verdict of death by a combination of natural causes and industrial disease. ASBESTOS UPDATE: 25 Bags of Fibro Found Under Winnipeg School ------------------------------------------------------------- Jen Skerritt of The Winnipeg Free Press reports that the province has launched a review to determine why 25 bags of asbestos were stored underneath a First Nations school. Berens River band council ordered the community's kindergarten-to- Grade 9 school closed after a worker discovered the asbestos in the school's crawl space. Community leaders felt it was unsafe for the school's 350 students and 100 staff to go into the school until an independent investigation determines there is no health danger. Officials from the province's workplace safety and health division ordered the school closed on Friday, Nov. 30, until results from further tests deem it safe for children to return. Deputy education minister Gerald Farthing said officials have launched a review to examine why the asbestos was stored at the school, how long it's been in the school's crawl space and whether the situation should have been handled differently. "First of all, we don't think it should've been stored there in the first place, properly or not," he said Monday, Dec. 10. "We want to make sure that every time we're dealing with asbestos in schools, it is handled in a safe and transparent way." Farthing said provincial education officials will conduct the review with the school division, community and federal government officials. Results from air, soil and surface samples taken from classrooms, the furnace room and the crawl space will be available in the coming days, Farthing said, and a Calgary-based engineering firm was to conduct further testing on Dec. 11. "Right now, we have to figure out whether or not kids can go back to this school," he said. Berens River Chief George Kemp said residents are particularly concerned because 60 children have sought treatment for respiratory illnesses in recent months, although no one knows whether the illnesses are linked to the school. Frontier School Division chief superintendent Ray Derksen said the school will be closed until Jan. 7. He said asbestos remediation was done with renovations to the mechanical system, and the asbestos was stored according to regulations and was to be removed by winter road this year. ASBESTOS UPDATE: Contractor Exposes Workers at Aberystwyth Project ------------------------------------------------------------------ A Press Release issued on behalf of the Health and Safety Executive by the Regional News Network reports that significant safety failures by a plumbing company may have led to two workers being exposed to dangerous asbestos fibers during a major refurbishment project on flats in Aberystwyth. The workers -- a site manager and a subcontractor -- were not provided with information about the presence of asbestos while working at the flats in the Penparcau area between November 2010 and February 2011. Superior Plumbing Installations Ltd, the principal contractor at the site, appeared before Aberystwyth Magistrates on Dec. 10 in a prosecution by the Health and Safety Executive (HSE). The court heard that a routine inspection by HSE found contractors carrying out refurbishment work without taking account of asbestos that may have been present. Workers had removed 82 meters of cement board, which a survey had identified as "presumed to contain asbestos", by breaking it up with a hammer and shoveling it into a wheelbarrow before putting it in a general waste skip. The contractor was due to do the same on two other properties, one of which had asbestos confirmed in the soffits. HSE found that Superior Plumbing had made no effort to obtain asbestos surveys that existed for the properties to determine if asbestos was present in the flats (Penybont, Gwel Rheidol, Bryn Ysgol and Tremafon blocks) or assess the risk of working with asbestos on the site. The firm also failed to make a plan to properly deal with its removal and hired a site manager for the scheme who had not been given asbestos awareness training. Superior Plumbing Installations Ltd, of Windmill Hill Business Park, Whitehill Way, Swindon, pleaded guilty to a breach of Section 3(1) of the Health and Safety at Work etc Act 1974 and was fined GBP5,000 and ordered to pay GBP3,830 in costs. HSE Inspector Phil Nicolle, speaking after the hearing, said: "Superior Plumbing's failure to follow advice, guidance and their own procedures to identify the presence of asbestos and plan for its safe removal has needlessly created a serious long term risk to workers' health. "Contractors must ensure an asbestos survey has been carried out where a building -- or part of it -- needs upgrading, refurbishment or demolition. "The survey must locate and identify all asbestos-containing material before any structural work begins and appropriate arrangements put in place to deal with any asbestos containing materials that are uncovered. "Around 4,000 people die every year as a result of breathing-in asbestos fibers, making it the biggest single cause of work- related deaths in the UK." Further information on working safely with asbestos can be found on the HSE website at http://www.hse.gov.uk/asbestos Notes The Health and Safety Executive is Britain's national regulator for workplace health and safety. It aims to reduce work-related death, injury and ill health. It does so through research, information and advice; promoting training; new or revised regulations and codes of practice; and working with local authority partners by inspection, investigation and enforcement. www.hse.gov.uk Section 3 (1) of the Health and Safety at Work etc Act 1974 states: "It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety." ASBESTOS UPDATE: Scrappers Stir Up Fibro, Cleanup to Cost $78K -------------------------------------------------------------- Kevin P. O'Connor of The Herald News reports that a few hundred dollars in copper scrap will cost the Housing Authority $78,000 to clean up after the mess criminals left behind. Scrappers broke into the two vacant apartment buildings at Oak Village, 1177 Locust St., sometime in the past month to tear out the copper pipes connected to the boilers that once heated the buildings. For their work, the thieves will probably get less than $200 from the scrap yard, officials say. But when the thieves struck, they ripped down the asbestos insulation wrapped around the pipes. "The asbestos dust went everywhere," said Peter Proulx, the director of facilities management for the Housing Authority. "We have to clean that up before we can tear the buildings down." The buildings at Oak Village were condemned by the city and the Housing Authority and scheduled for demolition sometime this month. "Oak Village was built on an old quarry," Proulx said. "The footings on two of the seven buildings must have been set improperly when the development was built in 1967. The two buildings sank from the middle." At first Housing Authority maintenance personnel were able to keep the apartments open by resetting windows and doors that would stick closed or refuse to open. One year ago, the city's building and fire inspectors stepped in and said the buildings had listed so severely that it was no longer safe to send electricity and gas through the wires and pipes. The fear was that wires would work loose or gas pipes would break because of the tilt. The two buildings, containing 10 apartments total, were vacated and boarded. Southern Middlesex Industries of Norwood was the low bidder, offering to tear down the buildings, cart away the waste and restore the site for $267,000. "When we did the preconstruction inspection, we discovered the damage," Proulx told the Housing Authority at its meeting Tuesday, Dec. 11. SMI did a full inspection of the site. The Housing Authority approved a change to the contract, agreeing to pay $78,000 more for the asbestos cleanup. Of that, $50,000 will be paid by the Housing Authority's insurance policy, Proulx said. "The problem is the asbestos dust," Proulx explained. "Instead of an easy and clean operation of cutting the insulation and carrying it outside in one piece, the company now has to go in and clean every square inch before they begin demolition." Asbestos is a very efficient insulator, but the dust has been shown to cause lung cancer. Workers trained to remove asbestos work in full protective suits with breathing masks designed to capture the dust. Asbestos abatement contractors also set up vacuum systems to capture demolition dust before it can leave the building. The cleanup is expected to add 51 days to the project. "We are hoping they will begin work [Dec. 13]," Proulx said on Wednesday, Dec. 12. "We don't expect the demolition to begin until after the holidays. "We should have the site ready to plant grass by the spring." Nothing will be built on the site. Housing Authority managers are meeting with Oak Village residents to decide what to do with the open space, officials said. ASBESTOS UPDATE: Court Junks Putative Class Action Against BASF --------------------------------------------------------------- Jonathan Randles for Law360 reports that a New Jersey federal judge on Wednesday, Dec. 12, dismissed a putative class action accusing BASF Catalysts LLC and its counsel Cahill Gordon & Reindel LLP of scuttling thousands of asbestos injury suits by concealing and destroying evidence revealing that the company's talc products contained the carcinogen. The suit sought declaratory and injunction relief enabling potentially thousands of individuals to refile their asbestos claims against BASF in courts across the country. But U.S. District Judge Stanley R. Chesler said on Dec. 12 that he "simply lacks authority" to grant such a request that is barred by under Article III of the Constitution and would require the court to impermissibly exercise its power over state courts throughout the country. "The amended complaint describes abhorrent and outrageous litigation tactics, and if the allegations about the conduct of BASF, Cahill and their employees are true, the court would hope that some redress in the fora where the allegedly invalid dismissals were obtained could be pursued," Judge Chesler said. The complaint was brought by representatives of six individuals who died from asbestos-related ailments and over the span of more than 20 years brought complaints against BASF alleging their ailments were caused by workplace exposure to talc products manufactured and sold by BASF predecessor Englehard Corp. and its related entities. To shield BASF's liability from a slew of asbestos-related suits, the plaintiffs claimed the company -- with Cahill's assistance -- destroyed evidence showing the talc products contained asbestos and lied to courts and litigants that there were any documents revealing otherwise. In motions to dismiss the complaint, BASF and Cahill rebutted the plaintiffs claims, saying the underlying matters were litigated fairly. Cahill's motion argued only a handful of companies said that the plaintiffs' contention that they may have settled underlying litigation for a nominal amount because they were misled about the existence of asbestos in talc was "beyond implausible." While a handful of companies that have been targeted in similar litigation may have had asbestos in their talc products, a review of the history of asbestos litigation reveals talc is at the "extremely low end of the asbestos-exposure spectrum," the firm said. BASF through a subsidiary owned a talc mine in Johnson, Vt., from 1967 to 1983 that tests revealed contained asbestos fiber. A BASF executive later testified at depositions during an injury suit filed in 1979 that the company was aware the mine contained asbestos. Aware of the risks the deposition