/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/130215.mbx C L A S S A C T I O N R E P O R T E R Friday, February 15, 2013, Vol. 15, No. 33 Headlines AMERICAN EXPRESS: Wants Sup. Ct. to Overturn 2nd Cir. Ruling ASPEN UNIVERSITY: Faces Class Action in New York Court BECTON DICKINSON: Final Hearing on $45MM Suit Deal Set for March BOHNING CO: Recalls 150 Middleton Siege Crossbows CELERA CORP: Mandatory Class Members May Be Given Opt-Out Rights CHINESE DRYWALL: Four Additional Class Action Settlements Reached CONSOL ENERGY: Appeal From Dismissal of "Comer" II Suit Pending CONSOL ENERGY: Discovery Currently Proceeding in "Hale" Suit CONSOL ENERGY: Discovery in "Addison" Suit Still Proceeding CONSOL ENERGY: "Hall" Suit Remains Pending in Pennsylvania CONSOL ENERGY: Trial in CNX Gas Shareholders Suit on March 11 CRST VAN: Settles Sexual Harassment Class Action for $50,000 DAIICHI SANKYO: Sanford Heisler Files $100-Million Class Action DEWEY & LEBOEUF: Loses Bid to Dismiss WARN Act Class Action FORD: Faces Suit Over False Claims on 2013 Escape SE GOOGLE INC: Authors Guild Wants Class Action Cert. Upheld NEW YORK: "Stop and Frisk Suit" Obtains Class-Action Status NEWS CORP: Awaits Final Okay of Atty. Generals' Suit Settlement NEWS CORP: Canadian Consumer Suits vs. HarperCollins Pending NEWS CORP: Bid to Dismiss "Wilder" Securities Suit Pending NEWS CORP: Court Reserves Ruling on Bid to Junk 3rd Amended Suit NEWS CORP: HarperCollins Defends Antitrust MDL in New York NEWS CORP: Hearing on "Forsta Ap-Fonden" Suit Deal on April 26 NORTH SHORE-LONG: Faces Identity Theft Class Action Suit OCLARO INC: Discovery in Securities Class Suit Commences OCLARO INC: Opnext Merger-Related Class Action Suits Resolved PIEDMONT OFFICE: Final Hearing on Settlements Set for 2nd Quarter SAMSONITE LLC: Recalls Dual-Wattage Travel Converter Kits SHEILA MORRISON: Settles Class Action Over Alleged Abuses SUBURBAN PROPANE: Received Prelim. OK of Commercial Class Suit TYSON FOODS: Court Won't Dismiss 3 Plaintiffs in Workers' Suit WAGGIN' TRAIN: Sued for Selling Contaminated Dog Treats WILMINGTON TRUST: Faces Class Action Over Loan Practices Asbestos Litigation ASBESTOS UPDATE: Architectural Firm Pleads Guilty to Safety Breach ASBESTOS UPDATE: Guernsey HSE Aims to Improve Fibro Policy ASBESTOS UPDATE: HSL Downplays Cwmcarn High School Fibro Risk ASBESTOS UPDATE: Lincolnshire Council Urged for Hazmat Amenities ASBESTOS UPDATE: Lordswood Locals Oppose Planned Hazmat Depot ASBESTOS UPDATE: Demolition Firm's 1970s Operation Blamed for Meso ASBESTOS UPDATE: Birmingham Builder Fined for Illegal Abatement ASBESTOS UPDATE: QWHS Checks Abatement Work at Gladstone Cinema ASBESTOS UPDATE: Joint Venture Secures GBP311,643 For ARD Victims ASBESTOS UPDATE: New Fibro Test Method in Soil Approved ASBESTOS UPDATE: W.R. Grace Asbestos Liabilities Drop 2012 Profits ASBESTOS UPDATE: CSX Transportation Moves to Triple Jury Award ASBESTOS UPDATE: Treatment Study Links Fibro, Iron, Mesothelioma ASBESTOS UPDATE: Mud Engineer With COPD Recalls Exposure to Flosal ASBESTOS UPDATE: Fibro Closes Thunder Bay School's Academic Wing ASBESTOS UPDATE: Procedural Changes Cut Down Mass Torts in Philly ASBESTOS UPDATE: CA Ruling Jeopardizes Travelers' $420.4 MM Award ASBESTOS UPDATE: Bidding Process for St. Joe's Abatement Underway ASBESTOS UPDATE: Woodsreef's Mine Road Dispute Nears Decision ASBESTOS UPDATE: LCAVC Reaches Out to Non-Smokers Exposed to Fibro ASBESTOS UPDATE: Fibro Found in Christchurch's Isaac Theatre Royal ASBESTOS UPDATE: Fly-Tipping Trio Given Suspended Jail Sentences ASBESTOS UPDATE: Hopeman Brothers Faces Breach of Contract Lawsuit ASBESTOS UPDATE: Victim Exposed to 2nd-Hand Fibro Awarded $1.1 MM ASBESTOS UPDATE: Specialty Products' Fibro Debt Tops $1.1 Billion ASBESTOS UPDATE: Risk Study on Libby Abatement Out In 2014 ASBESTOS UPDATE: Consultant Maintains Fibro Alert at Cwmcarn High ASBESTOS UPDATE: Another Hazmat Dump Found in Clarence Valley ASBESTOS UPDATE: La Collette Hazmat Stockpile Set for France ASBESTOS UPDATE: ARD, Mesothelioma Issues in South Africa & China ASBESTOS UPDATE: Payout Cap Reduces $3MM Verdict to $0.98MM ASBESTOS UPDATE: Burglars Steal Pneumatic Fibro Vacuum in Carlisle ASBESTOS UPDATE: Israeli Ministry Fines IDF Over Fibro Outbreak ASBESTOS UPDATE: Building Unions Campaign for New Anti-Fibro Laws ASBESTOS UPDATE: HSE Slaps GBP4,000 Fine on Fibro Law Violator ASBESTOS UPDATE: Cal State Releases 2013 Asbestos Building Report ASBESTOS UPDATE: Mack Trucks, 60 Others Face Exposure Lawsuit ASBESTOS UPDATE: US Initiative for Lung Cancer Victims Launched ASBESTOS UPDATE: CBS Corp. Moves Fibro Lawsuit to Federal Court ASBESTOS UPDATE: Court Flips Order Denying Boeing's Dismissal Bid ASBESTOS UPDATE: Pa. Ct. Denies GE's Summary Judgment Motion ASBESTOS UPDATE: 20 Cases Remanded as Pretrial in MDL Concludes ASBESTOS UPDATE: Court Won't Appoint Receiver for Krafft-Murphy ASBESTOS UPDATE: Graham Corp. Continues to Defend Exposure Suits ASBESTOS UPDATE: Rockwell Automation Still Defends Exposure Suits ASBESTOS UPDATE: Union Pacific Had $139MM Liability at Dec. 31 ASBESTOS UPDATE: Cabot Corp. Still Exposed to AO-Related Claims ASBESTOS UPDATE: Invensys Still Must Indemnify Rexnord ASBESTOS UPDATE: Hamilton Defending Rexnord in 200 Pending Suits ASBESTOS UPDATE: Rexnord Units Still Facing Exposure Suits ********* AMERICAN EXPRESS: Wants Sup. Ct. to Overturn 2nd Cir. Ruling ------------------------------------------------------------ Marcia Coyle, writing for The National Law Journal, reports that two terms ago, the U.S. Supreme Court dealt a near-death blow to consumer class actions in an arbitration ruling. This term, the justices may finish the job. Consumer advocacy organizations, such as Public Citizen and Public Justice, as well as AARP and even a number of arbitration law scholars and arbitrators, are facing off against the U.S. Chamber of Commerce, the American Bankers Association, Financial Roundtable and others in American Express Co. v. Italian Colors Restaurant. American Express is asking the justices to overturn a ruling by the U.S. Court of Appeals for the Second Circuit. That appellate court had held that the company's arbitration agreement, which includes a class action waiver, was unenforceable because it would prevent merchants suing American Express from effectively vindicating their federal statutory rights -- here, rights under the antitrust laws. Representing American Express, Michael Kellogg -- mkellogg@khhte.com -- of Washington's Kellogg, Huber, Hansen, Todd, Evans & Figel, contends that the Supreme Court has never endorsed the "effective vindication of federal statutory rights" as a limit on the Federal Arbitration Act's command that arbitration agreements be enforced according to their terms. But, citing a 1985 Supreme Court ruling, Paul Clement of D.C.'s Bancroft, counsel to the merchants, argues that the court, for more than 25 years, has recognized that federal statutory rights may be resolved through arbitration only "so long as the prospective litigant effectively may vindicate its statutory cause of action in the arbitral forum." Although the American Express challenge, which will be argued Feb. 27, is a business-to-business arbitration case, it has huge stakes not just for antitrust law but for labor and employment law as well, both sides agree. The United States has filed an amicus brief supporting the merchants. "American Express is going for a rule that in every case, the class action ban is always enforceable," said F. Paul Bland of Public Justice, who filed an amicus brief supporting the merchants on behalf of his own organization, AARP and the American Association for Justice. However, referring to the court's ruling two terms ago in AT&T Mobility v. Concepcion, Andrew Pincus -- apincus@mayerbrown.com -- of Mayer Brown, amicus counsel to the Chamber of Commerce and the Business Roundtable, countered that a ruling for American Express, "is a ruling that follows almost inevitably from Concepcion. I think to some extent the Rubicon has been crossed." American Express' standard card acceptance agreement contains a mandatory arbitration clause. It also states that "there shall be no right or authority for any Claims to be arbitrated on a class action basis," and that "Claims may not be joined or consolidated" with claims brought by other merchants. The prevailing party is not permitted to shift its costs to the other party, and it contains a confidentiality provision that prohibits the disclosure of information obtained in an arbitration proceeding. A number of small business merchants brought a class action in federal court alleging that American Express was violating Section 1 of the Sherman Act by engaging in an unlawful tying arrangement. The credit card giant, they alleged, used its market power in corporate and personal charge cards to compel them to accept the company's mass-market credit and debit cards at higher merchant- fee rates than charged by other companies. The district court granted American Express' motion to compel arbitration, but the Second Circuit reversed, holding that the merchants "would incur prohibitive costs if compelled to arbitrate under the class action waiver." The merchants had submitted a declaration from an economist who estimated that the cost of the expert analysis and testimony necessary to prove their antitrust claims would be "at least several hundred thousand dollars, and might exceed $1 million." The maximum damages any plaintiff could expect was $12,850, or $38,549 when trebled, according to the expert. American Express did not dispute that evidence, said the appellate court, concluding that the class action waiver in the agreement could not be enforced because it would grant American Express "de facto immunity" from antitrust liability by removing the merchants' "only reasonably feasible means of recovery." American Express petitioned the Supreme Court which, at the time, was considering another arbitration case, Stolt-Nielsen S.A. v. AnimalFeeds International Corp. In that case, the justices held in 2010 that under the Federal Arbitration Act (FAA), a party could not be compelled to submit to class arbitration unless there was a contractual basis to conclude the party had agreed to it. The justices vacated the Second Circuit's American Express decision and remanded it consideration in light of Stolt-Nielsen. On remand, the Second Circuit stood by its initial ruling. In 2011, the justices ruled in AT&T Mobility v. Concepcion, holding that the FAA pre-empted a California state-law rule barring most class action waivers in consumer contracts. The Second Circuit, sua sponte, reconsidered its American Express decision in light of Concepcion and again reversed the district court. Concepcion dealt with state-law contracts and FAA preemption, said the appellate court, and did not reverse the justices' 2000 ruling in Green Tree Financial Corp. v. Randolph that an arbitration agreement should not be enforced when it effectively forecloses a plaintiff from asserting federal statutory rights. In the Supreme Court, American Express' Kellogg urges a clean, straightforward rule: Absent an express limitation by Congress on the arbitration of a federal statutory claim, there is no basis for courts to refuse to enforce the FAA's command that arbitration agreements be enforced according to their terms. He accuses the Second Circuit of engrafting onto the FAA "a pro- class-action public policy" with no basis in that law. Relying on Stolt-Nielsen and Concepcion, he writes, "Twice in its last three terms, this Court has made clear that [the FAA mandate] requires courts to enforce arbitration agreements even when they call for bilateral rather than classwide proceedings." "If plaintiffs were to win, the problem is every plaintiff or plaintiffs' lawyer is going to make the same claim," said Mayer Brown's Mr. Pincus. "Every time someone moves to enforce the clause, there's going to be at a minimum a trial over whether claims can be effectively vindicated. The problem is that can be a very broad and expensive process. Once that condition gets imposed, that's a situation where arbitration is undermined. If you're telling me, a business, that I'm going to have huge litigation costs, then I won't have arbitration." Mr. Clement, the merchants' counsel, argues that nothing in Concepcion or Stolt-Nielsen overrides the effective vindication rule, the analysis in Green Tree Financial. The rule, he writes, is narrow and puts a heavy burden on the party claiming it. "This is the rare case in which the plaintiffs have carried that burden," he argues. "This is thus truly a case in which the alternative to litigation is not arbitration, but nothing." His clients, he writes, have not demanded class arbitration or class litigation, simply a forum to vindicate their antitrust claims. "If Petitioners want to adopt a better arbitration agreement that allows cost-shifting for prevailing parties, such as the one employed by AT&T in Concepcion or by a number of other large companies, Respondents stand ready to vindicate their federal antitrust claims through bilateral arbitration," adds Clement. "Indeed, such agreements, which guarantee both the efficiencies of the arbitral process and the effective vindication of rights, are becoming more common." Undermining arbitration? Thomas Stipanowich of Pepperdine University joined an amicus brief supporting the merchants on behalf of professional arbitrators and arbitration scholars. Mr. Stipanowich, an arbitrator and mediator, said, "The practical result of overturning the Second Circuit decision would be to create a broad safe harbor for class action waivers coupled with an agreement to arbitrate. I am neutral on the subject of class action arbitration. My concern is about the broad enforcement of class action waivers just because they happen to be in the context of an arbitration clause." He and his amicus colleagues worry that a ruling for American Express that eliminates the effective vindication rule would erode public confidence in the legitimacy of arbitration and trigger a congressional reaction that would place more restrictions on arbitration. Mr. Stipanowich said what is needed is a policy discussion about the kind of class action framework needed under the law, a discussion apart from arbitration agreements. The Supreme Court's decisions emphasize that arbitration is speedy and economical and it warns of consequences to business if class waivers are not enforced, he said. "In the business arena today, one of the problems is arbitration is not that way," he said. "Sometimes people want arbitration to look like litigation, but that's because they have the wherewithal to do so. I'm a person who likes arbitration because of the ability to choose processes, to fit a process to the needs of a party. What's different here is it's really one party choosing the system. We can't close our eyes and pretend it's all the same." The pro-business public interest law firm, the New England Legal Foundation, and other amici supporting American Express, argue that nothing prevents similarly situated parties from pooling their resources to hire a lawyer, fund expert fees and share others costs while proving their claims in individual arbitrations. "They could do that easier in this case -- you have a group of plaintiffs organized already," agreed Mr. Pincus. "More generally, through the Internet and social media that's something that could be replicated broadly." Mr. Stipanowich called that a novel and ultimately cumbersome approach. Public Justice's Bland said if American Express wins, there will be no per se defense left against a class action ban in an arbitration agreement. "If a company drafts a clause that bans class actions and cleanly gets an arbitration agreement formed -- and an American Express ruling goes as far as the company is asking -- you will see a whole bunch of statutory rights wiped out," he predicted. ASPEN UNIVERSITY: Faces Class Action in New York Court ------------------------------------------------------ Courthouse News Service reports that directors of Aspen University filed false statements with the Securities and Exchange Commission and accrediting officials and hurt shareholders in other ways, a class action claims in New York County