posed, BASF and Cahill secured a confidential settlement in the original suit and then allegedly began collecting and destroying documents related to the Johnson mine. The mine was closed in 1983 and flooded. The transcript, along with other concealed evidence, reappeared in 2009 during another injury suit in New Jersey, according to Wednesday's ruling. Judge Chesler held that the plaintiffs' fraud claim was barred by New Jersey's litigation provision. Although the plaintiffs argued that the defendants alleged actions fell outside the scope of lawful litigation activity, the alleged fraud and omissions occurred during judicial proceedings, the ruling said. Judge Chesler also noted that, as to questions about litigation privilege, the plaintiffs relied heavily on case law from outside of New Jersey. "Plaintiffs' argument that the scope of the privilege is limited to statements made within the bounds of an attorney's ethical and lawful duties conflicts with the jurisprudence on the subject and with the New Jersey Supreme Court's express holding which rejects consideration of the propriety of the attorneys' conduct," Judge Chesler said. Attorneys for the plaintiffs could not immediately be reached for comment Wednesday, Dec. 12. The plaintiffs are represented by Christopher M. Placitella -- cplacitella@cprlaw.com -- Mike Coren -- mcoren@cprlaw.com -- Michael Noonan -- mnoonan@cprlaw.com -- and Matthew T. Stone mnoonan@cprlaw.com -- of Cohen Placitella & Roth PC. BASF is represented by Stephen M. Orlofsky -- Orlofsky@BlankRome.com -- and David C. Kistler -- Kistler@BlankRome.com -- of Blank Rome LLP and Eugene F. Assaf -- eugene.assaf@kirkland.com -- and Michael F. Williams -- michael.williams@kirkland.com -- of Kirkland & Ellis LLP. Cahill is represented Robert E. Ryan -- rryan@connellfoley.com -- Craig S. Demareski -- cdemareski@connellfoley.com -- and Marc D. Haefner -- mhaefner@connellfoley.com -- of Connell Foley LLP. The case is Williams et al. v. BASF Catalysts LLC et al., case number 2:11-cv-01754, in the U.S. District Court for the District of New Jersey. ASBESTOS UPDATE: Camp Roberts Demolition Process Begins ------------------------------------------------------- According to Pat Guth for The Mesothelioma Cancer Alliance, along Highway 101 near San Miguel, California sits more than 700 buildings that once housed America's soldiers in the 1940s. But much of the now-dilapidated base, known as Camp Roberts, has sat empty for more than 30 years. Unfortunately, however, though the majority of the camp has long been an eyesore, it's taken more than a decade to get permission to tear it down, largely due to the toxins inside, including asbestos, lead-based paint, and other hazards. Now, the demolition process has finally begun. An article in The Tribune reports that a three-phase project for demolishing the hundreds of buildings began this week and will cost about $3.4 million. Much of the expense pertains to the fact that hazardous materials, including asbestos, need to be removed and disposed of properly before the wrecking ball comes in. In fact, it's been noted that nearly all of the old green-roofed structures at once-busy Camp Roberts contain asbestos. That includes barracks, mess halls, chapels, supply rooms and administration offices. Because of the large amount of hazardous materials at the camp, the California National Guard -- which runs the camp -- was made to build its own 85-acre hazardous waste landfill for disposal of the toxic debris, including not only asbestos-containing items but also wood contaminated with lead-based paint. There is also disease risks from rat droppings found throughout the camp. The permits for the landfill took more than 10 years, hence the delay. But it isn't really the end of the camp. Though what currently remains will be demolished, in place the National Guard will be building new living quarters, a solar farm, and a modern dining hall. Parking and native landscape will spring up where the old barracks once sat. The health of those who will live and work at Camp Roberts is why it's so important that the hazards be removed, officials note, eliminating the risk of asbestos exposure and exposure to additional toxins, which can cause serious illnesses. Veterans -- including perhaps many who served and resided at Camp Roberts -- have the highest rates of mesothelioma in the nation. This cancer is a direct result of asbestos exposure. Veterans were at risk of exposure during the World War II and Korean Conflict years and part of the Vietnam era as well, as asbestos materials were used abundantly on bases and aboard military ships during those years. ASBESTOS UPDATE: USS Enterprise Vets Now Suffer ARD, Mesothelioma ----------------------------------------------------------------- Tim Povtak of The Mesothelioma Center reports that the USS Enterprise, one of the most decorated aircraft carriers in American military history, was retired earlier this month after 51 years of active duty, spanning both the heights and depths of the Navy's asbestos era. The USS Enterprise was the world's first nuclear-powered aircraft carrier, allowing it to pioneer the defense of American interests around the world, providing military muscle for every major conflict since the Cuban Missile Crisis in 1962. It was officially inactivated during a week-long ceremony at the Norfolk Naval Station in Virginia, where thousands of former crew members, families and ship builders gathered to say goodbye. Several major upgrades through the years allowed it to become the oldest active combat vessel in the fleet and the only aircraft carrier of its class ever built. More than 100,000 crewmen served under 23 different commanders. It took almost four years, 61,000 tons of steel, 230 miles of pipe and tubing, 1,500 tons of aluminum and untold tons of asbestos to build before the Navy dubbed it "The First, The Finest," super carrier. Sailors at Risk for Mesothelioma and Lung Cancer For all its glory and the good it did, it also undoubtedly has led to -- and will continue to lead to -- many cases of asbestos- related disease, including mesothelioma, the rare cancer that has struck a disproportionate amount of Navy veterans. Every United States Navy ship commissioned before 1975 made extensive use of asbestos from bow to stern. It was considered an excellent way to fireproof and insulate the ships and most everything on them. Engine rooms, fire rooms and pipes throughout the ships, including those that crossed through the mess halls and sleeping quarters, were covered with asbestos lagging. Asbestos was popular because it was chemical-resistant, had good tensile strength and was heat- resistant -- all qualities that warships needed. For years, the Navy minimized the threat that asbestos posed to sailors, ignoring many of the scientific and medical warnings about the dangers. Navy veterans who served aboard the Enterprise in the 1960s, ?70s and ?80s are just now being diagnosed with mesothelioma. It can take anywhere from 20 to 50 years after exposure to asbestos before symptoms of mesothelioma will appear. Too often, the early symptoms often are misdiagnosed as less serious health issues. New Asbestos Safety Standards The Navy now requires ships built before 1980 to carry an Emergency Asbestos Response Team (EART) to properly identify and handle potential asbestos exposures, but that requirement has only been implemented in the last two decades. When ships like the Enterprise aged, the asbestos throughout them became more brittle and more dangerous as the microscopic fibers went airborne. When asbestos was uncovered on the Enterprise while docked, civilian contractors were usually hired to assess and abate the problem. But because nuclear-powered vessels can stay at sea almost indefinitely -- six-month deployments were not unusual -- asbestos discoveries are handled today by on-board EART teams. When the Enterprise was at sea in those early years, though, the asbestos problems were ignored, putting sailors at unnecessary risk. "A lot of the crew doesn't even know what we do," Machinist Mate 3rd Class Derek Begay, EART member aboard the Enterprise, said in a story written by the Carrier's public affairs office in 2006. "We assemble whenever asbestos is discovered. We come and isolate the area, and remove whatever insulation needs to be removed." The addition of the EART teams -- and the Navy's attention to the asbestos problem -- has made a huge difference in safety for today's military personnel, but it didn't help those exposed 30 and 40 years ago. According to the Navy, crew members now are taught to avoid any contact with the asbestos lagging around the ship, and are instructed to report it so the EART teams can handle it appropriately. They come equipped with the same precautionary equipment -- the respirators, protective clothing, and boots -- that the trained civilian contractors wear. "It feels good when you can get out there and do something not a lot of people on board can do," said machinist's mate and EART team member Aaron Eads. "It's good to help out with safety issues like this, and prevent people from getting sick down the road." At the time it was built, the Enterprise was the largest ship in the world. Because it didn't need conventional fuel, it was capable of carrying considerably more aircraft fuel than any other carrier. The nuclear reactors allowed it to set speed records and avoid a need to refuel, when carriers are the most vulnerable to attack. Retiring the Enterprise reduces the number of carriers in the United States fleet to 10. According to the Associate Press, it will be several years before the Enterprise will be fully decommissioned. It's nuclear fuel must first be removed, making it unfit for service. ASBESTOS UPDATE: Norwell Joins in AHERA Awareness Training ---------------------------------------------------------- The Wicked Local Norwell reports that 17 custodial employees and designated school system managers from Norwell and other surrounding Massachusetts communities recently participated in an Asbestos Hazard Emergency Response Act Awareness (AHERA) Training seminar as required under federal environmental protection regulations. The three-hour training program took place Oct. 23 in Plymouth at the Plymouth Public Library and was presented free of charge by the Massachusetts Interlocal Insurance Association, the Town of Norwell's property and casualty insurance provider. Janet McKenna, an environmental engineer with the Massachusetts Department of Labor Standards, conducted the AHERA Awareness Training program, which focused on the roles and responsibilities of both K-12 school custodians and the official AHERA Designated Person in each Local Education Agency. Custodians learned about general asbestos awareness topics such as health effects, properties of asbestos, how to manage asbestos safely in place, operations and maintenance practices, common locations of asbestos within a building and asbestos management planning. AHERA Designated Persons, who will manage local adherence to the requirements, learned about selection of licensed personnel to perform abatement projects, inspections, notifications and air testing. They also covered recordkeeping requirements, obligations for both new and renovated schools, proper management of materials and how to avoid the top 10 AHERA violations. "Norwell's leaders and employees continue to show their commitment to reducing risk exposures and to control the town's insurance costs by taking advantage of MIIA's outstanding loss control training programs," said Jeff Helm, the town of Norwell's insurance advisor. AHERA mandates that all K-12 schools, including public, private, charter and church affiliated, must conduct specific asbestos inspection activities; keep