Supreme Court. BECTON DICKINSON: Final Hearing on $45MM Suit Deal Set for March ---------------------------------------------------------------- A March 2013 hearing is scheduled for the final approval of a $45 million class action settlement entered into by Becton, Dickinson and Company with "Distributor Plaintiffs," according to the Company's February 7, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended December 31, 2012. The Company is named as a defendant in these purported class action lawsuits brought on behalf of distributors and other entities that purchase the Company's products (the "Distributor Plaintiffs"), alleging that the Company violated federal antitrust laws, resulting in the charging of higher prices for the Company's products to the plaintiffs and other purported class members: Case Court Date Filed ---- ----- ---------- Louisiana Wholesale Drug U.S. Dist. Court March 25, 2005 Company, Inc., et al. vs. Newark, NJ Becton Dickinson and Co. SAJ Distributors, Inc. U.S. Dist. Court Sept. 6, 2005 et al. vs. Becton Eastern Dist. of Dickinson & Co. Pennsylvania Dik Drug Company, et al. U.S. Dist. Court Sept. 12, 2005 vs. Becton, Dickinson & Co. Newark, NJ American Sales Company, U.S. Dist. Court Oct. 3, 2005 Inc. et al. vs. Becton, Eastern Dist. of Dickinson & Co. Pennsylvania Park Surgical Co. Inc. U.S. Dist. Court Oct. 26, 2005 et al. vs. Becton, Eastern Dist. of Dickinson and Company Pennsylvania These actions have been consolidated under the caption "In re Hypodermic Products Antitrust Litigation." The Company is also named as a defendant in these purported class action lawsuits brought on behalf of purchasers of the Company's products, such as hospitals (the "Hospital Plaintiffs"), alleging that the Company violated federal and state antitrust laws, resulting in the charging of higher prices for the Company's products to the plaintiffs and other purported class members: Case Court Date Filed ---- ----- ---------- Jabo's Pharmacy, Inc., U.S. Dist. Court June 3, 2005 et al. v. Becton Greenville, Tenn. Dickinson & Company Drug Mart Tallman Inc. U.S. Dist. Court Jan. 17, 2006 et al. v. Becton Newark, New Jersey Dickinson and Company Medstar v. Becton U.S. Dist. Court May 18, 2006 Dickinson Newark, New Jersey The Hebrew Home for U.S. Dist. Court March 28, 2007 the Aged at Riverdale Southern Dist. vs. Becton Dickinson of New York and Company The plaintiffs in each of the antitrust class action lawsuits seek monetary damages. All of the antitrust class action lawsuits have been consolidated for pre-trial purposes in a Multi-District Litigation in Federal court in New Jersey. On April 27, 2009, the Company entered into a settlement agreement with the Distributor Plaintiffs in these actions. The settlement agreement provides for, among other things, the payment by the Company of $45 million in exchange for a release by all potential class members of the direct purchaser claims under federal antitrust laws related to the products and acts enumerated in the complaint, and a dismissal of the case with prejudice, insofar as it relates to direct purchaser claims. The release would not cover potential class members that affirmatively opt out of the settlement or indirect purchaser claims. On September 30, 2010, the District Court denied a motion to approve the settlement agreement, ruling that the Hospital Plaintiffs, and not the Distributor Plaintiffs, are the direct purchasers with standing to sue under federal antitrust laws. On June 5, 2012, the U.S. Court of Appeals for the Third Circuit reversed the District Court's standing decision and ruled that the Distributor Plaintiffs, not the Hospital Plaintiffs, are direct purchasers entitled to pursue damages. The Hospital Plaintiffs requested that the ruling be reconsidered, but that request was denied. The District Court preliminarily approved the settlement in November 2012, following which the settlement funds were placed in escrow by the Company. The settlement remains subject to final approval by the District Court. A hearing is scheduled before the District Court in March 2013 to rule on final approval of the settlement. The Company currently cannot estimate the range of reasonably possible losses with respect to these class action matters beyond the $45 million settlement, that has been paid in escrow, and changes to the amount already recognized may be required in the future as additional information becomes available. BOHNING CO: Recalls 150 Middleton Siege Crossbows ------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with The Bohning Company Ltd., of Lake City, Michigan, announced a voluntary recall of about 150 Middleton Siege Crossbows. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. The crossbow can fire unexpectedly when the auto-safety mechanism appears to be on and the trigger is pulled, posing an injury hazard to the user and bystanders. In addition, the crossbow limbs can crack or break under normal use. No incidents or injuries have been reported. This recall involves "The Siege" hunting crossbows with model numbers 315, 330, 355 and 375. "The Siege" and the model numbers are printed in large lettering directly above the trigger mechanism. "Bohning/Middleton Crossbow," "Patent pending" and serial number are engraved on opposite sides of the rear barrel of each crossbow. The serial number, 12-XXX, is unique for each crossbow. The crossbows measure 36 to 39 inches in length, are camouflage/black in color and have a scope mounted on the top. The crossbows were sold with a scope, arrow quiver, quiver brackets, cocking aid and a string changer. Pictures of the recalled products are available at: http://is.gd/cxShOv The recalled products were manufactured in Canada and sold at sporting goods stores in Texas and Pennsylvania and online at www.bohning.com from June 2012 through October 2012 for between $675 and $985. Consumers should immediately stop using the recalled crossbows and contact Bohning to return the crossbows for a full refund. Bohning is contacting customers directly. The Bohning Company, Ltd. may be reached at (800) 253-0136, from 8:00 a.m. to 5:00 p.m. Eastern Time Monday through Friday, or online at http://www.bohning.com/and click Product Recall for more information. CELERA CORP: Mandatory Class Members May Be Given Opt-Out Rights ---------------------------------------------------------------- According to Joshua D. Yount, Esq. -- jdyount@mayerbrown.com -- of Mayer Brown, a recent decision from the Delaware Supreme Court is a reminder that the members of a mandatory class -- one in which the class isn't guaranteed opt-out rights -- sometimes may be given the right to opt out in order to pursue their own individual actions. The decision, In re Celera Corp. Shareholder Litigation, addressed a class settlement of claims that the directors of Celera Corp. had breached their fiduciary duties in agreeing to a merger with Quest Diagnostics. The settlement promised "therapeutic benefits" to the class of Celera shareholders, such as additional disclosures and changes to the merger agreement that made it easier for Celera to entertain other offers. But the settlement gave class members no damages, it released all shareholder claims related to the merger, and it barred class members from opting out to pursue individual actions. The chancery court certified the class under its Rule 23(b)(1) (because of the potential for inconsistent adjudications) and Rule 23(b)(2) (because the class sought injunctive relief). The chancery court also overruled the objection to the settlement lodged by Celera's largest shareholder, BVF Partners, which believed that the transaction undervalued Celera and wanted to pursue an individual claim for damages. On appeal, the Delaware Supreme Court rejected BVF's challenge to the standing of the named plaintiff. The court ruled that even though the named plaintiff sold its shares before the consummation of the merger, the plaintiff still was an adequate class representative, albeit "barely," because it owned the shares when the merger was announced and did not "acquiesce" to the merger. The Delaware Supreme Court also saw no merit in BVF's argument that the class's potential damages claims should have precluded any class certification except under Delaware's Rule 23(b)(3), which guarantees opt-out rights to class members. The court explained that Delaware precedent allows shareholders to bring mandatory class actions under Rules 23(b)(1) and (b)(2) in order to challenge director conduct in carrying out corporate transactions. BVF had better success with its request to opt out of the certified class. The Delaware Supreme Court concluded that the chancery court should have allowed BVF to opt out. Worried that absent class members "could have their claims released without an opportunity to be heard," the court explained that the chancery court has discretion to permit class members to opt out of (b)(2) classes. The court noted that such discretionary opt-out rights have been allowed when an objector has a distinct claim or when allowing opt outs would facilitate fair and efficient litigation. The court then explained that the "objective of global peace" shared by the parties to the settlement was "outweighed by due process concerns" arising from BVF's circumstances. In particular, the named plaintiff was "barely" adequate, the "therapeutic relief" afforded by the class settlement was quickly mooted by consummation of the merger, and BVF was a substantial shareholder with a supportable damages claim. The court therefore concluded that barring BVF from opting out was an abuse of discretion. The Celera decision promises to become an important consideration in negotiating class settlements of challenges to corporate transactions in Delaware and elsewhere. Defendants can no longer count on obtaining global peace from a non-monetary class settlement. And both sides must now be ready to account for the possibility that objecting shareholders may try to obtain opt-out rights. CHINESE DRYWALL: Four Additional Class Action Settlements Reached ----------------------------------------------------------------- The law firms of Levin, Fishbein, Sedran & Berman, Herman, Herman & Katz, and the Law Offices of Richard Serpe, P.C. released a statement regarding the Chinese Drywall Class Action Settlement. "Four additional Settlements have been reached in class action litigation involving drywall imported to the U.S. from China," announced Plaintiffs' Liaison Counsel Russ Herman, of Herman, Herman & Katz. The litigation claims that Chinese drywall causes property damage, including damage to fixtures, electrical wiring, corrosion of pipes, and damage to or destruction of air conditioners, HVAC systems, refrigerators, and other appliances. Some people have also claimed that they suffered bodily injury as a result of exposure to Chinese drywall. The companies being sued are Venture Supply, which sold drywall, and numerous distributors, suppliers, builders, developers, installers, and others who were associated with Chinese drywall. Some of these Defendants and some of their insurance companies have agreed to these Settlements. The Participating Defendants and Participating Insurers deny they did anything wrong. "These Settlements address a range of claims that people may have about Chinese drywall -- whether they are homeowners, renters, developers, or others who have sustained losses. And in combination with the resolution of other class action lawsuits, it will ensure that people are compensated through cash payments for Chinese drywall that caused damage," said Plaintiffs' Lead Counsel Arnold Levin of Levin, Fishbein, Sedran & Berman. There are four separate classes for each of the four Settlements: Nationwide Insureds Settlement Class Porter-Blaine/Venture Supply Settlement Class Tobin Trading and Installers Settlement Class Builders Mutual Insureds Settlement Class Individuals and businesses are Class Members and likely included in one or more of the Settlements if they have any claim for property damage or personal injuries related to Chinese drywall sold by, used by, installed by, or otherwise within the legal responsibility of a Participating Defendant. Most Class Members will likely be residents of Virginia; however, a few Class Members may be residents of other states within the U.S. More information about the type of damage caused by Chinese drywall, including pictures of the included drywall and damage the lawsuit claims it causes, can be found at the Settlement Web site, ChineseDrywallClass-VA.com. A list of Participating Defendants for each of the Settlements can also be found on the Settlement Web site. Currently, there is not a claims process for these Settlements. At a later date the Court will approve a plan to distribute benefits to Class Members. At that time Class Members may receive payments for their damages caused by their drywall. Some Class Members will have received a notice in the mail about the Settlements, and do not have to do anything to stay in the Classes. For those who did not receive a notice in the mail, they must register to receive future updates about the Settlements, including when a claims process is available. Class Members can register at ChineseDrywallClass-VA.com, by completing the Online Registration Form, or by calling 1-877-418-8087. Class Members have a choice of whether or not to stay in the Classes. If Class Members choose to stay in the Classes, they will be legally bound by all orders and judgments of the Court, and they will not be able to sue, or continue to sue, the Defendants for the issues involved in this lawsuit. Class Members that do not wish to be included in the Settlements can ask to be excluded from the Classes. If they exclude themselves, they will keep any rights to sue the Participating Defendants for these claims, now or in the future, and will not be bound by any orders or judgments of the Court. Class Members must exclude themselves in writing by April 25, 2013. Those wishing to stay in a Settlement Class may object to that Settlement no later than April 25, 2013. More information regarding this lawsuit and Class Members' rights, including how Class Members can exclude themselves, is available at ChineseDrywallClass-VA.com or by calling 1-877-418-8087. CONSOL ENERGY: Appeal From Dismissal of "Comer" II Suit Pending --------------------------------------------------------------- In 2005, plaintiffs Ned Comer and others filed a purported class action lawsuit in the U.S. District Court for the Southern District of Mississippi against a number of companies in energy, fossil fuels and chemical industries, including CONSOL Energy Inc. styled, Comer, et al. v. Murphy Oil, et al. The plaintiffs, residents and owners of property along the Mississippi Gulf coast, alleged that the defendants caused the emission of greenhouse gases that contributed to global warming, which in turn caused a rise in sea levels and added to the ferocity of Hurricane Katrina, which combined to destroy the plaintiffs' property. The District Court dismissed the case and the plaintiffs appealed. The Circuit Court panel reversed and the defendants sought a rehearing before the entire court. A rehearing before the entire court was granted, which had the effect of vacating the panel's reversal, but before the case could be heard on the merits, a number of judges recused themselves and there was no longer a quorum. As a result, the District Court's dismissal was effectively reinstated. The plaintiffs asked the U.S. Supreme Court to require the Circuit Court to address the merits of their appeal. On January 11, 2011, the Supreme Court denied that request. Although that should have resulted in the dismissal being final, the plaintiffs filed a lawsuit on May 27, 2011, in the same jurisdiction against essentially the same defendants making nearly identical allegations as in the original lawsuit. The trial court has dismissed this case. The dismissal is being appealed. No further updates were reported in the Company's February 7, 2013, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2012. Consol Energy Inc. -- http//:www.consolenergy.com/ -- is an American energy company with interests in coal and natural gas production headquartered in the suburb of Cecil Township, in the Southpointe complex, just outside of Pittsburgh, Pennsylvania. The Company is a leading producer of high-BTU bituminous coal in the United States and the U.S.'s largest underground coal mining company. CONSOL ENERGY: Discovery Currently Proceeding in "Hale" Suit ------------------------------------------------------------ Discovery is proceeding in the class action lawsuit in Virginia involving a subsidiary of CONSOL Energy Inc., according to the Company's February 7, 2013, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2012. A purported class action lawsuit was filed on September 23, 2010, in U.S. District Court in Abingdon, Virginia, styled Hale v. CNX Gas Company, et al. The lawsuit alleges that the plaintiff class consists of oil and gas owners, that the Virginia Supreme Court has decided that coalbed methane (CBM) belongs to the owner of the oil and gas estate, that the Virginia Gas and Oil Act of 1990 unconstitutionally allows force pooling of CBM, that the Act unconstitutionally provides only a 1/8 royalty to CBM owners for gas produced under the force pooling orders, and that the Company only relied upon control of the coal estate in force pooling the CBM notwithstanding the Virginia Supreme Court decision holding that if only the coal estate is controlled, the CBM is not thereby controlled. The lawsuit seeks a judicial declaration of ownership of the CBM and that the entire net proceeds of CBM production (that is, the 1/8 royalty and the 7/8 of net revenues since production began) be distributed to the class members. The Magistrate Judge issued a Report and Recommendation in which she recommended that the District Judge decide that the deemed lease provision of the Gas and Oil Act is constitutional as is the 1/8 royalty, and that CNX Gas need not distribute the net proceeds to class members. The Magistrate Judge recommended against the dismissal of certain other claims, none of which are believed to have any significance. The District Judge affirmed the Magistrate Judge's recommendations in their entirety. An amended complaint was filed, which added two additional claims alleging that gas hedging receipts should have been used as the basis for royalty payments and that severance tax should not be allowed as a post-production deduction from royalties. A motion to dismiss those claims was filed and was denied. Discovery is proceeding in this litigation. CONSOL Energy believes that the case is without merit and intends to defend it vigorously. The Company has established an accrual to cover its estimated liability for this case. This accrual is immaterial to the overall financial position of CONSOL Energy and is included in Other Accrued Liabilities on the Consolidated Balance Sheet. Consol Energy Inc. -- http//:www.consolenergy.com/ -- is an American energy company with interests in coal and natural gas production headquartered in the suburb of Cecil Township, in the Southpointe complex, just outside of Pittsburgh, Pennsylvania. The Company is a leading producer of high-BTU bituminous coal in the United States and the U.S.'s largest underground coal mining company. CONSOL ENERGY: Discovery in "Addison" Suit Still Proceeding ----------------------------------------------------------- Discovery is proceeding in the class action lawsuit styled Addison v. CNX Gas Company, according to CONSOL Energy Inc.'s February 7, 2013, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2012. A purported class action lawsuit was filed on April 28, 2010, in Federal court in Virginia styled Addison v. CNX Gas Company. The case involves two primary claims: (i) the plaintiff and similarly situated CNX Gas Company lessors identified as conflicting claimants during the force pooling process before the Virginia Gas and Oil Board are the owners of the coalbed methane (CBM) and, accordingly, the owners of the escrowed royalty payments being held by the Commonwealth of Virginia; and (ii) CNX Gas Company failed to either pay royalties due these conflicting claimant lessors or paid them less than required because of the alleged practice of improper below market sales and/or taking alleged improper post-production deductions. Plaintiffs seek a declaratory judgment regarding ownership and compensatory and punitive damages for breach of contract; conversion; negligence (voluntary undertaking), for force pooling coal owners after the Ratliff decision declared coal owners did not own the CBM; negligent breach of duties as an operator; breach of fiduciary duties; and unjust enrichment. The Company filed a Motion to Dismiss in this case, and the Magistrate Judge recommended dismissing some claims and allowing others to proceed. The District Judge affirmed the Magistrate Judge's recommendations in their entirety. An amended complaint was filed, which added an additional claim that gas hedging receipts should have been used as the basis for royalty payments. A motion to dismiss those claims was filed and was denied. Discovery is proceeding in this litigation. CONSOL Energy believes that the case is without merit and intends to defend it vigorously. The Company has established an accrual to cover its estimated liability for this case. This accrual is immaterial to the overall financial position of CONSOL Energy and is included in Other Accrued Liabilities on the Consolidated Balance Sheet. Consol Energy Inc. -- http//:www.consolenergy.com/ -- is an American energy company with interests in coal and natural gas production headquartered in the suburb of Cecil Township, in the Southpointe complex, just outside of Pittsburgh, Pennsylvania. The Company is a leading producer of high-BTU bituminous coal in the United States and the U.S.'s largest underground coal mining company. CONSOL ENERGY: "Hall" Suit Remains Pending in Pennsylvania ---------------------------------------------------------- A purported class action lawsuit was filed on December 23, 2010, styled Hall v. CONSOL Gas Company in Allegheny County Pennsylvania Common Pleas Court. The named plaintiff is Earl D. Hall. The purported class plaintiffs are all Pennsylvania oil and gas lessors to Dominion Exploration and Production Company, whose leases were acquired by CONSOL Energy Inc. The complaint alleges more than 1,000 similarly situated lessors. The lawsuit alleges that CONSOL Energy incorrectly calculated royalties by (i) calculating line loss on the basis of allocated volumes rather than on a well-by-well basis, (ii) possibly calculating the royalty on the basis of an incorrect price, (iii) possibly taking unreasonable deductions for post-production costs and costs that were not arms-length, (iv) not paying royalties on gas lost or used before the point of sale, and (v) not paying royalties on oil production. The complaint also alleges that royalty statements were false and misleading. The complaint seeks damages, interest and an accounting on a well-by-well basis. No further updates were reported in the Company's February 7, 2013, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2012. CONSOL Energy believes that the case is without merit and intends to defend it vigorously. Consequently, the Company has not recognized any liability related to these actions. Consol Energy Inc. -- http//:www.consolenergy.com/ -- is an American energy company with interests in coal and natural gas production headquartered in the suburb of Cecil Township, in the Southpointe complex, just outside of Pittsburgh, Pennsylvania. The Company is a leading producer of high-BTU bituminous coal in the United States and the U.S.'s largest underground coal mining company. CONSOL ENERGY: Trial in CNX Gas Shareholders Suit on March 11 ------------------------------------------------------------- The CNX Gas Shareholders Litigation is scheduled for trial on March 11, 2013, according to CONSOL Energy Inc.'s February 7, 2013, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2012. CONSOL Energy has been named as a defendant in five putative class actions brought by alleged shareholders of CNX Gas Corporation (CNX Gas) challenging the tender offer by CONSOL Energy to acquire all of the shares of CNX Gas common stock that CONSOL Energy did not already own for $38.25 per share. The two cases filed in Pennsylvania Common Pleas Court have been stayed and the three cases filed in the Delaware Chancery Court have been consolidated under the caption In Re CNX Gas Shareholders Litigation (C.A. No. 5377-VCL). All five actions generally allege that CONSOL Energy breached and/or aided and abetted in the breach of fiduciary duties purportedly owed to CNX Gas public shareholders, essentially alleging that the $38.25 per share price that CONSOL Energy paid to CNX Gas shareholders in the tender offer and subsequent short-form merger was unfair. Among other things, the actions sought a permanent injunction against or rescission of the tender offer, damages, and attorneys' fees and expenses. The lawsuit is scheduled for trial on March 11, 2013. Mediation, which was scheduled in early December 2012, was canceled due to the Plaintiffs. CONSOL Energy believes that these actions are without merit and intends to defend them vigorously. For that reason, the Company has not accrued a liability for this claim; however, if liability is ultimately imposed, based on the expert reports that have been exchanged by the parties, the Company believes the potential loss could be up to $221 million. Consol Energy Inc. -- http//:www.consolenergy.com/ -- is an American energy company with interests in coal and natural gas production headquartered in the suburb of Cecil Township, in the Southpointe complex, just outside of Pittsburgh, Pennsylvania. The Company is a leading producer of high-BTU bituminous coal in the United States and the U.S.'s largest underground coal mining company. CRST VAN: Settles Sexual Harassment Class Action for $50,000 ------------------------------------------------------------ Ryan J. Foley, writing for The Associated Press, reports that a trucking company will pay $50,000 to settle a sexual harassment lawsuit, a token payment to avoid trial in a closely watched case that has sharply limited the government's ability to file large workplace discrimination lawsuits in several states. Cedar Rapids-based CRST Van Expedited, Inc. agreed to the payment on Feb. 8 to Monika Starke, the lone remaining plaintiff in what had once been a major lawsuit by the Equal Employment Opportunity Commission. In exchange, the company avoided the cost of defending itself against Ms. Starke's allegations that it was too slow to respond to her claims that a male trainer had sexually harassed her. The settlement is a pittance compared to what CRST, one of the nation's largest interstate trucking companies, might have had to pay if federal judges hadn't drastically narrowed the scope of the lawsuit and made it harder for the EEOC to pursue class-action discrimination cases in the region. In an unusual provision for an EEOC settlement that underscores how badly it fared, CRST will be allowed to try to recoup from it millions of dollars the company spent fighting allegations by other women that were dismissed. CRST CEO David Rusch said on Feb. 11 he believes the company would have prevailed at trial, but agreed to the settlement to avoid spending up to $1 million defending itself. He said the company has already spent more than $12 million on attorneys, and hopes a judge will order the commission to pay some of those costs. Mr. Rusch said the EEOC filed a lawsuit before interviewing all the women who it alleged were victims. He said sexual harassment did happen at CRST, but company officials had procedures for reporting and preventing it. "Somebody was claiming that we tolerate harassment, which is absolutely erroneous, absolutely a witch hunt, and that's why we took the aggressive posture that we did," he said. The case began with a 2005 complaint from Ms. Starke, an Azle, Texas, driver who alleged that she was paired with a male colleague who constantly made crude sexual remarks and advances toward her. The company denied her claims. After failing to reach settlement, the EEOC filed a class-action lawsuit in 2007 on behalf of female CRST drivers who it said were subjected to offensive comments, groped or even assaulted by male trainers and co-drivers during cross-country trips. The commission sent letters to notify female employees, and dozens stepped forward with complaints. CRST is known for its "team driving" concept, in which trucks are driven by two drivers who alternate between driving and sleeping. CRST argued that it immediately investigated reports of harassment and took actions such as reassigning drivers. Complaints by many of the women already had been dealt with internally, Mr. Rusch said. U.S. District Judge Linda Reade faulted the commission for being slow to identify the class and complained that its lawyers were using the discovery process to identify victims and investigate claims, rather than doing so beforehand. Eventually, the agency said it would bring claims for 270 women, but only 150 were deposed by a court deadline. For various legal reasons, all the claims except Ms. Starke's were ultimately dismissed. Judge Reade acknowledged that she threw out potentially worthy allegations by dozens of women because the commission took a "sue first, ask questions later" litigation strategy. Last year, a panel of the 8th Circuit Court of Appeals, which hears cases from the Dakotas to Arkansas, largely upheld Judge Reade's ruling in a 2-1 decision, but reinstated Ms. Starke's claim and set aside Judge Reade's award to CRST of $4.5 million in legal fees. The panel ruled that the EEOC must investigate the claims of every potential victim and seek informal settlements on their behalf before filing class-action lawsuits. This made it harder for the government to pursue similar class-action cases in that region than anywhere else in the U.S. Commission officials have argued that the stricter standard would impede its ability to enforce laws at workplaces with widespread discrimination and harassment. They say it is impractical to identify every possible victim in large cases and the requirement may reward employers who withhold information. "This case has been a bad dream for the EEOC," said Chicago lawyer Gerald Maatman, who represents companies sued by the EEOC. "Their position has been rejected pretty thoroughly and it's created problems for them. And now employers are pressing this argument in other areas of the country." He said the standard is important because employers facing commission lawsuits want to know how big damages could be before deciding whether to settle. Judges in the 6th Circuit recently ruled in the commission's favor in a similar case, ruling that a lawsuit against Cintas Corp. on behalf of female employees in Michigan could proceed. The parties reached the Feb. 8 settlement after Judge Reade ruled that 15 other women who claimed harassment would not be allowed to testify at Ms. Starke's trial. Mr. Maatman said he now expected "a big battle" over whether and how much the commission should pay in fees. DAIICHI SANKYO: Sanford Heisler Files $100-Million Class Action --------------------------------------------------------------- On Feb. 11, six current and former female pharmaceutical sales professionals filed a $100 million class and collective action gender discrimination lawsuit against Daiichi Sankyo in the U.S. District Court for the Northern District of California. Represented by Sanford Heisler, LLP, a civil rights law firm that has successfully litigated class action cases in the industry, these women seek to end pervasive gender discrimination in their workplace on behalf of themselves and a class of several hundred female Daiichi Sankyo sales professionals who have worked for the company in the United States. Daiichi Sankyo is the U.S. branch of Daiichi Sankyo Company, Ltd., a Japan-based pharmaceutical giant that employs approximately 3,000 people in the United States. In 2010, Daiichi Sankyo reported sales of more than $2.6 billion in North America. The Complaint alleges that Daiichi Sankyo pays female sales employees less than male employees for doing the same work; promotes or advances female sales employees at a slower rate than male sales employees; treats pregnant employees and working mothers of