asbestos-containing building materials in good condition; and use properly trained and/or licensed people to conduct any asbestos related work. Upon completion of the AHERA Awareness Training and other MIIA risk- and loss-prevention programs, Norwell is eligible to receive insurance premium credits through the MIIA Rewards Programs, reducing its property and casualty insurance costs. MIIA is the nonprofit, member-based insurance arm of the Massachusetts Municipal Association insuring nearly 400 cities, towns and other public entities in the state. In fiscal 2012, nearly 8,000 city and town employees participated in nearly 400 MIIA-sponsored technical trainings and management seminars offered throughout the state. Member municipalities' efforts yielded more than $2.6 million of premium credit collectively through the MIIA Rewards incentive program for a 10-year total of more than $17.3 million. For more information, visit http://www.emiia.org/and http://www.mma.org/ ASBESTOS UPDATE: Ozaukee County Cited for Breach of Abatement Laws ------------------------------------------------------------------ Don Behm of the Journal Sentinel reports that Ozaukee County has paid $4,665 in fines to the state Department of Justice to resolve two citations for violating state asbestos removal regulations, county officials said Thursday, Dec. 13. The county failed to notify the state Department of Natural Resources last year that it would be demolishing eight buildings at the county fairgrounds off Washington Ave. in Cedarburg, according to one citation issued May 23 by DNR environmental Warden Christopher Shea. In a citation issued on May 22 of this year, Shea says the county failed to inspect each of the buildings for asbestos before demolition work began. The buildings were removed between August and December 2011, the citations say. Shea interviewed county officials and reviewed demolition records in February after the county asked to submit an after-the-fact notification of the work. On Wednesday, Dec. 12, the county pleaded no contest to the two violations in Ozaukee County Circuit Court, Corporation Counsel Rhonda Gorden said. "Rather than contest the two citations in a court trial, the county pleaded no contest," she said. Both violations were first offenses for the county, according to court records. Court Commissioner Barry Boline found the county guilty of the violations and imposed the fines. The county paid $2,332.50 on each citation. Both the notification and pre-demolition inspection are required under state environmental regulations, and the only exception is the demolition of one single-family home on its own, DNR asbestos coordinator Mark Davis said. If insulation or other asbestos-containing building material is found in the inspection, it must be removed before demolition under state regulations. Asbestos fibers are a known human carcinogen. Exposure to asbestos can result in lung cancer; mesothelioma, a cancer of the chest cavity lining; and asbestosis, a scarring of lung tissue. The eight buildings were removed to make space for the expansion of the 4-H Youth Building and the construction of the multipurpose building on the north end of the fairgrounds, Highway Commissioner Robert Dreblow said. The Fair Board accepted bids from companies and organizations for the disassembly and removal of the buildings, Dreblow said. After the initial work was done, Dreblow's crews were sent in to finish removing remaining structures and concrete slabs. At the site of a former exhibition building, the successful bidder left behind a portion of the structure, and it contained insulation, Dreblow said. The county tested the insulation and determined it did not contain asbestos. Even though the test was negative for asbestos, it was done too late, Dreblow said Thursday, Dec. 13. "We violated the procedures and we were fined," he said. ASBESTOS UPDATE: Aussies Choose State Payout Over Court Action -------------------------------------------------------------- Chris Pippos for The Advocate (AUS) reports that 17 asbestos victims such as former Goliath Cement workers have received almost AUD6 million in compensation under the relatively new state scheme, but one applicant recently died before being assessed. Of these, 12 were deemed to have an "imminently fatal" asbestos- related disease. The state government was recently updated on its Asbestos Disease Compensation Scheme, which was launched last year. Union Fears Asbestos Report Will Be Hidden Asbestos Free Tasmania Foundation chief executive Susan Wallace said almost $6 million had been paid up until October 31. Of the successful applicants: -- Twelve were deemed "imminently fatal" and suffering from either mesothelioma, lung cancer or other rare cancers. -- Five were assessed as having a "non-imminent fatal disease", being most likely asbestosis. Of the total 45 applications to date: -- One was withdrawn because of an existing common law case settlement in Victoria. -- One could not be assessed because the applicant passed away. -- Three were not successful. -- Eleven are still being assessed. -- Three were incomplete. -- Nine applicants had an impairment "below the 10 per cent threshold". Asbestos Rears Its Toxic Head Ms. Wallace said the 17 successful applicants were workers from companies such as the then Goliath Cement, at Railton, paper manufacturers, which could have included the mill at Burnie, mechanics, heavy industry and the roofing industry. Ms. Wallace said more asbestos victims were now choosing to apply for compensation through the scheme rather than pursue a civil claim in the courts. "Traditionally Cement Australia had a habit of settling out of court so it was very difficult to give accurate figures on how many people they were compensating," Ms. Wallace said. "People still have a choice to go through common law." More than 50 victims of asbestos and respiratory illness linked to the Railton factory have settled compensation cases. Ms. Wallace said victims who were compensated through the state scheme could still pursue civil action if they deemed the compensation unreasonable, requiring them then to repay the government the state money. However, as was already evident, it was unlikely the courts in Tasmania would pay more than the state scheme, Ms. Wallace said. For example, Disease Tasmania founding member and ex-Goliath Cement worker Laurie Appleby, of Beulah, was left with only AUD18,000 (a total AUD55,000 payout) in court- approved compensation several years ago after deducting medical and legal fees. Ms. Wallace said medical expenses were "uncapped" under the state scheme. ASBESTOS UPDATE: Texans Oppose Anti-Double-Dipping Bill ------------------------------------------------------- Marilyn Tennissen of The Southeast Texas Record reports that the Ohio House of Representatives have passed legislation designed to stop the practice of "double-dipping" in asbestos litigation. In asbestos litigation, a plaintiff can receive compensation from the defendant, bankruptcy trust funds or both. Supporters of the Ohio legislation have said it will stop double- dipping by not allowing people to go after money from trusts of bankrupted companies created to compensate asbestos victims as well as filing lawsuits against current businesses. Texas is one of a handful other states, including West Virginia, Louisiana and Oklahoma, that are also working on similar legislation. In March 2011, State Rep. Doug Miller (R-New Braunfels) filed House Bill 2034, which would mandate that claimants apply for bankruptcy trust payments before going to trial against solvent defendants. The bill closes a loophole used by trial lawyers and would stop them from gaming the legal system to enrich themselves at the expense of asbestos victims, Miller said in a March 2, 2011, story reported by the Texas Civil Justice League. Most trial lawyers filing asbestos lawsuits in Texas don't file claims with the bankruptcy trusts until after the litigation has concluded, according to Miller, and that practice avoids settlement credits and maximizes damages against solvent defendants. H.B. 2034 provides for simultaneous filing of trust claims and tort suits with a deadline of filing trust claims 90 days before trial. "The legal system was designed to make victims whole, not to allow them to collect twice for the same injury," said Lee Parsley, president and general counsel of the Texas Civil Justice League. At the end of the legislative session however, HB 2034 was left pending in committee. Another Texan is working on reform legislation on the national level. U.S. Rep. Lamar Smith (TX-21), chair of the House Committee on the Judiciary, submitted House Resolution 4369, the Furthering Asbestos Claim Transparency Act of 2012 (FACT Act). The FACT Act would require asbestos trusts to file quarterly reports to the bankruptcy court describing each demand the trust received from a claimant, including the name and exposure history of the claimant and any basis for payments from the trust to the claimant. The bill was sponsored by U.S. Rep. Benjamin Quail of Arizona and co-sponsored by Reps. Bob Goodlatte of Virginia, Tim Griffin of Arizona, Jim Matheson of Utah, Dennis Ross of Florida and James Sensenbrenner Jr. of Wisconsin. According to Smith's bill summary, dissenters claim the reporting and disclosure requirements of FACT are "an assault" against asbestos victims' privacy. They also say the bill would be inequitable because it requires disclosure by trusts, but does not require solvent defendant companies to disclose their confidential settlement agreements. Those opposed to the bill claim there is no evidence of systemic fraud with asbestos trusts and say the bill will actually decrease compensation to asbestos victims by forcing the bankruptcy trusts to prepare "burdensome" reports. Despite the dissents, on June 8 the Judiciary Committee met in open session and after a 15-14 vote, ordered H.R. 4369 to be reported favorably to the House. On Sept. 21, the legislation was placed on the Union calendar, which is a calendar used by the whole House to schedule bills involving money issues. The Ohio bill, having already passed the Senate, now awaits the signature of Gov. John Kasich. ASBESTOS UPDATE: Apex Sues Insurer for Breach of Coverage Terms --------------------------------------------------------------- Kelly Holleran of The Madison / St. Clair Record reports that a corporation has filed suit against the insurance company that it claims refuses to defend it in an asbestos lawsuit. Apex Oil Company claims Mary M. Krohn filed an asbestos lawsuit against plaintiff Apex on Aug. 4, 2010, in Madison County Circuit Court. She filed the lawsuit on behalf of her recently deceased husband, Richard A. Krohn, who had worked for Clark (Oil) from 1957 until 1996. Later, Apex bought Clark. Mary Krohn named Apex as a defendant in her asbestos lawsuit, saying the company is liable for her husband's damages, according to the current complaint filed Dec. 3 in Madison County Circuit Court. In turn, Apex requested that Arrowhead pay for the defense costs it incurred in defending Krohn's lawsuit, the suit states. Arrowhead had issued workers' compensation insurance to Clark at the time that Richard Krohn worked for the company, the complaint says. "As Clark was an insured under the policies set forth...and the Krohn suit was within the coverage provisions of the aforementioned policies, Arrowhead had a duty to defend and indemnify Apex under the Workers' Compensation Insurance Policies," the suit states. However, Arrowhead has refused to pay Apex's defense costs, it claims. In its complaint, Apex is seeking an award for the amounts it incurred in defending itself against the Krohn lawsuit, plus attorneys' fees, pre- and post-judgment interest, costs and other