young children adversely compared to non-pregnant employees, male employees, or non-caregivers; and subjects women to other discriminatory terms and conditions of employment. "Female pharmaceutical sales employees, including the Plaintiffs, have been cautioned against committing 'career suicide' if they choose to have children while working for Daiichi Sankyo," said Janette Wipper -- jwipper@sanfordheisler.com -- a San Francisco- based Partner at Sanford Heisler and lead attorney on the matter. "Daiichi Sankyo's female sales reps have also been called 'baby- makers' while pregnant, required to attend meetings in smoke- filled rooms during their pregnancies, and received suspect reductions in compensation after returning from maternity leaves. Women who have dared to complain about the unequal treatment have been summarily 'managed out' of the company." According to the Complaint, a discrete group of predominantly male Daiichi executives and senior sales managers keep a tight rein on employment decisions, including decisions regarding sales employees' compensation, advancement, and other terms and conditions of employment. Through this male dominated leadership structure, the Company has approved and implemented policies, practices and decisions that have systemically discriminated against female employees. "Daiichi Sankyo's systemic discriminatory actions span the gamut of prohibited employment practices," said Felicia Medina -- fmedina@sanfordheisler.com -- Senior Litigation Counsel at Sanford Heisler's San Francisco office. "The Company's behavior, as detailed in the Complaint, reads like a primer on how not to treat female employees, particularly those who are pregnant or have caregiving responsibilities for infants. Plaintiffs' experiences illustrate the lengths Daiichi Sankyo goes to ensure that women remain in their 'place,' especially women who avail themselves of the Company's so-called 'flexible work schedule' when they are expecting a child or caring for their newborns." The Plaintiffs cite Daiichi Sankyo's violations of Title VII of the Civil Rights Act of 1964 and the federal Equal Pay Act of 1963, as well as the California Fair Employment and Housing Act, the California Equal Pay Act and the California Unfair Business Practices Act in the Feb. 11 Complaint. "As a consequence of this Company's continuous discriminatory conduct, the Plaintiffs and the class are entitled to all legal and equitable remedies available for violations of these laws, especially much needed programmatic change within the Company to ensure that going forward women -- including women with children -- are provided equal employment opportunities at Daiichi," said Ms. Wipper. About Sanford Heisler, LLP Sanford Heisler is a law firm with offices in Washington, D.C., New York, and San Francisco that specializes in employment discrimination, wage and hour, qui tam and complex class action litigation. DEWEY & LEBOEUF: Loses Bid to Dismiss WARN Act Class Action ----------------------------------------------------------- Judge Martin Glenn of the U.S. Bankruptcy Court for the Southern District of New York denied approval of a motion filed by Dewey & LeBoeuf LLP to dismiss a putative class action adversary proceeding filed by Vittoria Conn. Dewey collapsed and filed for bankruptcy in May 2012. The class action, filed on behalf of 550 laid off employees, seeks relief for alleged violations of the Worker Adjustment and Retraining Notification Act and a determination that the alleged class claims are entitled to administrative expense or wage priority status. The Dewey estate sought to have the case dismissed on grounds that the firm was not an operating business when Ms. Conn was laid off and was not required to give 60 to 90 days notice. Dewey also contended that Ms. Conn could not bring a class action as part of the firm's bankruptcy proceedings because the maneuver would put the class members' interests ahead of creditors. However, the Court held that Ms. Conn's Complaint properly asserts causes of action under the WARN Act and that such claims seek primarily equitable relief that may be asserted in an adversary proceeding in the Debtors' Chapter 11 case. "While the Debtor may ultimately prevail on the liquidating fiduciary affirmative defense, or some other defense, the defenses are not established as a matter of law from the four corners of the Complaint. Therefore, the Motion is DENIED," Judge Glenn held. With respect to the Plaintiff's request that her claims be entitled to administrative expense or wage priority status, Judge Glenn said the requested relief may not be determined in an adversary proceeding, but only by motion in the main bankruptcy case. A hearing is scheduled for March 28 when Judge Glenn is expected to hear arguments from Dewey and Ms. Conn about whether the case should receive class action status. The case before Judge Glenn is styled In re: DEWEY & LEBOEUF LLP, et al., Chapter 11, Debtor. VITTORIA CONN, on behalf of herself and all others similarly situated Plaintiff, v. DEWEY & LEBOEUF LLP, Defendant, Case No. 12-12321 (MG), Adv. Proc. No. 12-01672 (MG). Jack A. Raisner, Esq., and Rene S. Roupinian, Esq., at Outten & Golden LLP in New York, represent the Plaintiff and the Putative Class. Frank A. Oswald, Esq. -- frankoswald@teamtogut.com -- Jonathan P. Ibsen, Esq. -- jibsen@teamtogut.com -- Lara R. Sheikh, Esq. -- lsheikh@teamtogut.com -- of Togut, Segal & Segal LLP at One Penn Plaza, Suite 3335 in New York, represent the Debtor. Joshua Davis, Esq. -- jdavis@goulstonstorrs.com -- and Elizabeth Levine, Esq. -- elevine@goulstonstorrs.com -- of Goulston & Storrs, P.C. at 400 Atlantic Avenue in Boston, Massachusetts, also represent the Debtor. A copy of the Bankruptcy Court's February 11, 2013 Memorandum Opinion and Order is available at http://is.gd/eU4ahLfrom Leagle.com. FORD: Faces Suit Over False Claims on 2013 Escape SE ---------------------------------------------------- Courthouse News Service reports that Ford's all-wheel drive 2013 Escape SE does not get the 22 mpg city and 30 mpg highway mileage of which Ford boasts, a class action claims in Federal Court. GOOGLE INC: Authors Guild Wants Class Action Cert. Upheld --------------------------------------------------------- MediaPost reports that the Authors Guild is asking a federal appellate court to allow longstanding litigation about Google's book project to proceed as a class-action. The authors group argues that U.S. Circuit Court Judge Denny Chin correctly rejected Google's contention that copyright infringement requires case-by-case evaluation. "It is duplicitous for Google to implement a single, mass digitization policy affecting the rights of so many authors while at the same time argue that its policy must be analyzed in countless separate lawsuits," the Authors Guild says in a brief filed with the Second Circuit Court of Appeals. Last year, Circuit Court Judge Chin in New York certified the Authors Guild's lawsuit as a class-action. Judge Chin ruled that it wouldn't be fair to require writers to sue Google individually. Google is appealing that decision to the 2nd Circuit, which stayed the litigation when it considers the issue. Google argues that a class-action isn't appropriate because the Authors Guild and its members have conflicting interests. Google says that many writers approve of its decision to scan millions of books from public libraries and make them searchable. The company says a survey it commissioned of 800 authors shows that most like the digitization project. Most survey respondents -- 58% -- said they approved of Google scanning their books, while 19% say they have or would benefit from Google's scans. But the Authors Guild calls that survey "invalid and misleading" in its new court papers. "Google has no evidence a single author has financially benefited from Google Books," the Authors Guild argues. The organization also denies that its position conflicts with book writers. "Every class member timely registered their books (or had their publishers do so), an act that evinces a desire for maximum copyright protection," the group argues. Google also says that class-action certification is a mistake because the case presents fair use issues that require individual assessment. The Authors Guild disagrees, noting that Google itself already drew on "generalized, class-wide evidence" when it argued that the case should be dismissed on fair use grounds. The Authors Guild recently lost a fair use argument in another lawsuit stemming from Google's book digitization. In that case, U.S. District Court Judge Howard Baer in New York dismissed a lawsuit by the Authors Guild against five universities that worked with Google to digitize the books. "I cannot imagine a definition of fair use that would not encompass the transformative uses made by defendants' [mass digitization project] and would require that I terminate this invaluable contribution to the progress of science and cultivation of the arts," Judge Baer wrote in that case. The Authors Guild's dispute with Google dates to 2005, when the organization sued Google for allegedly infringing copyright by scanning library books and displaying snippets of some of them in its search engine, in response to queries. The Authors Guild and Google reached a settlement several years ago, but Judge Chin scuttled the deal due to antitrust concerns. That agreement would have allowed Google to create a new book registry and sell digital downloads at prices it sets with the registry. That deal also would have immunized Google -- but no other companies -- from copyright infringement liability for digitizing orphan works, or books under copyright whose owners can't be found. Critics, including consumer advocacy groups, argued that this provision would have granted Google a monopoly in orphan works. NEW YORK: "Stop and Frisk Suit" Obtains Class-Action Status ----------------------------------------------------------- Terry Baynes, writing for Reuters, reports that a federal judge on Feb. 11 granted class-action status to a lawsuit seeking to stop the New York Police Department from conducting some "stop and frisk" searches of people outside certain residential buildings in the city's Bronx borough. U.S. District Judge Shira Scheindlin found that a group of black and Latino residents in the Bronx could bring claims on behalf of a class of hundreds, and possibly thousands, of people at risk of being stopped outside the buildings. The lawsuit contends that the practice, in which police stop and question people they suspect of unlawful activity and frisk those they suspect of carrying weapons, violates the U.S. Constitution. On Jan. 8, Scheindlin ordered that some stops related to an anti- crime program once known as "Operation Clean Halls" must be halted immediately. Officers would have to have "reasonable suspicion" that an individual is engaged in criminal activity to make a stop, she ruled. But Judge Scheindlin placed that order on hold on Jan. 22, while the city pursues an appeal. Defenders of the tactics, including Mayor Michael Bloomberg, say the police practices have helped to reduce crime. The plaintiffs requested class-action status to ensure that any temporary ban on the program would apply to all people at risk of being stopped outside the Bronx apartment buildings, Monday's opinion said. The New York City Law Department did not immediately respond to a request for comment. The case is Ligon et al v City of New York, U.S. District Court, Southern District of New York, no. 12-2274. For the plaintiffs: Christopher Dunn, Alexis Karteron, Taylor Pendergrass and Daniel Mullkoff of the New York Civil Liberties Union; McGregor Smyth and Mariana Kovel of The Bronx Defenders; Juan Cartagena, Foster Maer and Roberto Concepcion of LatinoJustice PRLDEF; John Nathanson -- john.nathanson@shearman.com -- Tiana Peterson -- tiana.peterson@shearman.com -- and Mayer Grashin of Shearman & Sterling. For the city: Heidi Grossman, Mark Zuckerman, Joseph Marutollo, Brenda Cooke and Richard Weingarten of the New York City Law Department. NEWS CORP: Awaits Final Okay of Atty. Generals' Suit Settlement --------------------------------------------------------------- News Corporation is awaiting final approval of its settlement of class action lawsuits brought by state attorneys general, according to the Company's February 7, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended December 31, 2012. Following an investigation, on April 11, 2012, 16 state Attorneys General led by Texas and Connecticut (the "AGs") filed a similar action against certain publishers and Apple, Inc. in the Western District of Texas. On April 26, 2012, the AGs' action was transferred to Judge Cote. On May 17, 2012, 33 AGs filed a second amended complaint. As a result of a memorandum of understanding agreed upon with the AGs for Texas and Connecticut, HarperCollins was not named as a defendant in this action. Pursuant to the terms of the memorandum of understanding, HarperCollins entered into a settlement agreement with the AGs for Texas, Connecticut and Ohio on June 11, 2012. By August 28, 2012, forty-nine states (all but Minnesota) and five U.S. territories had signed on to that settlement agreement. On August 29, 2012, the AGs simultaneously filed a complaint against HarperCollins and two other publishers, a motion for preliminary approval of that settlement agreement and a proposed distribution plan. On September 14, 2012, Judge Cote granted the AGs' motion for preliminary approval of the settlement agreement and approved the AGs' proposed distribution plan. Notice was subsequently sent to potential class members, and a fairness hearing was scheduled on February 8, 2013. If the settlement agreement receives final approval, it would resolve all damage claims of individual citizens from those states and territories, including those represented in the purported class actions. While the settlement agreement with the AGs is still subject to final approval by the court, the Company believes that the proposed settlement, as currently drafted, will not have a material impact on the results of operations or the financial position of the Company. However, the Company can make no assurances that the proposed settlement will receive final approval. News Corporation, a Delaware corporation, is a diversified global media company with operations in the following six industry segments: (i) Cable Network Programming; (ii) Filmed Entertainment; (iii) Television; (iv) Direct Broadcast Satellite Television; (v) Publishing; and (vi) Other. The Company's activities are conducted principally in the United States, the United Kingdom, Continental Europe, Australia, Asia and Latin America. The Company is engaged in the publishing business, primarily through its subsidiaries News International, News Limited, Dow Jones, The New York Post, The Daily, HarperCollins Publishers and News America Marketing Group. NEWS CORP: Canadian Consumer Suits vs. HarperCollins Pending ------------------------------------------------------------ Commencing on February 24, 2012, five purported consumer class actions were filed in the Canadian provinces of British Columbia, Quebec and Ontario, which relate to the decisions by certain publishers, including News Corporation's subsidiary, HarperCollins Publishers L.L.C., to begin selling their eBooks in Canada pursuant to an agency relationship. The actions seek as relief special, general and punitive damages, injunctive relief and the costs of the litigations. While it is not possible to predict with any degree of certainty the ultimate outcome of these class actions, especially given their early stages, HarperCollins believes it was compliant with applicable antitrust and competition laws and intends to defend itself vigorously. No further updates were reported in the Company's February 7, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended December 31, 2012. News Corporation, a Delaware corporation, is a diversified global media company with operations in the following six industry segments: (i) Cable Network Programming; (ii) Filmed Entertainment; (iii) Television; (iv) Direct Broadcast Satellite Television; (v) Publishing; and (vi) Other. The Company's activities are conducted principally in the United States, the United Kingdom, Continental Europe, Australia, Asia and Latin America. The Company is engaged in the publishing business, primarily through its subsidiaries News International, News Limited, Dow Jones, The New York Post, The Daily, HarperCollins Publishers and News America Marketing Group. NEWS CORP: Bid to Dismiss "Wilder" Securities Suit Pending ---------------------------------------------------------- A motion to dismiss a securities class action lawsuit captioned Wilder v. News Corp., et al., is pending in New York, according to News Corporation's February 7, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended December 31, 2012. On July 18, 2011, a purported shareholder of the Company filed a derivative action captioned Shields v. Murdoch, et al. ("Shields Litigation"), in the United States District Court for the Southern District of New York. The plaintiff alleged violations of Section 14(a) of the Securities Exchange Act, as well as state law claims for breach of fiduciary duty, gross mismanagement, waste, abuse of control and contribution/indemnification arising from, and in connection with, The News of the World (the "NoW Matter"). The complaint names the directors of the Company as defendants and names the Company as a nominal defendant, and seeks damages and costs. On August 4, 2011, the plaintiff filed an amended complaint. The plaintiff seeks compensatory damages, an order declaring the October 15, 2010 shareholder vote on the election of the Company's directors void; an order setting an emergency shareholder vote date for election of new directors; an order requiring the Company to take certain specified corporate governance actions; and an order (i) putting forward a shareholder vote resolution for amendments to the Company's Article of Incorporation and (ii) taking such other action as may be necessary to place before shareholders for a vote on corporate governance policies that: (a) appoint a non-executive Chair of the Board who is not related to the Murdoch family or extended family; (b) appoint an independent Chair of the Board's Audit Committee; (c) appoint at least three independent directors to the Governance and Nominating Committees; (d) strengthen the Board's supervision of financial reporting processes and implement procedures for greater shareholder input into the policies and guidelines of the Board; and (e) appropriately test and strengthen the internal and audit control functions. On July 19, 2011, a purported class action lawsuit captioned Wilder v. News Corp., et al. ("Wilder Litigation"), was filed on behalf of all purchasers of the Company's common stock between March 3, 2011, and July 11, 2011, in the United States District Court for the Southern District of New York. The plaintiff brought claims under Section 10(b) and Section 20(a) of the Securities Exchange Act, alleging that false and misleading statements were issued regarding the NoW Matter. The lawsuit names as defendants the Company, Rupert Murdoch, James Murdoch and Rebekah Brooks, and seeks compensatory damages, rescission for damages sustained, and costs. On July 22, 2011, a purported shareholder of the Company filed a derivative action captioned Stricklin v. Murdoch, et al. ("Stricklin Litigation"), in the United States District Court for the Southern District of New York. The plaintiff brought claims for breach of fiduciary duty, gross mismanagement, and waste of corporate assets in connection with, among other things, (i) the NoW Matter; (ii) News America's purported payments to settle allegations of anti-competitive behavior; and (iii) the Shine Transaction. The action names as defendants the Company, Les Hinton, Rebekah Brooks, Paul Carlucci and the directors of the Company. On August 3, 2011, the plaintiff served a motion for expedited discovery and to appoint a conservator over the Company, which defendants objected to. The motion has not been formally calendared and there is no briefing schedule yet. On August 16, 2011, the plaintiffs filed an amended complaint. The plaintiff seeks various forms of relief including compensatory damages, injunctive relief, disgorgement, the award of voting rights to Class A shareholders, the appointment of a conservator over the Company to oversee the Company's responses to investigations and litigation related to the NoW Matter, fees and costs. On August 10, 2011, a purported shareholder of the Company filed a derivative action captioned Iron Workers Mid-South Pension Fund v. Murdoch, et al. ("Iron Workers Litigation"), in the United States District Court for the Southern District of New York. The plaintiff brought claims for breach of fiduciary duty, waste of corporate assets, unjust enrichment and alleged violations of Section 14(a) of the Securities Exchange Act in connection with the NoW Matter. The action names as defendants the Company, Les Hinton, Rebekah Brooks and the directors of the Company. The plaintiff seeks various forms of relief including compensatory damages, voiding the election of the director defendants, an order requiring the Company to take certain specified corporate governance actions, injunctive relief, restitution, fees and costs. The Wilder Litigation, the Stricklin Litigation and the Iron Workers Litigation are all now before the judge in the Shields Litigation. On November 21, 2011, the court issued an order setting a briefing schedule for the defendants' motion to stay the Stricklin Litigation, the Iron Workers Litigation and the Shields Litigation pending the outcome of the consolidated action pending in the Delaware Court of Chancery. On September 18, 2012, the Court denied the motion as to two of the cases and dismissed the third with leave to replead, which plaintiff has done. Specifically, on October 4, 2012, Stricklin filed a Second Amended Complaint that added a claim under Section 14(a) of the Securities Exchange Act challenging the disclosures in the Company's definitive proxy statements issued during the years of 2005 through 2012. The plaintiff seeks, among other things, to void the election of the director defendants at the Company's 2012 annual meeting. The plaintiffs in Shields, Stricklin and Iron Workers have requested a pre-motion conference to address the potential consolidation of these derivative actions and a briefing schedule regarding the potential leadership structure for the plaintiffs. The pre-motion conference has not yet been scheduled. In the Wilder Litigation, on June 5, 2012, the court issued an order appointing the Avon Pension Fund ("Avon") as lead plaintiff and Robbins Geller Rudman & Dowd as lead counsel. Thereafter, on July 3, 2012, the court issued an order providing that an amended consolidated complaint shall be filed by July 31, 2012. Avon filed an amended consolidated complaint on July 31, 2012, which among other things, added as defendants NI Group Limited and Les Hinton, and expanded the class period to include February 15, 2011, to July 18, 2011. Defendants filed their motion to dismiss on September 25, 2012, plaintiffs' opposition was filed November 6, 2012, and defendants' reply was filed November 30, 2012. The motion is pending. The Company's management believes these shareholder claims are entirely without merit, and intends to vigorously defend these actions. News Corporation, a Delaware corporation, is a diversified global media company with operations in the following six industry segments: (i) Cable Network Programming; (ii) Filmed Entertainment; (iii) Television; (iv) Direct Broadcast Satellite Television; (v) Publishing; and (vi) Other. The Company's activities are conducted principally in the United States, the United Kingdom, Continental Europe, Australia, Asia and Latin America. The Company is engaged in the publishing business, primarily through its subsidiaries News International, News Limited, Dow Jones, The New York Post, The Daily, HarperCollins Publishers and News America Marketing Group. NEWS CORP: Court Reserves Ruling on Bid to Junk 3rd Amended Suit ---------------------------------------------------------------- The Delaware Court of Chancery has reserved its decision with respect to a motion to dismiss a third amended consolidated shareholder complaint, according to News Corporation's February 7, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended December 31, 2012. On March 16, 2011, a complaint seeking to compel the inspection of the Company's books and records pursuant to 8 Del. C. Section 220, captioned Central Laborers Pension Fund v. News Corporation, was filed in the Delaware Court of Chancery. The plaintiff requested the Company's books and records to investigate alleged possible breaches of fiduciary duty by the directors of the Company in connection with the Company's purchase of Shine (the "Shine Transaction"). The Company moved to dismiss the action. On November 30, 2011, the court issued an order granting the Company's motion and dismissing the complaint. The plaintiff filed a notice of appeal on December 13, 2011. The Delaware Supreme Court heard argument on the fully-briefed appeal on April 18, 2012, and issued a decision on May 29, 2012, in which it affirmed the Court of Chancery's dismissal of the complaint. Also on March 16, 2011, two purported shareholders of the Company, one of which was Central Laborers Pension Fund, filed a derivative action in the Delaware Court of Chancery, captioned The Amalgamated Bank v. Murdoch, et al. (the "Amalgamated Bank Litigation"). The plaintiffs alleged that both the directors of the Company and Rupert Murdoch as a "controlling shareholder" breached their fiduciary duties in connection with the Shine Transaction. The lawsuit named as defendants all directors of the Company, and named the Company as a nominal defendant. Similar claims against the same group of defendants were filed in the Delaware Court of Chancery by a purported shareholder of the Company, New Orleans Employees' Retirement System, on March 25, 2011 (the "New Orleans Employees' Retirement Litigation"). Both the Amalgamated Bank Litigation and the New Orleans Employees' Retirement Litigation were consolidated on April 6, 2011 (the "Consolidated Action"), with The Amalgamated Bank's complaint serving as the operative complaint. The Consolidated Action was captioned In re News Corp. Shareholder Derivative Litigation. On April 9, 2011, the court entered a scheduling order governing the filing of an amended complaint and briefing on potential motions to dismiss. Thereafter, the plaintiffs in the Consolidated Action filed a Verified Consolidated Shareholder Derivative and Class Action Complaint (the "Consolidated Complaint") on May 13, 2011, seeking declaratory relief and damages. The Consolidated Complaint largely restated the claims in The Amalgamated Bank's initial complaint and also raised a direct claim on behalf of a purported class of Company shareholders relating to the possible addition of Elisabeth Murdoch to the Company's Board. The defendants filed opening briefs in support of motions to dismiss the Consolidated Complaint on June 10, 2011, as contemplated by the court's scheduling order. On July 8, 2011, the plaintiffs filed a Verified Amended Consolidated Shareholder Derivative and Class Action Complaint (the "Amended Complaint"). In addition to the claims that were previously raised in the Consolidated Complaint, the Amended Complaint brought claims relating to the alleged acts of voicemail interception at The News of the World (the "NoW Matter"). Specifically, the plaintiffs claimed in the Amended Complaint that the directors of the Company failed in their duty of oversight regarding the NoW Matter. On July 15, 2011, another purported stockholder of the Company filed a derivative action captioned Massachusetts Laborers' Pension & Annuity Funds v. Murdoch, et al., in the Delaware Court of Chancery (the "Mass. Laborers Litigation"). The complaint names as defendants the directors of the Company and the Company as a nominal defendant. The plaintiffs' claims are substantially similar to those raised by the Amended Complaint in the Consolidated Action. Specifically, the plaintiff alleged that the directors of the Company have breached their fiduciary duties by, among other things, approving the Shine Transaction and for failing to exercise proper oversight in connection with the NoW Matter. The plaintiff also brought a breach of fiduciary duty claim against Rupert Murdoch as "controlling shareholder," and a waste claim against the directors of the Company. The action seeks as relief damages, injunctive relief, fees and costs. On July 25, 2011, the plaintiffs in the Consolidated Action requested that the court consolidate the Mass. Laborers Litigation into the Consolidated Action. On August 24, 2011, the Mass. Laborers Litigation was consolidated with the Consolidated Action. On September 29, 2011, the plaintiffs filed a Verified Second Amended Consolidated Shareholder Derivative and Class Action Complaint ("Second Amended Complaint"). In the Second Amended Complaint, the plaintiffs removed their claims involving the possible addition of Elisabeth Murdoch to the Company's Board, added some factual allegations to support their remaining claims and added a claim seeking to enjoin a buyback of Common B shares to the extent it would result in a change of control. The Second Amended Complaint seeks declaratory relief, an injunction preventing the buyback of Class B shares, damages, pre- and post- judgment interest, fees and costs. The defendants filed a motion to dismiss the Second Amended Complaint. The hearing on the defendants' fully-briefed motion to dismiss was postponed to allow further briefing by plaintiffs after the Cohen Litigation was consolidated with the Consolidated Action. On March 2, 2012, another purported stockholder of the Company filed a derivative action captioned Belle M. Cohen v. Murdoch, et al., in the Delaware Court of Chancery (the "Cohen Litigation"). The complaint names as defendants the directors of the Company and the Company as a nominal defendant. The complaint's claims and allegations pertain to the NoW Matter and are substantially similar to the NoW Matter allegations raised in the Second Amended Complaint in the Consolidated Action. The complaint asserts causes of action against the defendants for alleged breach of fiduciary duty, gross mismanagement, contribution and indemnification, abuse of control, and waste of corporate assets. The action seeks as relief damages, fees and costs. On March 20, 2012, the Cohen Litigation was consolidated with the Consolidated Action. On June 18, 2012, the plaintiffs in the Consolidated Action filed a Verified Third Amended Consolidated Shareholder Derivative Complaint (the "Third Amended Complaint"). The Third Amended Complaint alleges claims against director defendants for breach of fiduciary duty arising from the Shine Transaction; against Rupert Murdoch for breach of fiduciary duty as the purported controlling shareholder of the Company in connection with the Shine Transaction; against director defendants for breach of fiduciary duty arising from their purported failure to investigate illegal conduct in the NoW Matter and allegedly permitting the Company to engage in a cover up; against certain defendants for breach of fiduciary duty in their capacity as officers arising from a purported failure to investigate illegal conduct in the NoW Matter and allegedly permitting the Company to engage in a cover up; and against James Murdoch for breach of fiduciary duty for allegedly engaging in a cover up related to the NoW Matter. The class action claim asserted in the Second Amended Complaint pertaining to the buyback of Common B shares and the relief related to that claim were removed. The Third Amended Complaint seeks a declaration that the defendants violated their fiduciary duties, damages, pre- and post-judgment interest, fees and costs. On July 18, 2012, the defendants renewed their postponed motion to dismiss in the Consolidated Action, and in support thereof, they filed supplemental briefing directed towards the allegations of the Third Amended Complaint. Plaintiffs' response was filed on August 8, 2012. A hearing on the fully briefed motion was held in Chancery Court on September 19, 2012. The Court reserved decision. News Corporation, a Delaware corporation, is a