relief the court deems just. William J. Knapp and Heather Mueller-Jones of Knapp, Ohl and Green in Edwardsville will represent Apex. Madison County Circuit Court case number: 12-L-1962. ASBESTOS UPDATE: Trust Clarifies Alleged Court Action ----------------------------------------------------- Piet Van Zyl for The New Age (South Africa) writes that the trustees of the Asbestos Relief Trust (ART) were alarmed to read in The New Age on Oct. 19, 2012, that the trust had allegedly been the subject of a court action resulting in an order that it move its offices from Johannesburg to Kuruman and that two additional community representatives should be appointed to the board of trustees. The article was apparently based on an interview with the deputy minister of mineral resources. Had the reporter approached the ART, it would have pointed out that there was no court application, hearing or order against the trust. The facts are that: -- A community group that has not been able to provide verification of who they claim to represent has been making claims against the trust for many years. -- The trustees have made numerous attempts to explain to the community group why not all claimants qualify for benefits in terms of the trust deed. Representatives of the local, provincial and central governments have been party to these engagements. -- More recently, the community group persuaded the premier of the Northern Cape and the deputy minister for mineral resources to give them a hearing. -- This resulted in the Master of the High Court calling a meeting with the trustees, where the complaints of the group were tabled. -- Subsequent to the meeting, the master has sought information from the ART, which it will provide in full. Accordingly, the first batch of this information has already been provided to the master. -- The master declared that there was no conceivable basis for the trustees to make ex-gratia payments to the community group. ART considers it appropriate to clarify the position in respect of the purpose and objectives of the trust in order to prevent further misunderstanding and misinformation. The trust was established in March 2003, following an out of court settlement, with the primary objective of providing compensation -- as fully, fairly and effectively as it's means allow -- to qualifying claimants who are suffering from an asbestos related disease (ARD), more specifically asbestosis, asbestos-related lung cancer and mesothelioma. The trust provides compensation to qualifying claimants who were occupationally or environmentally exposed to asbestos from qualifying operations. As set out in the trust deed, a claimant must: -- Have been exposed to asbestos at a qualifying operation, that is direct or indirect subsidiaries of and/or companies associated with the founders of the trust, Gencor Limited, The Griqualand Exploration and Finance Company and Msauli Asbes Beperk (The trust therefore does not cover all asbestos operations in South Africa and is prohibited by the trust deed from offering compensation to sufferers who may have contracted an ARD elsewhere); and -- Must have developed a compensable ARD. In order to determine whether a potential claimant has a compensable ARD the trust appointed an independent panel of occupational medicine specialists to assess each person?s medical records. This panel comprises some of South Africa's leading experts in the occupational medicine field. The claims process is open to all persons who believe that they meet the criteria to qualify for compensation and is free, including first-time medical examinations that potential occupational claimants must undergo to determine whether they have a compensable ARD. Although ART continues to search for those who qualify, it believes that to date most of the potential beneficiaries of the trust who reside in South Africa and in neighboring states have been made aware of the trust. Out of some 14500 individuals who have applied, R244.8 million has to date been paid to 3610 qualifying claimants. Because of the long latency period for asbestos-related diseases to manifest, the trust deed requires the trust to meet claims until 2028. As at Sept. 30, 2012, the trust retained R301 million, inclusive of investment income, to provide for the estimated number of future claims based on actuarial projections and the evidence provided by medical authorities. It is important to point out that even if a claimant does not have a compensable ARD when he/she first applies to the trust, he/she may lodge a further claim if they develop an ARD or a more severe form of the disease at a later stage. It is the primary responsibility of the trust to serve the interests of the qualifying individuals, who face the prospect of being very ill and to ensure that the monies are managed appropriately in order that they are, in fact, available to the qualifying individuals who require this money. Piet Van Zyl is the chairperson of the Asbestos Relief Trust. ASBESTOS UPDATE: Tons of Toxic Fibro Dumped in Central Sydney ------------------------------------------------------------- Linda Silmalis of The Sunday Telegraph (Sydney) reports that police were forced to close a lane in Ultimo in central Sydney on Dec. 15, to allow specialist Sydney City Council contractors to remove two tons of illegally dumped asbestos. Fire and Rescue NSW (FRNSW) crews and a HAZMAT team arrived at Wattle Lane, Ultimo, on Friday night (Dec. 14) before specialist officers from Sydney City Council moved in on Dec. 15 to clean up the dangerous material. Two childcare centers are located meters from Wattle Lane: the KU Wattle Lane Children's Centre and the Magic Pudding centre on McKee St. It was expected the clean-up could take up to two days with crews having to work slowly so as not to break up the material, which could send the asbestos fibers airborne. A Sydney City Council spokesman said the council's contractors were working closely with the NSW Environment Protection Authority to clean up the material and identify who dumped it. "At this stage it's unclear where the asbestos came from or who was responsible for its illegal dumping," he said. "It is around two tons of material. We are hopeful it will all be removed by Monday (Dec. 17)." FRNSW Inspector Chris Sedgwick said crews were concerned fibers could blow away. "We covered it with black plastic and then sand," he said. The laneway, between Macarthur St and Mary Ann St, is just two blocks from the city's waste management depot. Sydney City Council has been calling for the removal of a state government waste levy from the disposal of asbestos, amid claims it contributes to illegal dumping. ASBESTOS UPDATE: Sydney Soil Shipment to Port Kembla Terminated --------------------------------------------------------------- Chris Paver of The Illawarra Mercury (Aus) reports that contaminated soil shipped to Port Kembla from Sydney's Barangaroo development site will be trucked out of the region and further shipments abandoned. Lend Lease struck a controversial deal with the port's management earlier this year to ship up to 600,000 tons of soil from the Sydney site for use in land reclamation at Port Kembla. But the deal came unstuck in August when the first load was found to contain pieces of asbestos, despite "rigorous testing" and assurances it would be safe. The NSW Environment Protection Authority quickly revoked Lend Lease's permission to ship the soil and ordered that the stockpile at Port Kembla be kept wet and the air monitored. On Dec. 14, the environmental watchdog confirmed there would be no more shipments and the company had not applied for a second resource recovery exemption. An EPA spokeswoman said it had been Lend Lease's decision. "Lend Lease is currently investigating a number of options to remove and dispose of the material that is currently on site." A spokesman for the company confirmed it had not applied for a new approval to ship the soil. "The material stockpiled at Port Kembla will be removed from the site via truck to an approved landfill site in the new year," he said. The landfill site will not be in the Illawarra. The spokesman also said no airborne asbestos had been identified when the material was taken to Port Kembla, and the company had worked closely with the EPA and port management to address the issue. It is understood the material, which was being excavated from Barangaroo South to make way for building works, is now being trucked to registered landfill sites elsewhere. Port Kembla Port Corporation chief executive officer Dom Figliomeni said the port would need to source fill for the outer harbor expansion from elsewhere. "It always has been the port's objective that the material must be environmentally suitable for placement in our reclamation," he said. Mr. Figliomeni said he had not been formally notified that no future shipments would occur, but understood that to be the case from discussions with the company. It was Lend Lease's responsibility to remove material already at Port Kembla and the company would need to work with the EPA to decide on an acceptable method and where to dispose of it, he said. South Coast Labour Council secretary Arthur Rorris said stopping shipments and removing the soil was the "right call". The labor council endorsed bans on unloading or handling the fill after the asbestos was found. ASBESTOS UPDATE: Firm Revives Dormant Cases of 13,000+ Claimants ---------------------------------------------------------------- Ian Duncan of The Baltimore Sun reports that a Baltimore judge on Monday, Dec. 17, was scheduled to hear an ambitious plan to revive the long dormant cases of more than 13,000 people who say they have been sickened by asbestos, an attempt by the Law Offices of Peter G. Angelos to return to a strategy that made a fortune for its founder. In the early 1990s, the city established a two-tiered system to deal with an overwhelming amount of asbestos suits, prioritizing the cases of the sickest people while delaying trial for people who claimed to have been exposed, but had no symptoms. The Angelos firm says there are many people who have since become ill but now have no real chance of getting their cases through congested courts. In a court memo, opposing lawyers in the case called the plan "a backdoor attempt" to undermine a system that works and has been widely adopted by courts across the country. Opponents say the firm is trying to bully potential defendants into settling in weak cases. The proposal would revive an approach in which the Baltimore Circuit Court would consider a large volume of cases at one time, using a few examples to establish broad links between asbestos and health problems. That would clear the plaintiffs to sue for damages in groups based on the circumstances of their cases. "We've done it before and it's been successful before and we need to do it now because we have all these cases that need resolution," said Theodore M. Flerlage, one of the Angelos attorneys involved in the case. "There are lot of people who have been waiting a long time and are sick now and need their day in court." The firm won settlements of more than $1 billion in asbestos suits in 1992 alone. The Angelos plan does not name specific defendants, but they would likely include manufacturers, suppliers and contractors who produced and worked with asbestos, Flerlage said. The plaintiffs were all exposed in Maryland, he added. Asbestos, used throughout the 20th century in insulation and building materials, has been linked to many types of cancer and lung diseases. Business groups and possible defendants argue that the strategy would violate their rights to a fair hearing. "It is extremely concerning to see a movement by the Angelos firm to turn back the clock to an outdated and discredited method of