diversified global media company with operations in the following six industry segments: (i) Cable Network Programming; (ii) Filmed Entertainment; (iii) Television; (iv) Direct Broadcast Satellite Television; (v) Publishing; and (vi) Other. The Company's activities are conducted principally in the United States, the United Kingdom, Continental Europe, Australia, Asia and Latin America. The Company is engaged in the publishing business, primarily through its subsidiaries News International, News Limited, Dow Jones, The New York Post, The Daily, HarperCollins Publishers and News America Marketing Group. NEWS CORP: HarperCollins Defends Antitrust MDL in New York ---------------------------------------------------------- News Corporation's subsidiary is defending itself in a multidistrict litigation in New York, according to the Company's February 7, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended December 31, 2012. Commencing on August 9, 2011, twenty-nine purported consumer class actions have been filed in the U.S. District Courts for the Southern District of New York and for the Northern District of California, which relate to the decisions by certain publishers, including HarperCollins Publishers L.L.C. ("HarperCollins"), to begin selling their eBooks pursuant to an agency relationship. The cases all involve allegations that certain named defendants in the book publishing and distribution industry, including HarperCollins, violated the antitrust and unfair competition laws by virtue of the switch to the agency model for eBooks. The actions seek as relief treble damages, injunctive relief and attorneys' fees. The Judicial Panel on Multidistrict Litigation has transferred the various class actions to the Honorable Denise L. Cote in the Southern District of New York. On January 20, 2012, plaintiffs filed a consolidated amended complaint, again alleging that certain named defendants, including HarperCollins, violated the antitrust and unfair competition laws by virtue of the switch to the agency model for eBooks. Defendants filed a motion to dismiss on March 2, 2012. On May 15, 2012, Judge Cote denied defendants' motion to dismiss. On June 22, 2012, Judge Cote held a status conference to address discovery and scheduling issues. On June 25, 2012, Judge Cote issued a scheduling order for the multi-district litigation going forward. Additional information about In re MDL Electronic Books Antitrust Litigation, Civil Action No. 11-md-02293 (DLC), can be found on Public Access to Court Electronic Records (PACER). While it is not possible to predict with any degree of certainty the ultimate outcome of these class actions, HarperCollins believes it was compliant with applicable antitrust and competition laws. News Corporation, a Delaware corporation, is a diversified global media company with operations in the following six industry segments: (i) Cable Network Programming; (ii) Filmed Entertainment; (iii) Television; (iv) Direct Broadcast Satellite Television; (v) Publishing; and (vi) Other. The Company's activities are conducted principally in the United States, the United Kingdom, Continental Europe, Australia, Asia and Latin America. The Company is engaged in the publishing business, primarily through its subsidiaries News International, News Limited, Dow Jones, The New York Post, The Daily, HarperCollins Publishers and News America Marketing Group. NEWS CORP: Hearing on "Forsta Ap-Fonden" Suit Deal on April 26 -------------------------------------------------------------- The hearing for the court's approval of News Corporation's settlement of the class action lawsuit initiated by Forsta Ap- Fonden is set for April 26, 2013, according to the Company's February 7, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended December 31, 2012. On May 30, 2012, a purported stockholder of the Company filed a class action lawsuit in the Delaware Court of Chancery on behalf of all non-U.S. stockholders of the Company's Class B shares, captioned Forsta Ap-Fonden v. News Corporation, et al. The plaintiff alleges that, by temporarily suspending 50% of the voting rights of the Class B shares held by non-U.S. stockholders to remain in compliance with U.S. governing broadcast licenses (the "Suspension"), the Company and the Board violated the Company's charter and the General Corporation Law of the State of Delaware ("DGCL") and the directors breached their fiduciary duties, both in approving the Suspension and in failing to monitor the Company's ownership by non-U.S. stockholders. The complaint named as defendants the Company and all directors of the Company at the time of the Suspension. The complaint sought a declaration that the defendants violated the Company's charter and the DGCL, a declaration that the directors breached their fiduciary duties, a declaration that the Suspension is invalid and unenforceable, an injunction of the Suspension, damages, fees, and costs. On June 11, 2012, the defendants filed an opening brief in support of a motion to dismiss the complaint in its entirety. On August 2, 2012, the plaintiff filed a Verified Amended and Supplemented Class Action Complaint (the "Amended and Supplemented Complaint"). The Amended and Supplemented Complaint seeks a declaration that the defendants violated the Company's charter and the DGCL, a declaration that the directors breached their fiduciary duties, a declaration that the Suspension is invalid and unenforceable, an injunction of the Suspension, a declaration that non-U.S. stockholders of the Company's Class B shares are entitled to vote all of their shares on the Proposed Separation Transaction, damages, fees, and costs. On August 28, 2012, the parties entered into a Memorandum of Understanding providing for an agreement in principle to settle the lawsuit ("MOU"). The MOU, which was filed with the Court on September 5, 2012, provides in pertinent part: (i) within 5 business days after receiving Court approval, the Company will file a petition with the Federal Communications Commission (the "FCC") requesting permission to comply with law governing broadcast licenses for any meeting of stockholders by (a) determining the number of shares held by foreign stockholders that are present at the meeting and that would be entitled to vote but for the Suspension, and (b) counting as votes cast all voted shares held by foreign stockholders, up to a total of 25% of the shares voted; (ii) the Company's Audit Committee will determine on at least an annual basis the total number of voting shares held by non-U.S. citizens and will have the power to modify or eliminate any then-existing suspension; the Company will disclose this information in its annual proxy materials and (iii) the Company will not consent to amend, modify or terminate the Murdoch Family Interests agreement without prior approval of the Audit Committee, which in the case of any vote related to the Proposed Separation Transaction, must be unanimous. The settlement is subject to Court approval after notice to the stockholders and a hearing. The Stipulation of Settlement was filed with the Court on November 30, 2012. On December 10, 2012, the Court entered a Scheduling Order, which, among other things, set the settlement hearing for April 26, 2013, and approved the form of Notice of Pendency of Class Action, Proposed Settlement of Class Action, Settlement Hearing, and Right to Appear, which has been distributed to holders of the Company's Class B Common Stock in accordance with the Scheduling Order. News Corporation, a Delaware corporation, is a diversified global media company with operations in the following six industry segments: (i) Cable Network Programming; (ii) Filmed Entertainment; (iii) Television; (iv) Direct Broadcast Satellite Television; (v) Publishing; and (vi) Other. The Company's activities are conducted principally in the United States, the United Kingdom, Continental Europe, Australia, Asia and Latin America. The Company is engaged in the publishing business, primarily through its subsidiaries News International, News Limited, Dow Jones, The New York Post, The Daily, HarperCollins Publishers and News America Marketing Group. NORTH SHORE-LONG: Faces Identity Theft Class Action Suit -------------------------------------------------------- Courthouse News Service reports that North Shore-Long Island Jewish Health System allowed unencrypted, sensitive information on "hundreds of patients" to be swiped from its computers, a class action claims in Queens County Supreme Court. OCLARO INC: Discovery in Securities Class Suit Commences -------------------------------------------------------- Discovery has commenced in the securities class action lawsuit filed against Oclaro, Inc., according to the Company's February 7, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended December 29, 2012. On May 19, 2011, Curtis and Charlotte Westley filed a purported class action complaint in the United States District Court for the Northern District of California, against the Company and certain of its officers and directors. The Court subsequently appointed the Connecticut Laborers' Pension Fund (Pension Fund) as lead plaintiff for the putative class. On April 26, 2012, the Pension Fund filed a second amended complaint, captioned as Westley v. Oclaro, Inc., No. 11 Civ. 2448 EMC, allegedly on behalf of persons who purchased the Company's common stock between May 6, and October 28, 2010, alleging that the Company and certain of its officers and directors issued materially false and misleading statements during this time period regarding the Company's current business and financial condition, including projections for demand for its products, as well as its revenues, earnings, and gross margins, for the first quarter of fiscal year 2011 as well as the full fiscal year. The complaint alleges violations of section 10(b) of the Securities Exchange Act and Securities and Exchange Commission Rule 10b-5, as well as section 20(a) of the Securities Exchange Act. The complaint seeks damages and costs of an unspecified amount. On September 21, 2012, the Court dismissed the second amended complaint with leave to amend. After the Pension Fund moved for reconsideration, on January 10, 2013, the Court allowed plaintiffs to take discovery regarding statements made in May and June 2010. Plaintiffs have said that they intend to file a third amended complaint seeking to state a claim based on statements allegedly made from July through October 2010. Discovery has commenced, and no trial has been scheduled in this action. The Company says it intends to defend this litigation vigorously. The Company is unable at this time to estimate the effects of this lawsuit on its financial position, results of operations or cash flows. Oclaro Inc. is a tier-one provider of optical communications and laser components, modules and subsystems for a broad range of diverse markets, including telecommunications (telecom), industrial, scientific, consumer electronics and medical. OCLARO INC: Opnext Merger-Related Class Action Suits Resolved ------------------------------------------------------------- Class action lawsuits stemming from Oclaro, Inc.'s merger with Opnext, Inc. have either been settled or dismissed, according to the Company's February 7, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended December 29, 2012. On July 23, 2012, the Company completed a merger by and among Opnext, Inc. (Opnext), Tahoe Acquisition Sub, Inc., a newly formed wholly-owned subsidiary of Oclaro (Merger Sub), and Oclaro, pursuant to which the Company acquired Opnext through a merger of Merger Sub with and into Opnext. Five putative class actions challenging the merger between Opnext, Inc., Tahoe Acquisition Sub, Inc. and Oclaro, Inc. ("Merger") were filed in the Superior Court of the State of California in and for the County of Alameda: (1) Martin Zilberberg v. Charles J. Abbe, No RG12623460, on March 28, 2012; (2) Eleanor Welty v. Harry L. Bosco, Case No. RG12624240, on April 4, 2012; (3) Todd Wright v. Harry L. Bosco, Case No. RG12624343, on April 5, 2012; (4) Stephen Greenberg v. Charles J. Abbe, No. RG12624444, on April 5, 2012; and (5) Mark Graf v. Opnext, Inc., No. RG12624798, on April 9, 2012. Two putative class actions challenging the Merger were filed in the Delaware Court of Chancery: (1) Glenn Freedman v. Opnext, Inc., CA No. 7400-VCL, on April 5, 2012; and (2) Berger v. Bosco, No. 7406-VCL, on April 9, 2012. The defendants in each case were Opnext and the members of Opnext's Board (collectively, the "Opnext Defendants"), Oclaro, Inc. and Tahoe Acquisition Sub, Inc. (collectively, the "Oclaro Defendants"). Each action alleged that the Opnext Defendants breached their fiduciary duties to Opnext stockholders by entering into the Merger Agreement. Each action further alleged that the Oclaro Defendants aided and abetted those breaches of fiduciary duties. On July 6, 2012, plaintiff Wright voluntarily dismissed his complaint. The remaining plaintiffs executed a memorandum of understanding settling these matters, subject to court approval. Under the proposed settlement, the remaining plaintiffs agreed to settle these matters for additional disclosures only, and agreed to limit their application for fees and costs to $235,000. On January 31, 2013, the Alameda County Superior Court entered an order approving the settlement and granting plaintiffs' counsel $235,000 in fees and costs. On February 1, 2013, the Delaware Court of Chancery entered a stipulated order dismissing the Delaware actions. Oclaro Inc. is a tier-one provider of optical communications and laser components, modules and subsystems for a broad range of diverse markets, including telecommunications (telecom), industrial, scientific, consumer electronics and medical. PIEDMONT OFFICE: Final Hearing on Settlements Set for 2nd Quarter ----------------------------------------------------------------- A final approval hearing has been scheduled in the second quarter of 2013 in connection with Piedmont Office Realty Trust, Inc.'s settlements of two class action lawsuits, according to the Company's February 7, 2013, Form 8-K filing with the U.S. Securities and Exchange Commission. Since 2007, the Company has been a defendant in two class action lawsuits alleging inadequate disclosures in 2007 in SEC filings related to its internalization, response to a tender offer, and amendments to the Company's charter. As previously disclosed, the Company reached tentative settlements with the plaintiffs in both cases totaling $7.5 million. Subsequent to quarter end, the court preliminarily approved the proposed settlements. A final approval hearing has been scheduled in Q2 2013. The proposed settlements are within available insurance limits and the Company is seeking recovery of these settlements from its insurance carriers. SAMSONITE LLC: Recalls Dual-Wattage Travel Converter Kits --------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with Samsonite LLC, of Mansfield, Massachusetts, announced a voluntary recall of Dual-Wattage Travel Converter Kits. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. The converter can overheat if a load in excess of 50 watts is applied to the converter while in the 50-watt setting. This poses a fire and burn hazard to consumers. Samsonite is aware of three converters overheating. No injuries or property damage have been reported. This recall involves the Samsonite Dual-Wattage Travel Converter Kits used to make standard U.S. and Canadian appliances usable abroad. The kit includes one black converter to change 220-volt AC electricity to 110-volt AC, two adapter plugs with round prongs, two with flat prongs and one grounded adapter plug with three flat prongs. The converter has a red switch to adjust the wattage of the appliance from 50 to 1600 watts. The words "Dual- Wattage Converter" and "Do Not Use 50W on Hair Dryer" appear on the front of the converter. The Samsonite logo appears on each piece in the set. Picture of the recalled products is available at: http://is.gd/HBw6Zd The recalled products were manufactured in China and sold at retail stores nationwide and at the Samsonite on-line store from January 2011 through December 2012 for approximately $35. Consumers should immediately stop using the recalled travel converters and contact Samsonite to return the product for a full refund. Samsonite may be reached toll-free at (800) 382-7259 from 9:00 a.m. to 5:00 p.m. Eastern Time Monday through Friday; at e- mail recall@samsonite.com or online at http://www.samsonite.com/recall/ SHEILA MORRISON: Settles Class Action Over Alleged Abuses --------------------------------------------------------- Koskie Minsky LLP disclosed that on February 7, 2013, the parties entered into a C$4 million settlement of the class action relating to alleged abuses at the Sheila Morrison School. The Sheila Morrison School was a private school located in Utopia, near Barrie, Ontario. The school was primarily directed at students with learning disabilities, behavioral issues or special needs. The school closed in 2009. The settlement is subject to court approval and there will be a hearing on March 12, 2013 to consider such approval. The action was settled to the satisfaction of all parties and is, in the view of the parties, fair, reasonable and in the best interests of the class members. Koskie Minsky LLP, a leading Canadian class action law firm, acts for the plaintiffs and class members and supports the approval of the settlement. This settlement, if approved, would provide compensation to former students and would do so in a manner that accounts for how long students attended the school and the experiences they suffered. SUBURBAN PROPANE: Received Prelim. OK of Commercial Class Suit -------------------------------------------------------------- Suburban Propane Partners, L.P. (the "Partnership") received preliminary approval of its settlement of one of the commercial class action lawsuits commenced against it, according to the Company's February 7, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended December 29, 2012. The operations of Suburban Propane Partners, L.P. (the "Partnership") are subject to operating hazards and risks normally incidental to handling, storing and delivering combustible liquids, such as propane. The Partnership has been, and will continue to be, a defendant in various legal proceedings and litigation as a result of these operating hazards and risks, and as a result of other aspects of its business. In this last regard, the Partnership currently is a defendant in commercial lawsuits in two states, including one class action and another putative class action in which the court has denied class certification without prejudice. The Partnership believes both such lawsuits are without merit. The class action alleges several claims relating to two fees charged by the Partnership in connection with its residential propane business in California. During the fourth quarter of fiscal 2012, to avoid both the continued expenses and burden of defending that action and the uncertainty inherent in all litigations, the Partnership entered into an agreement to settle that California action on a class-wide basis in return for the payment of a monetary sum and certain non- monetary consideration, and established an accrual of $4.5 million for the estimated cost of the settlement. The court granted preliminary approval of the proposed settlement on November 19, 2012. In the putative class action, the Partnership has been successful in eliminating several of the claims such that only certain contractual and consumer statute claims remain. The Partnership is contesting this putative class action vigorously and has determined, based on the allegations and discovery to date, that no reserve for a loss contingency other than for legal defense fees and expenses is required. Suburban Propane Partners, L.P. (the "Partnership") is a publicly traded Delaware limited partnership principally engaged, through its operating partnership and subsidiaries, in the retail marketing and distribution of propane, fuel oil and refined fuels, as well as the marketing of natural gas and electricity in deregulated markets. The Company is headquartered in Whippany, New Jersey. TYSON FOODS: Court Won't Dismiss 3 Plaintiffs in Workers' Suit -------------------------------------------------------------- District Judge Joseph F. Bataillon refused to dismiss three plaintiffs in the lawsuit captioned JOSE A. GOMEZ, JULIANA REYES, JUAN M. CRUZ, TED MCDONALD, CECILIA ORTIZ, and MARIO CRUZ, on behalf of themselves and all other similarly situated individuals; Plaintiffs, v. TYSON FOODS, INC., Defendant, No. 8:08CV21, (D. Neb.). Tyson Foods have asked the Court to dismiss Dean Renfeld, Rosaura Azpeitia, and Raymond L. Plafcan for failure to provide responses to the Company's First Set of Interrogatories or Requests for Production. Judge Bataillon ruled that the plaintiffs' conduct does not warrant the extreme sanction of dismissal. The plaintiffs were earlier ordered to respond to discovery requests with respect to 13 plaintiffs. The Court's review of the record shows that the plaintiffs substantially complied with that order, and any remaining failures to respond do not appear to be in bad faith. "The defendant has not shown it will be prejudiced by these plaintiffs' failure to respond to the discovery," Judge Bataillon said. Accordingly, the defendants' motion to dismiss the claims of the three plaintiffs is denied. A copy of the District Court's February 11, 2013 memorandum and order is available at http://is.gd/bOwUuJfrom Leagle.com. WAGGIN' TRAIN: Sued for Selling Contaminated Dog Treats ------------------------------------------------------- Courthouse News Service reports that Waggin' Train and Nestle Purina sell Waggin' Train and Canyon Creek Ranch dog treats that are "contaminated with poisonous antibiotics and other potentially lethal substances," a class action claims in Jackson County Court. WILMINGTON TRUST: Faces Class Action Over Loan Practices -------------------------------------------------------- Kara Nuzback, writing for CapeGazette.com, reports that a Dover developer faces criminal charges, and Wilmington Trust Bank -- now owned by M&T Bank -- is fighting a class-action lawsuit, all related to the bank's process of doling out loans. The Federal Bureau of Investigation began probing the relationship between Wilmington Trust and developer Michael Zimmerman after retired Sen. George Bunting, D-Bethany Beach, wrote a series of letters, beginning Oct. 14, 2010, asking the Federal Reserve to investigate the bank's commercial loan practices. Wilmington Trust provided financing for a number of Mr. Zimmerman's projects, including Salt Pond Plaza in Ocean View and two other projects in Dover. Mr. Zimmerman has facilitated shopping centers, drug stores, grocery stores and residential centers in Sussex County, including Zwaanendael Landing in Lewes, Walmart in Georgetown, Long Neck Plaza and Milton Park Center. Mr. Zimmerman could not be reached at press time. The U.S. Attorney General's Office filed an indictment against Mr. Zimmerman Jan. 23, which included felony charges of conspiracy to commit bank fraud, making false statements to a financial institution and money laundering. Wilmington Trust shareholders, who were already suing the bank, filed an amended complaint Jan. 9. The shareholders accuse Wilmington Trust of securities fraud, which, they say, caused the demise of the 107-year-old bank as an independent institution. The lawsuit says Wilmington Trust was sold to M&T Bank at a fire- sale price equal to half the price at which its shares were trading. According to the suit, the bank's senior officers, including Chief Executive Officers Ted Cecala and Donald Foley, Chief Financial Officer David Gibson, President Robert Harra and Chief Credit Officer William North, encouraged loan officers to close loans, even if they thought borrowers would be unable to repay them. Many of the accusations in the suit are credited to a number of confidential witnesses who worked at Wilmington Trust. "Indeed, according to these witnesses, almost 75 percent of the bank's loans received 'essentially no review' by the credit review department, which was supposedly responsible for evaluating the performance of the bank's loans," the lawsuit reads. Lead plaintiffs in the class-action suit include Merced County Employee's Retirement Association, Coral Springs Police Pension Fund, St. Petersburg Firefighters' Retirement System, Pompano Beach General Employees Retirement System and Automotive Industries Pension Trust Fund. According to the suit, "The bank's underwriting deficiencies -- and the disastrous relationship with Zimmerman -- arose out of policies instituted by Defendants Cecala, Harra, and Gibson that favored extending a high volume of loans to customers based on the clients' ongoing or potential relationships with the bank, rather than on an evaluation of their creditworthiness." The suit says the Federal Reserve Board and internal and external auditors criticized Wilmington Trust's lax lending culture as early as 2007. "Notwithstanding these repeated warnings, the officer defendants did nothing to remedy these problems," the suit states. Wilmington Trust initiated a comprehensive analysis of its lending practices in Delaware in 2009. According to the lawsuit, the completed review expressed concerns with past management of the Delaware Commercial Real Estate Division, which was summarized in a March 12, 2010 memo, the Delaware Review Memorandum. The memo gave specific examples of the bank giving multimillion- dollar loans to developers, who then pocketed the money, including Mr. Zimmerman. "The bank's loans to this single developer alone totaled $90 million in March 2010, constituting almost 6 percent of the bank's entire commercial construction loan portfolio," the suit says. In one instance, the suit says, Mr. Zimmerman sent a fax to the bank in January 2008, which read, "Send $1,000,000 ASAP I have to pay my bar tab." Five days later, Wilmington Trust wired Mr. Zimmerman $1 million as an equity payout, the suit states; the fax was kept in the bank's Salt Pond loan file. Mr. Zimmerman was arrested last month, Jan. 25. He was then released Jan. 28, and ordered to appear in court at 1:00 p.m., Thursday, Feb. 21, at the Federal Courthouse in Wilmington. The indictment against Mr. Zimmerman, authored by Assistant U.S. Attorneys Robert Kravetz and Lesley Wolf, relates to three of Mr. Zimmerman's Delaware projects -- one in Ocean View and two in Dover. Mr. Kravetz and Ms. Wolf claim Mr. Zimmerman borrowed more than $12 million from Wilmington Trust to fund the Salt Pond Plaza project in Ocean View. Mr. Zimmerman built the project under the Salt Pond Plaza LLC, of which he owned the majority share. Wilmington Trust sold the debt associated with Mr. Zimmerman's developments to a third party on March 30, 2011, the indictment says. "Both in connection with the sale and prior to this time, the bank incurred a loss on the three Zimmerman-related projects in excess of $26 million," Mr. Kravetz and Ms. Wolf state. Nearly $10 million was lost on the Salt Pond project. Mr. Zimmerman's conspiracy charges relate to requests to pay for architectural and engineering services that were not actually performed. A July 8, 2007 request for $357,500 was taken from the bank to pay for what the indictment called soft costs; instead, a check was written to Mr. Zimmerman for $309,800. The remaining funds were paid to Mr. Zimmerman's Salt Pond partner Kevin Barrett, who owned an 11 percent share of Salt Pond LLC, and Mr. Zimmerman's company, BBC Properties. The attorneys cite five similar requests for the Salt Pond project and three similar requests for Mr. Zimmerman's two Dover projects. "At minimum, the fraudulent draw requests for the three projects totaled approximately $1.25 million," attorneys say. According to the class-action lawsuit against Wilmington Trust, "The bank eventually wrote off nearly half of its loans to Zimmerman, costing the bank over $43 million -- or 10 times the bank's net loss for all of 2009." Wilmington Trust announced it would be sold to M&T Bank in November 2010. "On the news of the merger -- which the New York Times termed 'one of the biggest so-called take-unders in recent Wall Street memory' -- the price of Wilmington's stock collapsed 46 percent, causing massive losses to investors," the suit says. The lead plaintiffs ask for a jury trial and demand monetary compensation for themselves and the class members. The suit does not specify the amount plaintiffs wish to be compensated. Asbestos Litigation ASBESTOS UPDATE: Architectural Firm Pleads Guilty to Safety Breach ------------------------------------------------------------------ Grant Prior of The Construction Enquirer reports that an architects' practice has been prosecuted after builders were potentially exposed to dangerous asbestos fibers during construction work at Aberystwyth Rugby Club in Mid Wales. Aberystwyth Magistrates heard that Dilwyn Roberts Penseiri/Architects Ltd failed to pass on vital information about the presence of asbestos insulation board to builders before they removed soffits from an end wall at the clubhouse in January 2012. The situation came to light during a routine inspection of the work by a HSE inspector who found remains of damaged asbestos insulation boards on the gable end of the clubhouse. A subsequent HSE investigation found that Dilwyn Roberts Penseiri/Architects Ltd had been appointed to design and oversee the work at the clubhouse and to act as the Construction, Design and Management Coordinator for the project. Although an asbestos survey was commissioned by the rugby club and sent to the architects, this was never shown to the contractors even though it clearly identified the presence of asbestos insulation board. When the work was tendered in August 2011, the practice prepared the pre-construction information and advised that an asbestos survey had identified asbestos cement in the soffits, but failed to mention the asbestos insulating board. Unlike asbestos cement products, asbestos insulation board requires removal by licensed companies under strictly controlled conditions. In January 2012, the building contractor removed the soffits on the end wall but had not recognized the material as asbestos boards. Dilwyn Roberts Penseiri/Architects Ltd of Newtown, Powys, pleaded guilty to a safety breach and was fined GBP5,400 and ordered to pay GBP2,917 in costs. HSE Inspector Phil Nicolle, speaking after the hearing, said: "Construction Design and Management Coordinators are required to identify and collect pre-construction information for projects. "It should contain all information relevant to the health and safety of people engaged in, affected by the work or using the building as a future workplace. "Dilwyn Roberts Penseiri/Architects Ltd failed to pass on vital survey information, which they were aware of, resulting in a construction worker being exposed to asbestos fibers." ASBESTOS UPDATE: Guernsey HSE Aims to Improve Fibro Policy ---------------------------------------------------------- BBC News Guernsey reports that Guernsey's Health and Safety Executive is asking people how it can improve its policy on asbestos. It wants to make clearer the responsibilities of contractors and building owners in dealing with the potentially hazardous substance. Richard Brown, the chief health and safety officer, said best practice had also evolved regarding its disposal, since the island last updated its laws. Asbestos fibers can cause serious lung diseases if they become airborne. ASBESTOS UPDATE: HSL Downplays Cwmcarn High School Fibro Risk ------------------------------------------------------------- BBC News South East Wales reports that a high school which closed last year following fears of asbestos is an "essentially uncontaminated school", says the health and Safety Executive (HSE). An earlier study said asbestos levels at Cwmcarn High School, Caerphilly county, were a potential health hazard. But new tests indicate risks to pupils and teachers are low, said HSE. The testing looked at the potential for the transfer of asbestos fibers from ceiling voids to rooms below. "Provided maintenance activities are carried out with the appropriate precautions, the debris in the ceiling void is unlikely to result in quantifiable airborne asbestos exposures to occupants," the report by the Health and Safety Laboratory (HSL) -- on behalf of HSE -- concluded. The school said results showed levels similar to those