asbestos litigation," said Harold Kim, executive vice president of the U.S. Chamber Institute for Legal Reform, a group opposing the Angelos plan. "There's a very high likelihood that a lot of these people aren't sick and their claims are supported by discredited doctors." Kim said that trying to rush cases through as Angelos is proposing will allow diagnoses based on the opinions of dodgy doctors to slip through the cracks. "It's basically an attempt to force large settlements," he added. "You flood the system with complaints and you try to leverage settlements." Kim pointed to an investigation that started in a Texas federal court and showed that doctors had questionably diagnosed thousands of patients with asbestos related illnesses. Misconduct could go undiscovered if defendants are pressured into settling, Kim said. Flerlage said he's not aware of any of his clients having been diagnosed by a doctor who has been shown to have made improper diagnoses. "As far as I know, at least involving this firm, this issue has not come up," he said, and added that plaintiffs would still need to show that they were sick as a result of asbestos exposure. In court filings, defense attorneys also criticized the Angelos plan as too vague, arguing that his firm should name plaintiffs and defendants. A memo outlining the plan only says it would apply to people with a range of cancers and other illnesses -- but not mesothelioma, a type of cancer closely associated with asbestos exposure. Flerlage declined to make any of the plaintiffs available for interview, citing the ongoing litigation. John M. Glynn, a retired judge who runs the city's asbestos docket and scheduled to preside at the Dec. 17 hearing, said in an interview that Angelos' firm probably wants to bunch the cases together because they typically pay out less and might not be worth pursuing individually. "I'm sure from the plaintiffs' perspective it would be more desirable if you could settle them in one group," he added. In the early 1990s, Angelos' firm handled two big sets of asbestos cases, bringing in large payouts for many of the clients, and for Angelos -- who used some of the proceeds to buy the Baltimore Orioles. He personally took in about $9 million in 1994, for example, according to a Forbes magazine analysis at the time. But in the face of an overwhelming number of new asbestos filings -- Baltimore's shipyards and steel mills exposed thousands of people to asbestos -- the court set up an inactive docket where people who were not sick could wait. Other cities followed suit and large, so-called "consolidated" cases became rarer. Glynn said the courts handle a small number of cases from the inactive docket each month and one or two a year go to trial. In a court filing, Angelos' team argued that the mass trials wrapped up cases in less than a decade that would have taken 35 years under normal conditions. His firm wrote that the courts should return to that model to handle the volume of litigation and use 15 test cases to get verdicts that could be used to speed through others by establishing, for example, how asbestos causes the types of cancer the plaintiffs have. But potential defendants in the cases question whether the Angelos plan would actually see more cases resolved, and argue that it could serve to gum up the works even further. "It will not yield any great results apart from bringing the civil docket in Baltimore to a halt," said Thurman W. Zollicoffer, Jr., a former city solicitor now representing Union Carbide, a potential defendant in some of the cases. For his part, Glynn is clear-eyed about his role: He must decide whether the Angelos plan is better than the system now in place. "You've got to be fair and you've got to be efficient, and balancing those two factors is ultimately my job," he said. ASBESTOS UPDATE: PAR Applies for 10-Ton HazMat Transfer Station --------------------------------------------------------------- Richard Youle of The South Wales Evening Post reports that an asbestos waste transfer station will be built in Gorseinon, if the authorities give it the all clear. Phoenix Asbestos Recovery Ltd (PAR) wants to store up to 10 tons of the material at a unit at Garngoch Industrial Estate, off Gorseinon Road. Based at Swansea Enterprise Park, its clients include airlines, the NHS and housing authorities, and it employs 24 staff. A statement submitted as part of its planning application to Swansea Council said the company removed asbestos from a variety of premises. "Where a job involves the removal of large quantities of asbestos, PAR stores the waste asbestos on site in enclosed, lockable waste containers, prior to transferring the containers to a suitable permitted landfill site," it said. "However, PAR is increasingly being requested to undertake smaller asbestos removal jobs, such as the removal of kitchen floor tiles, asbestos cement roofs and household boilers (the types and quantities of asbestos normally accepted at household waste recycling sites). "For this amount of waste it is not economically and often not physically viable to bring a container to site. Accordingly, PAR is seeking to develop a waste transfer station to store the asbestos waste created by these smaller removal jobs prior to the waste being transported to a suitably permitted landfill site." The statement added: "The proposed development involves the storage of up to 10 tons of asbestos waste prior to its transportation for disposal. "The waste is already suitably wrapped before arrival at site and, while on site, will be stored in sealed containers within the proposed building." It is expected that the site will operate under an Environment Agency permit and will not accept asbestos powders, loose fibers or any form of liquids. Asbestos is a naturally occurring mineral that has been used in building materials to make them rigid and fire resistant. Any building built before 2000 can contain asbestos. Such materials in good condition are safe unless fibers become airborne when the materials are damaged. Working on or near damaged asbestos-containing materials or breathing in high levels of asbestos fibers can cause lung disease. PAR's application is due to be discussed by Gorseinon Town Council on January 2. Swansea councillor David Lewis -- ward member for the area -- has called the application in and requested a site visit. "I would encourage members of the public to let their views be known through the usual channels at the council," said Mr. Lewis. ASBESTOS UPDATE: The Lodge Refurbishments Project Put on Hold ------------------------------------------------------------- Julia Gillard has a history of rotten luck with renovations, and it seems to be continuing, reports Dan Harrison of The Sydney Morning Herald. Ms. Gillard, whose dissatisfaction with the workmanship of Bill, "a big Greek bullshit artist," was revealed through reporting this year of her involvement in the AWU affair, has just learned that long-planned work on her official Canberra residence will be put off until late next year. In a 1995 interview with a senior partner and general manager of the law firm Slater and Gordon, Ms. Gillard detailed her frustration with Bill -- a union organizer from Western Australia whose real name was Vassilis Telikostoglou -- who failed to complete the tiling of the veranda of her Abbottsford house, defied her instructions by installing aluminum sliding windows and taking the initiative of erecting a "truly hideous" low brick fence. It's not known how she reacted to the letter from Special Minister of State Gary Gray advising her that the refurbishment project, which was to start in April, will be put off until the end of 2013, because initial investigations revealed the work was likely to run into "significant technical challenges". "Research and investigations conducted by the architects and the age and condition of the building mean that the refurbishment and conservation works are likely to encounter significant technical challenges," Mr. Gray said in a statement. "Subsequently, it has become apparent that the refurbishment project will take longer to complete than originally anticipated." "It is important to preserve the iconic heritage values of The Lodge for future generations. However, the health and safety of residents, visitors and staff is paramount." "I have decided the sensible and practical thing to do is to defer these renovations," he said. The planned works include replacement of the slate tile roof and 1920s cotton-covered electrical wiring, the removal of potentially hazardous asbestos and the repair of leaky and rusty plumbing. Mr. Gray said he had also written to opposition leader Tony Abbott to advise him of his decision to defer the work. The Lodge has been the primary official home of Prime Ministers since 1927. It is regularly used to host Australian and foreign dignitaries as well as charity functions. ASBESTOS UPDATE: Northfield Depot Group Gets $7,000 Abatement Fund ------------------------------------------------------------------ Kaitlyn Walsh of The Northfield News reports that The Northfield Area Foundation recently awarded a $7,000 grant to the Save the Northfield Depot group to help get rid of asbestos in the depot building, a necessary step to move it and integrate it into a transit hub project. NAF Chair Dale Ness confirmed Monday, Dec. 17, that the group allocated the money to the depot group, which was one grant among $55,000 worth of grants that the foundation gave away this year to local groups. Ness said that the foundation was able to move forward with the grant after the Northfield City Council's Dec. 4 action to pursue the development of the transit hub project at the Q-block site, west of Hwy. 3 between West Second and West Third streets. "We didn't just want the asbestos to be taken off, and then the depot just sitting there," Ness said. "It's really a project we'd love to see happen and support." He said that the foundation gave the depot group some money last year as well. Rob Martin, a member of the Save the Northfield Depot committee, said the NAF gave more than $3,000 to have the land surveyed, which the city sold to the group. He said the cost to remove the asbestos will probably be more than this year's $7,000 grant. "We're really grateful that the Northfield Area Foundation recognized that we had a need and that they were sympathetic to our cause," Martin said. He said the group has an agreement with the city, which stipulates that it raises about $293,000 in three years to contribute to the transit hub project that would relocate the depot and install it at the Q-block site. As co-chair, Martin said he would like Save the Northfield Depot to raise between $100,000 and $150,000 by next summer, which could be accrued through home parties, door-to-door solicitation, various grants and a telethon that the group plans to have in spring 2013. "There are citizens in the community that support our effort for various reason," Martin said. "Many of them are concerned about losing a piece of history. There are a number of people that recognize the need for a transit station or a welcoming point for people coming into the community." A certified asbestos inspector found asbestos in the depot during an inspection last year, according to an online post by the Save the Northfield Depot on its website. The state requires that the asbestos be cleaned up, which a certified professional must complete. ASBESTOS UPDATE: Insurers Face $11BB Loss to Fibro-Related Claims ----------------------------------------------------------------- According to The Mesothelioma & Asbestos Awareness Center, a new report issued by ratings firm A.M. Best indicates that U.S. insurers can expect to pay an additional $11 billion in asbestos- related insurance claims above and beyond the $23 billion already set aside for future expenses. The same report shows that the industry has already paid out some $53 billion for such claims during the last quarter-century. According to a Wall Street Journal article, A.M. Best indicated in their report that the rise in costs can be attributed to the increasing cost of each claim, the success rate of experienced mesothelioma attorneys, and the long latency period of diseases such as malignant mesothelioma. All of this means that "sizable losses are likely to continue for years," according to the study results released recently. Some of the insurers who have seen significant asbestos claims throughout the last few decades include Travelers, Hartford Financial Services Group, Berkshire Hathaway, CNA Financial Group, and Lloyd's of London. Dozens of others have been hit with smaller claims. Many asbestos diseases, including both asbestosis and mesothelioma, can take anywhere from two to five decades to develop and become evident. Hence, asbestos lawsuits are still being filed more than 30 years after the government imposed rules about the use of the toxic material. Therefore, insurers are still paying out on policies they sold as much as 50 years ago, when asbestos was widely used in all sorts of products and in many industries. Mechanics, machinists, insulators, plumbers, electricians, and a wide variety of other tradesmen may have suffered asbestos exposure on the job during those years. A.M. Best analyst Gerard Altonji said: "Given the long latency period between exposure to asbestos and the manifestation of mesothelioma, as well as the very large number of people exposed over a great many years...it is likely that asbestos losses will continue to develop for many years to come." Though the additional $11 billion is not enough to cripple the industry, Altonji and his colleagues add, investors with the various insurance companies involved have reacted negatively when an insurer announces additions to its asbestos reserves. ASBESTOS UPDATE: Staffordshire Council Fined for Health Violations ------------------------------------------------------------------ The Express & Star reports that the Staffordshire County Council has been handed a court bill of GBP15,000 after admitting liability when dangerous asbestos fibers were released into the nursery of a primary school in Cheslyn Hay. Glenthorne Primary School was shut for three months while decontamination took place in 2009. An investigation by the Health and Safety Executive revealed shortcomings in dealing with asbestos both by the council and its contractors, Rugeley-based G Evans (Services) Ltd. The firm was fined GBP8,000 and ordered to pay GBP4,000 costs at Stafford Crown Court. The firm, in Wheelhouse Road, admitted failing to ensure the safety of persons not in its employment and the safety of persons in employment. The council, which admitted failing to ensure the safety of persons not in its employment, was fined GBP10,000 and ordered to pay GBP5,000 costs. Judge Mark Eades heard on Friday, Dec. 14, that the main people at risk from the asbestos were two workers from the firm. Risks to teachers and children in the school at the time were "difficult" to assess. The court heard the exposure was brief and would not lead to any serious lung problems like asbestosis or cancer. It happened in February 2009 during the removal of a long wall cupboard, which had to be sawn in half. The work revealed a foil-lined backing board, which was wrongly identified as non-hazardous insulation material and put in a skip. Mr. Bernard Thorogood, representing the council, said the refurbishment of the nursery was a late addition to the work at the school and the authority accepted responsibility for the failing of a very senior employee. Mr. Stephen Cadwaladr, for the company, said only a small piece of asbestos had been sawn by hand and very few fibers had been released. ASBESTOS UPDATE: Fire Stirs Up Fibro at North Bend Airport ---------------------------------------------------------- Pat Guth for The Mesothelioma Cancer Alliance reports that an early morning fire that occurred on Dec. 4 at the Southwest Oregon Regional Airport in North Bend may have caused the circulation of some airborne asbestos fibers, reports a story in The World. According to the article, in the days before the fire, crews had been removing asbestos materials from the 70-year-old airport hangar but hadn't quite gotten all of it. Hence, when the fire occurred, there was still some asbestos cement on the premises. Authorities believe, however, that crews from the Department of Environmental Quality and Koos Environmental were able to act swiftly enough to avoid any major issues. At this point, neighbors of the airport have nothing to fear, said DEQ Natural Resource Specialist Martin Abts. He noted that clean- up crews were sent in while the ashes were still smoldering and managed to remove 200 bags of asbestos material from the premises. Abts did admit, however, that asbestos fibers may have been released during the fire, when the heat from the flames caused pieces of the cement to break loose and fly away. But he believes that rain and heavy winds would have kept exposure to a minimum, including for firefighters and neighbors of the airport. "In my professional opinion," Abt said, "I'd say their exposure was little to none." It is believed that the fire was caused by the negligence of the demolition crew, who may have been smoking in the hangar or storing equipment there that may have sparked the blaze. Cleaning continues at the site. Firefighters such as those that fought this blaze in North Bend often find themselves in situations where asbestos exposure could potentially be an issue. Properties constructed prior to the mid 1970s -- residential, commercial, and industrial -- may contain a variety of asbestos materials as the mineral was once used in literally thousands of building materials including everything from insulation to paint to shingles and siding. Firefighters should always take the proper precautions when extinguishing fires in locations where asbestos may be present. ASBESTOS UPDATE: Post-Sandy Rebuilders Warned of Hidden Hazards --------------------------------------------------------------- MaryAnn Spoto of The Star-Ledger reports that as residents and business owners start to rebuild after Hurricane Sandy, state and federal officials are trying to get one message out loud and clear: Beware of hidden health hazards. At a forum Monday, Dec. 17, to discuss the health impacts the storm can have on New Jerseyans, the representatives said mold, asbestos and lead paint are of particular concern because of all the do-it-yourselfers who don't know what they're doing. "These are issues that can affect workers, residents that are living in homes and tenants, and also volunteers who are graciously donating their time and their energy to clean up their communities," said Judith Enck, regional administrator for the federal Environmental Protection Agency. "We want to make sure that as the cleanup is occurring that there are not problems with exposure to mold, exposure to lead, exposure to asbestos." Exposure to mold can cause respiratory problems, particularly among those who do not wear the appropriate attire when removing moldy wall board. Enck was one of six panelists who addressed a crowd of about 100 at the Wall Township headquarters of the Local Union 400 of the International Brotherhood of Electrical Workers. The Occupational Safety and Health Administration is starting to fine contractors whose failure to adhere to safety regulations puts workers at risk of health dangers, said Robert Kulick, regional administrator for the federal Occupational Safety and Health Administration.. Kulick said OSHA is enforcing regulations aimed at preventing the four leading causes of fatalities after hurricanes: falling from high elevations, being electrocuted, being struck by objects and being caught between objects, such as heavy equipment. "Right now we are looking for those four hazards throughout the impacted areas of New Jersey, New York and Long Island," Kulick said. "We are intervening and we're removing employees from risk, and when appropriate, we're issuing citations and penalties to employers who are not responsible and not doing what needs to be done to protect their workers. He said there have been 12 worker deaths -- three in New Jersey -- in the New York/New Jersey area. All of the New Jersey cases were workers who were crushed while taking down the remnants of fallen trees, he said. Cecelia Leto, project director for the New Jersey Work Environment Council, said the forum was a chance to get a more coordinated effort from federal and state agencies to get the health and safety information directly to workers. "We have a good reach but we're limited. We can't get to the front lines as good as we should," she said after the forum. Rita Dentino, director of Casa Freehold, a Freehold-based advocacy group for immigrants, told the panelists she's seen many poor residents living in their mold-infested homes. From the flyers found at these homes explaining the health risks associated with storm cleanup, there's evidence word is trickling down, but there still needs to be direct training, Dentino said. "We want workers to be trained," she said. They also caution that airborne mold can cause respiratory problems and that many people are unknowingly using improper safety attire. ASBESTOS UPDATE: Insurers Brace Against Toxic Dust Storm -------------------------------------------------------- Amanda Alix of The Motley Fool reports that this year had been kind to property and casualty insurers, until Sandy blew into town. Governors from the hardest-hit states decided to categorize the storm to maximize benefits to claimants, and Sandy's damages have been estimated to top $20 billion. Now, another threat to insurers' profits has come to light, courtesy of insurance credit rating agency AM Best: increased liability for asbestos-related injury claims. The Wall Street Journal reports that U.S. insurers Berkshire Hathaway, Hartford Financial Group, and Travelers stand to bear the brunt of the estimated asbestos cost increases, while AIG and CNA Financial will probably suffer to a lesser extent. The latter two companies have Warren Buffett to thank for the decreased liability: The great investor bought AIG's asbestos liability last year for $1.65 billion, and CNA's risk for $2 billion in 2010. How much more will insurers have to shell out? AM Best estimates that an extra $11 billion is in the cards. Insurers have paid claims totaling more than $50 billion, with another $23 waiting in the wings. The rating agency noted that bigger and increasingly more successful claims are behind its new estimates. Sandy is shaping up to be the next most expensive storm after Katrina, and most insurance companies have announced the damage to their respective bottom lines. AIG, riding high since its governmental apron strings were finally severed, said that its losses will be around $1.3 billion after taxes, and Travelers announced post-tax losses of $650 million. The Hartford estimates much lower net losses of $230 million, with CNA posting catastrophe losses of $18 million for Q3, after taxes. Things could have been a lot worse, especially since the governors of New York, New Jersey, and Connecticut declared Sandy a tropical storm, rather than a hurricane -- opening the door to many more claims than if the latter classification had stuck. Though these two issues represent a double whammy for the P&I insurance industry, it is certainly survivable. As far as Sandy goes, the insurers had nice fat bank accounts from recent premium increases, and the storm only gives the industry more ammunition to raise them even more next year. As unsettling as the ramped-up asbestos claim costs look, they will be spread out over several years. Both AIG and CNA are in the catbird seat here, while Buffett's bet that claim expenses wouldn't rise hasn't paid off. Still, the Oracle had the use of those billions with which to make other investments, and this extra hit is not likely to hurt his empire. As for the others, their stock price may take a dip for a while, presenting a nice opportunity for savvy investors who know that this, too, shall pass. ASBESTOS UPDATE: AM Best Expects Insurance Losses to Top $85-Bil. ----------------------------------------------------------------- Canadian Underwriter - Daily News reports A.M. Best Company, Inc., recently released a revised estimate of $85 billion, net of reinsurance, in losses due to third-party liability asbestos claims to the United States property and casualty insurance industry. Annual losses for both asbestos and environmental is now $127 billion, the Oldwick, N.J. credit rating agency stated in a special report released Dec. 10. All figures are in U.S. currency. The "net ultimate" asbestos losses for the U.S. property and casualty insurance industry is now $10 billion more than the previous estimate, A.M. Best says. "The increase in the asbestos estimate reflects the fact that the p&c industry continues to incur approximately $2.0 billion in losses per year while paying out $2.5 billion," A.M. Best stated in the report, released Dec. 10. "With no end to these losses in sight, and given that total funding for insurers' asbestos losses now has reached $74 billion, it is clear that the asbestos problem will persist for many years to come." Those losses are mainly third-party liability claims, said Gerard Altonji, assistant vice president for property casualty at A.M. Best. In an e-mail to Canadian Underwriter, he wrote that these claims came from people who became sick sued corporations, such as asbestos producers and manufacturers of products such as brake linings and boiler linings. He added the statistics in A.M. Best's report do not include workers compensation claims, nor do they include Canadian statistics. According to Health Canada's website, asbestos fibers, when inhaled, can cause asbestosis, which is a scarring of the lungs. It can also cause lung cancer, cancer of the larynx and ovarian cancer. Another major hazard is mesothelioma. According to the website of Mount Pleasant, S.C. law firm Motley Rice, which has represented asbestos claimants, mesothelioma is a cancer that affects the mesothelial cells that line the lung, chest cavity, abdominal cavity, heart cavity and the outer surface of most internal organs. A.M. Best says the average claims for mesothelioma "appear to be increasing." Although insurance asbestos losses dropped from $8 billion in 2002 to a little more than $1 billion in 2008, there has been a "focus on obtaining higher judgements for the more serious cases involving mesothelioma," A.M. Best said. Annual losses for both asbestos and environmental claims dropped 30% in 2011 after increasing 50% each in 2009 and 2010, A.M. Best said. However, it attributed the drop in 2011 to American International Group Inc. (AIG)'s loss in 2010, when it increased its asbestos provisions by nearly $1.4 billion. "One of the main problems with asbestos now comes from sprayed or 'friable' (easily broken up) asbestos used in buildings until the 1970s," Health Canada states on its website. "Construction workers, tradespeople and other building maintenance workers may be exposed to very high concentrations of asbestos fibers during renovations and repairs to older buildings. The environment and work methods of these occupations are more difficult to control than fixed workplaces." Health Canada says asbestos has been used in various construction products including insulation board, floor and ceiling tiles and drywall joint cement. Workers affected by asbestos come from a variety of occupations, according to Motley Rice, including aerospace, refinery, automobile manufacturing, mechanics, cement plant workers, custodians, protective clothing and glove makers and warehouse workers. Construction trades affected by asbestos include boilermakers, insulators, plumbers, steamfitters, plasterers, tile and linoleum installers, carpenters and welders. ASBESTOS UPDATE: $20 Million Camp Roberts Demolition Plan Begins ---------------------------------------------------------------- Tim Povtak of The Mesothelioma Center reports that there was so much asbestos, lead-based paint and other contaminants throughout the 658 abandoned buildings at Camp Roberts that the U.S. Army had to create its own on-site hazardous waste landfill before the demolition could begin. That's a scary thought for the hundreds of thousands of military veterans who once lived and worked there. They marked the end of an era earlier this month at Camp Roberts, the largest military training facility in California, when a $20 million demolition project began with considerable fanfare. Many of the structures were abandoned long ago, and fell into disrepair, becoming an eyesore along Highway 101 near San Miguel, and to anyone venturing onto the base. They were barracks, chapels, administrative offices, supply huts, warehouses and mess halls that were built in the early 1940s, a time when the American military was falling in love with everything asbestos, which served as a wonderfully versatile insulator and fire retardant. It also was abundant and economical. Old Soldiers Exposed to Asbestos Soldiers from the 1940s, '50, '60s, '70s and early '80s were housed and trained there, unknowingly putting themselves at risk for future health problems. Asbestos is the cause of mesothelioma, a rare cancer that has a latency period of up to 60 years before showing obvious symptoms. Most have been empty for 30 years, waiting for the slow-moving, military chain of command to finalize the orders and receive the proper environmental approval to start the demolition. "It's kind of different to think of all the people who went through here," retired Col. John Scully told the San Luis Obispo Tribune. "There are a lot of memories." Camp Roberts, which still was used for troops before deployment to Iraq and Afghanistan in more recent years, has been modernized, and is operated today by the California National Guard. 50,000 Called Camp Roberts Home In its heyday, Camp Roberts was home to 50,000 soldiers preparing for war. Much of it was built in 1940 and 1941, in anticipation of America being pulled into World War II. But as the decades progressed and the number of U.S. military troops decreased, buildings were no longer used. Many fell into disrepair. Many today are dilapidated shells of once bustling hubs of activity. Insides have been gutted. Outsides are weathered and worn. Entire blocks are closed off to everyone. There were so many contaminants in the older construction that the military discovered it would be less expensive to build a hazardous waste landfill than to try and haul away everything. It exemplified the size of the problem that came with all the good that Camp Roberts did. This base was not alone. Asbestos was among the top contaminants at 32 Army installations in the United States before they were close during the '90s, costing the government an estimated $1 billion in cleanup. "There's a lot of history here," Brig. General Keith Jones told the Tribune. "An old facility like this touched a lot of souls." Veterans Hit Hard by Mesothelioma Through the Korean and Vietnam eras, the older side of Camp Roberts remained a busy place. It was a time when Americans were constructing houses and commercial buildings filled with asbestos. Military personnel from those eras have been hit especially hard by asbestos-related illnesses. An estimated 30 percent of mesothelioma cases diagnosed in America annually are veterans. Older military bases throughout the country were notorious for high concentrations of asbestos because military leaders believed at the time it was the right thing to do, unaware of the long-term dangers that were lurking. In California, it's all coming down now, requiring extra care in the demolition process to avoid spreading the contaminants. ASBESTOS UPDATE: Guernsey's Princess Elizabeth Hospital Abated -------------------------------------------------------------- BBC News Guernsey reports that asbestos has been removed from Guernsey's Princess Elizabeth Hospital after being discovered in a cupboard. A statement from the Health Department said the brown asbestos, known as Amosite, had been removed on Monday, Dec. 17. It said a tiny amount of the material had been found in a corridor next to the hospital's operating theatres. The statement said: "At no time have any operating theatres been closed and no staff or patients have been put at risk." The department said the removal was being done in line with its asbestos management program and the Health and Safety Executive (HSE) had been informed. Asbestos was previously found and removed from the hospital's plant rooms and service ducts ahead of a refurbishment in 2010. ASBESTOS UPDATE: Fibro Removal at Webster Village Hall Ongoing -------------------------------------------------------------- Justin Murphy and Steve Orr of The Democrat and Chronicle report that asbestos abatement began Tuesday, Dec. 18, at the Webster Village Hall, which was closed to the public and employees after a routine carpet replacement dislodged tiles containing the dangerous fiber. Village workers were pulling up carpet near the front of the building Dec. 5 when large pieces of tile started coming up with it, Mayor Peter Elder said Tuesday. Apparently the adhesive binding the carpet to the tile was stronger than the adhesive binding the tile to the floor. The village knew ahead of time it was possible there would be asbestos in the tiles and had consulted with the U.S. Environmental Protection Agency, Elder said, but believed the carpet change would not disturb it. Once it did, the workers stopped and, after a call to EPA, were instructed to stop work, Elder said. Village employees left the building within 20 minutes, he said. Village government workers moved to the back of the building, which remains open. The village is using about $25,000 from its reserve fund for a full asbestos abatement in the front of the building, ripping up the existing tiles and carpet and replacing them. That clean-up started Tuesday, Dec. 18, after the Village Board reviewed abatement bids. Air quality tests have come back clean, Elder said. The village offered the employees in the building at the time health screenings but none took the offer, he said. Several calls to the state Department of Labor, which oversees asbestos abatement in New York and also provides health and safety services to municipal employees, were not returned Tuesday afternoon. A call to the EPA also was not returned. Inhalation of a sufficient quantity of asbestos fibers can impair respiratory function and cause lung cancer and other serious lung diseases. Removal of building material containing asbestos, which was widely used as an insulator and fire retardant, is normally done by licensed contractors. Elder said he was confident after talking with EPA officials that the village would not face any fines or sanctions for disturbing the asbestos. "What we've been told is it's one of the lowest grade mitigations we could do," he said. "Once we realized there even could be an issue, we stopped." The abatement spending is in addition to the $17,000 originally budgeted for the carpet replacement. Village government will move back into the front part of the building before the end of the month, he said. ASBESTOS UPDATE: Pleural Mesothelioma Kills Ex-Little Lever Worker ------------------------------------------------------------------ A man died from a cancer associated with working with asbestos, an inquest heard. John Devine, who died in September, was employed by a company where asbestos was used from 1954 to 1980. The Bolton inquest was told that in July Mr. Devine, aged 79, had written a statement -- read out in court -- detailing his working life in Little Lever where he was exposed to asbestos. He said that although dust masks were provided for staff, they were not warned of the dangers of breathing asbestos dust and wearing the masks was not a requirement. In May, Mr. Devine, of Bardsley Close, Harwood, was examined by consultant chest physician Dr. Kamal Ibrahim and, following tests, mesothelioma was diagnosed -- a cancer affecting the lungs and associated with asbestos exposure. Although Mr. Devine started chemotherapy, it had to be discontinued when he became too unwell for the treatment and he died on September 21 at Bolton Hospice. Pathologist Dr. Patrick Waugh confirmed that Mr. Devine was suffering from heart disease, but had died as a result of malignant pleural mesothelioma and confirmed this would be "undoubtedly" as a result of his expose to asbestos during his working life. Deputy coroner Alan Walsh said Mr. Devine had died as a result of an industrial disease. ASBESTOS UPDATE: Fibro Relocates Paterson Recreation Division ------------------------------------------------------------- Joe Malinconico of The Alternative Press reports that the Paterson, N.J., recreation division has moved to a building in East Side Park because renovations on its Ellison Street offices resulted in an asbestos problem, according to Business Administrator Charles Thomas. City employees renovating the offices at 133 Ellison noticed the asbestos dust during the work, Thomas said. For their protection, the recreation staff members were relocated to offices in the park, he said. Also relocated was the city's Neighborhood Assistance Office, which moved back to its old location next door at 125 Ellison. Thomas said the asbestos would result in a "minimal" increase in the cost of the renovations. He said he expected the eight employees affected by the work would be able to return to 133 Ellison after Christmas Day. ASBESTOS UPDATE: Goulburn Mulwaree to Take in Yass Valley's Fibro ----------------------------------------------------------------- ABC News reports that asbestos could be disposed of in a Goulburn tip following a request from a neighboring council. The Yass Valley Council has asked Goulburn Mulwaree to let it dump the toxic material in a waste facility because it does not hold the necessary license. The asbestos has been removed from a fire damaged building. The Mayor Geoff Kettle says the council has agreed to accept the waste. "You try to when you can look after your neighbors and help your neighbors because you never know when you might be in the same situation but we also realize that there would be an impact on our tip," he said. "So we negotiated on a commercial basis to take that waste from Yass and we're still waiting to find out whether they're going to bring it to us." The Goulburn community is being assured there is no risk to public safety. Councillor Kettle says all necessary precautions will be taken. "Look I would suggest no and that would be up to Yass Valley Council to make sure it is transported appropriately. "Once it gets to our landfill our employees are fully versed and fully qualified to handle that sort of waste. "They know the safety aspects of having to handle it." ASBESTOS UPDATE: Federal Paper Mill, 30 Others Face Lawsuit ----------------------------------------------------------- Kelly Holleran of The Madison / St. Clair Record reports that George Norris filed an asbestos lawsuit in St. Clair County Circuit Court on Nov. 20 against 31 defendant corporations. Norris will be represented by Randy L. Gori and Barry Julian of Gori, Julian and Associates in Edwardsville. In his complaint, Norris alleges the defendant companies caused him to develop lung cancer after his exposure to asbestos- containing products throughout his career. Norris lives in North Carolina. Norris worked as a welder at Federal Paper Mill from 1956 until 1988, according to the complaint. The defendants should have known of the harmful effects of asbestos, but failed to exercise reasonable care and caution for the plaintiff's safety, the suit states. As a result of his asbestos-related disease, Norris incurred medical costs and suffered great physical pain and mental anguish, the complaint says. In addition, he became prevented from pursuing his normal course of employment and, as a result, lost large sums of money that would have accrued to him, he claims. In his complaint, Norris is seeking a judgment of more than $50,000, economic damages of more than $150,000, compensatory damages of more than $150,000, punitive and exemplary damages of more than $100,000 and punitive damages in an amount sufficient to punish various defendants for their wrongdoing. St. Clair County Circuit Court case number: 12-L-626. ASBESTOS UPDATE: 64 Pembrokeshire Schools Contaminated ------------------------------------------------------ The Western Telegraph News reports that 64 of Pembrokeshire's 70 schools contain some asbestos -- but Pembrokeshire County Council will not currently say which schools they are. The figure was revealed following a question from county councillor David Bryan, prompted by the recent closure of Cwmcarn High School, in Caerphilly, due to asbestos. Pembrokeshire County Council's cabinet member for education, Huw George, told councillors at the meeting of full council last Thursday, Dec. 13, that the Health and Safety Executive recommended that asbestos products should be left in place, providing they were in good condition, and should be subsequently managed. He said that the schools' premises managers had a duty to ensure that all staff and visitors to the school were given information regarding the asbestos management procedure. He added that the council had robust systems in place for the management and regulation of asbestos containing material in all Pembrokeshire schools. Cllr George said he was disinclined to name the schools containing asbestos. "I'm concerned about scaremongering", he said. "Im reluctant to go public on which schools. Levels of asbestos are different from school to school". Cllr George said he would go back to the director of education and social services and discuss whether the schools should be named. ASBESTOS UPDATE: Former Shipyard Worker Wins ARD Compensation ------------------------------------------------------------- The Sunderland Echo reports that a former shipyard worker living in the shadow of lung cancer after exposure to asbestos has won compensation. Robert Kemp, 75, from Sunderland was exposed to the deadly chemical while working as an apprentice and then shipwright for two Wear yards from the 1950s to 1980s. When he began to suffer from a cough and chest pain in August 2010 he was told by doctors there was a 90 percent chance he had lung cancer. A biopsy ruled out cancer but Mr. Kemp was diagnosed with diffuse pleural thickening, which leaves the former GMB union branch secretary breathless and unable to walk long distances or carry out work at home. "This has had a huge impact on my life," he said. "It is very frustrating that I cannot do the things I used to be able to do. I am terrified that I will get asbestos cancer in the future and this fear lives with me all the time." Mr. Kemp had previously been diagnosed with pleural plaques and through the GMB, he approached Thompsons Solicitors for advice, only to find the law had changed to end compensation for the condition. He approached the firm again after being told he probably had cancer, and Thompsons was successful in securing compensation from two of his former employers' insurers. The provisional settlement allows him to make a further claim for compensation if his condition worsens in the future due to asbestos-related disease. ASBESTOS UPDATE: St. Albans' Odyssey Cinema's Abatement Ongoing --------------------------------------------------------------- The Herts Advertiser reports that dangerous asbestos is being stripped out of the Odyssey Cinema in St. Albans city centre after the fiber was discovered throughout the old building. But neighbors of the former Odeon cinema in London Road are still concerned about whether they have already been exposed to harmful dust after volunteers cleared rubble from the art deco building earlier this year. According to the Health and Safety Executive (HSE), which served a notice on the cinema to stop work immediately, asbestos is the single greatest cause of work-related deaths in the UK. St. Albans based Borras Construction, the Odyssey's main contractor during its rebuild, has confirmed that asbestos was discovered in a recent survey of the derelict building. It has to be removed before the GBP1.6 million restoration project can resume. Working on or near damaged asbestos-containing materials or breathing in high levels of the product's fibers can increase a person's chances of getting an asbestos-related disease, including mesothelioma. Adam Bowden, managing director of Borras, said that asbestos removal began on Monday, Dec. 17. The clearance is likely to take up to nine weeks and will be carried out by specialists under controlled conditions, in accordance with HSE guidelines. Adam explained that the more dangerous brown asbestos, along with white asbestos, had been found during the survey - but none was found on the cinema's exterior. The survey showed the fiber was present in insulation and noise reduction panels, floor tiles, fire retardation material and in the boiler room. Products containing the fiber will be double-wrapped inside the building, put in a sealed skip and then disposed of at a licensed landfill site that specializes in handling dangerous material. Adam dismissed neighbors' concerns about exposure to asbestos during decontamination work, saying, "this will not happen." However Annie Robb, who lives near the cinema, is still worried about whether she was exposed to dust when 30 volunteers helped clear the Odyssey's interior in April following demolition work. That work was carried out before the asbestos survey -- which Annie received an anonymous tip about. Annie said she was, "pretty angry that they've been clearing out and leaving debris all over our road from a contaminated site. Surely this should have been one of the first things to have checked, particularly as they have let the public in so many times." An HSE spokesman said the executive had identified the "presence of potentially hazardous asbestos containing material on Nov. 20, 2012. "A prohibition notice was immediately served to stop any further refurbishment activity until the material was safely removed. "An HSE investigation is ongoing into the refurbishment work so it would be inappropriate to comment on whether any further enforcement action will be taken." A spokesman for the Odyssey maintained that asbestos was "never within reach of visitors, unless they dug out the walls and gave them a lick." He added that the restoration team had "strived" to ensure the safety of neighbors and on-site personnel. The cinema is still on schedule to open in early 2014. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Frederick, Maryland USA. Noemi Irene A. Adala, Joy A. Agravante, Ivy B. Magdadaro, Psyche A. Castillon, Julie Anne L. Toledo, Christopher Patalinghug, Frauline Abangan and Peter A. Chapman, Editors. Copyright 2012. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $575 for six months delivered via e-mail. 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