found in background levels in the atmosphere. The 900-pupil school closed in October after a structural report identified asbestos in the main block. Students are currently being educated 12 miles away at Coleg Gwent's Ebbw Vale campus. The previous report by Santia Asbestos Management Limited said asbestos in the roof may have been blown by the heating system, and airborne fibers were 10 times higher than the accepted levels. The union Unison said demolition was the safest option for staff and pupils. But the new report by HSL, which carries out scientific research and investigations, casts doubt on the potential danger. Suitable Solution The report said airborne asbestos fibers in the areas suspected most at risk were "very low and many times lower" than those assumed from the previous survey. HSE said: "Having made both visual checks of the fabric and considering the results of the HSL testing, HSE believes it is an essentially uncontaminated school. "However, any decision on whether it should re-open rests with the school governors. It is their choice whether to use the HSL report in any decision making." HSE said the method of testing that was carried out by Santia could "overestimate the levels of asbestos fibers as it does not distinguish between asbestos fibers and other fibers such as paper, clothing and skin cells." But HSE added: "The council acted appropriately in closing the school, given the advice contained in the report they commissioned at the time." The school said in a statement: "All of the samples taken by HSL were below the 'limit of quantification', in other words they were so small that they would be below the target sensitivity... "To place this in context such levels would be similar to that found in background levels in the atmosphere. "Even with attempts to disturb the fibers through opening all the doors and windows, levels of fibers in the classrooms remained below the levels of quantification." Caerphilly council said in a joint statement with the school that a management survey would be completed by next month looking at all options for the site. "We are hopeful that a suitable solution can be found in respect of the problems at the school site and the council are anxious to work with the governors and the head teacher on this issue," said the council. "But the council's main priority remains and will continue to be the welfare and education of the children attending school at Cwmcarn." Previously the council had expressed concern after the school was taken over by its governors. Its foundation status means governors can assume full control of the premises. However, the joint statement included a quote from the chair of the school's governing body, Gary Thomas, who said: "We are delighted that the council are working with Cwmcarn High School to find a positive outcome. "We are committed to working with the council and are agreeing a plan with them for the next steps" The school has also commissioned its own independent asbestos inspection report. ASBESTOS UPDATE: Lincolnshire Council Urged for Hazmat Amenities ---------------------------------------------------------------- The Grimsby Telegraph reports that calls have been made to Lincolnshire County Council to help make it easier for Wolds residents to dispose of asbestos. West Lindsey Councillor for Market Rasen Ken Bridger has urged the council to develop an asbestos policy to enable those living in the area to be able to get rid of the specialized waste. He said: "The problem is that a householder or business has to hire a private firm to dispose of asbestos. "Our neighboring authorities North and North East Lincolnshire will take it for free and, in North East Lincolnshire, it can go to a recycling centre. "That is a fantastic facility that we don't have. Lincolnshire will not take it either by collection or at an amenity site." Councillor Bridger added that he believed one consequence of the lack of amenities was that residents and businesses may resort to fly-tipping out of frustration. He said: "It can costs thousands of pounds to dispose of asbestos and many do not have that kind of money. "I would like to see an asbestos container at the Gallimore Lane site here in Market Rasen. There is a lot of asbestos shedding in this area and residents ask me where they can take it." The councillor admitted that his strong views on the subject came following an issue two years ago when, during his term as Mayor of Market Rasen, the town council had to pay out to remove top soil contaminated with asbestos from a playing field. He also holds an environmental science degree and is determined to press for better facilities locally. He said: "People dump asbestos on grass verges and then, in summer, the grass cutters churn it all up. That is not very satisfactory either." ASBESTOS UPDATE: Lordswood Locals Oppose Planned Hazmat Depot ------------------------------------------------------------- Dan Bloom at Kentonline.co.uk reports that more than 300 people have signed a petition against a planned asbestos depot a few hundred feet from their homes. Fuming neighbors of the site in Lordswood are backed by Chatham MP Tracey Crouch, who has campaigned in Parliament for better rights for asbestos disease sufferers. Medway has the second-highest death rate in the country, since the cancer-causing fibers were manufactured in Higham and used in Chatham Dockyard. Now the residents have launched a furious door-knocking campaign to try to kill off plans for the former council gritting depot at the southern end of North Dane Way, near the junction with Albemarle Road. Debbie and David Hales moved their surveying firm Asbestos First into the site last year and now want to use it as a waste transfer station. They would take in up to 70 tons of waste asbestos a week, double- bagged and stored in locked skips behind a barbed-wire fence, which would later be moved to bigger tips elsewhere. But residents and ward councillors, more than 50 of whom gathered for a protest on Saturday, Feb. 2, said although the station is 200ft from their homes, it is not far enough. Retired nurse Lyn Reed, 64, who lives in nearby Farley Close, said: "They might do it double-bagged and put into containers, but where are their vans coming from? Have they got anything on their tires when they come in? "I know people who've died because of asbestos. They worked in Chatham Dockyard. It is something I think a lot about." Mother-of-two Annabelle Eales, 19, was one of many who was not informed of the plan by Medway Council -- despite living yards away in Farley Close. Talking about asbestos, she said: "It kills, it's dangerous. It stays on your lungs and kills you. It's a slow and painful death. "It should be disposed of in a proper manner and not next to children's houses or schools. "If the wind gets hold of that asbestos, it can blow it all over the Medway area and living right next door to it is really dangerous. I've never been involved in a campaign like this in my life." Mrs. Hales, 42, said builders lack somewhere to dump small amounts of asbestos as Medway's other site, on the Medway City Estate, only takes very large deliveries. A nearby tip in North Dane Way does take asbestos, but Mrs. Hales said commercial deliveries are not allowed. She said: "The only thing we can't do currently is take it out of a van. Once we become a transfer station the regulations are almost suffocating and I will be doing it far more safely than is required at the moment. "I'm going to be here every day, so I don't want anything going wrong. It's a problem that exists and if I'm not going to solve it, who is? "There are unscrupulous types about and it does get fly-tipped." Chatham MP Tracey Crouch said: "My concern is if there was a disaster like a fire or a tree falling down on the site, then actually the residents wouldn't be protected." A final decision will be taken by Medway Council's planning committee later this spring. To find out how to sign the petition, visit the Facebook campaign page or phone organiser Tony Maund on 01634 325821. ASBESTOS UPDATE: Demolition Firm's 1970s Operation Blamed for Meso ------------------------------------------------------------------ BBC News Manchester reports that a woman who believes her cancer was caused by asbestos exposure as a child during demolition operations near her school, is taking legal action. Penny Garner, 45, from Salford, has the lung condition mesothelioma, which is linked to asbestos dust. Her lawyer believes she was exposed at Seedley Primary School in the 1970s, as a nearby swimming pool was demolished. Demolition firm P McGuinness and Co. denies liability and Salford Council has not commented on the case. Ms. Garner, from Peel Green, was diagnosed with the terminal condition in 2011 and says she could not believe it when the consultant asked if she had worked with asbestos. "I didn't really know what it was, I had never heard of it and then when I was told it was from asbestos, I was even more shocked," she said. The alleged link was discovered when her solicitor Neil Fisher, who could not find any link between where Ms. Garner had worked and asbestos, questioned her about her school. A family member recalled the demolition of the swimming pool. Mr. Fisher, a specialist in mesothelioma and asbestos illness compensation claims, said a medical report found a link between Ms. Garner's illness and exposure to asbestos. He said: "Dr. Rudd, a leading expert in asbestos-related diseases conducted a number of tests such as X-rays, scans and biopsies on Ms. Garner. "He is satisfied if the witness evidence of the levels of asbestos during the demolition is accepted by the court, he accepts the link between that exposure and Ms. Garner's illness." Ardwick-based building firm P McGuinness and Co., denied the claim and said it will defend itself at the High Court hearing which begins on Feb. 13 in Liverpool. Salford City Council said it will not comment until after the case has been resolved. ASBESTOS UPDATE: Birmingham Builder Fined for Illegal Abatement --------------------------------------------------------------- A Birmingham builder has been fined after causing young children and their parents to be potentially exposed to asbestos on the street where he lives, as well as risking exposure himself. The Health and Safety Executive (HSE) prosecuted Nicholas Sharpe, trading as Sharpe Builders, after he illegally removed and broke up asbestos panels from a home in Castle Bromwich. Solihull Magistrates' Court heard on Feb. 4 that HSE inspectors visited a house on Rover Drive on July 19, 2012, following a call from a Solihull Council Environmental Health Officer about possible unlicensed asbestos removal work. A HSE investigation found that, during work to covert a garage into a living room, Mr. Sharpe had been wearing only a dust mask for protection as he removed a number of Asbestos Insulating Boards (AIBs) from the ceiling. He broke these into pieces and put the uncovered panels on the householder's driveway. Mr. Sharpe had no plan for the work and had not acquired a survey of the building, so did not know that the material was asbestos. He also did not provide any information to the householders. The court was told Mr. Sharpe did not hold the necessary license to remove the asbestos boards, and failed to take adequate steps to prevent both the exposure to and spread of asbestos fibers generated by his work. These control measures are required by law to protect the health of workers and the general public from potentially harmful levels of airborne asbestos fibers. Nicholas Sharpe, of Rover Drive, Castle Bromwich, pleaded guilty to two breaches of the Control of Asbestos Regulations 2012. Mr. Sharpe was fined a total of GBP4,000 and ordered to pay costs of GBP1,100. Speaking after the prosecution, HSE Inspector Paul Cooper said: "Asbestos fibers are a well known and widely publicized potential health risk. The type of work being undertaken at Rover Drive should only be carried out by a contractor who holds the necessary license, in a safe manner and with the necessary control measures. "By carrying out this work in such a careless way, Mr. Sharpe exposed himself and others to potentially harmful airborne asbestos fibers. He also demonstrated a complete disregard for the law. "Unfortunately, those working in the construction industry are regularly exposed to asbestos. The legacy of past exposure is evident in the high numbers of people in the UK who are suffering from asbestos-related diseases which can sometimes be fatal. The current laws exist to protect future generations from this fate." Over 3,000 people a year die from asbestos-related illnesses in the UK. For further information, visit http://www.hse.gov.uk/asbestos 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. Regulation 5 of the Control of Asbestos Regulations 2006 states: "An employer shall not undertake work in demolition, maintenance, or any other work which exposes or is liable to expose his employees to asbestos in respect of any premises unless either he has carried out a suitable and sufficient assessment as to whether asbestos, what type of asbestos, contained in what material and in what condition is present or is liable to be present in those premises; or (b)if there is doubt as to whether asbestos is present in those premises he assumes that asbestos is present, and that it is not chrysotile alone, and observes the applicable provisions of these Regulations." Regulation 16 of the Control of Asbestos Regulations 2012 states: "Every employer must prevent or, where this is not reasonably practicable, reduce to the lowest level reasonably practicable the spread of asbestos from any place where work under the employer's control is carried out." ASBESTOS UPDATE: QWHS Checks Abatement Work at Gladstone Cinema --------------------------------------------------------------- Kara Irving of The Gladstone Observer reports that Queensland Workplace Health and Safety officers were called to inspect the old Gladstone Civic Cinema site after public concern the asbestos sheeting in the structure was not being removed correctly. It's believed the QWHS inspector visited the site on Friday, Feb. 1. On Tuesday, Feb. 5, a QWHS representative confirmed the asbestos removalist company was licensed and carried out work in accordance with workplace health and safety guidelines. ASBESTOS UPDATE: Joint Venture Secures GBP311,643 For ARD Victims ----------------------------------------------------------------- The Northern Echo (UK) reports that Advice workers have secured GBP311,643 in compensation for North-East asbestos victims in five months. The Northern TUC Asbestos Support and Campaign Group has also facilitated payment of welfare benefits in excess of GBP105,000 per month for victims and their families. The recipients suffer from debilitating asbestos-related diseases (ARD) including mesothelioma, asbestosis and lung cancer. The group is a partnership between the Northern TUC, Macmillan Cancer Support, regional trade unions and Wallsend Memorial Hall and People's Centre. It aims to support, advise and inform people living with the effects of asbestos poisoning. It employs two dedicated members of staff, Maggie Fitzsimons, Support Worker and Maggie Bailey, Macmillan Welfare Rights Adviser. Kevin Rowan, Northern TUC Regional Secretary said: "This is a huge, life-changing amount of money going to help the people who need it most, and as an added benefit it will be recycled into the local economy providing a win-win situation for the welfare of workers and the region as a whole." Stephen Guy, Macmillan Development Manager for North East said: "It is only correct that people who have suffered have their right to state benefits and compensation protected and maximized. This joint venture delivers." ASBESTOS UPDATE: New Fibro Test Method in Soil Approved ------------------------------------------------------- Environmental Technology Online posts that a new ASTM International standard is focused exclusively on testing soil for asbestos. ASTM D7521, Test Method for Determination of Asbestos in Soil, was developed by Subcommittee D22.07 on Sampling and Analysis of Asbestos, part of ASTM International Committee D22 on Air Quality. According to Alan Segrave, division manager, laboratory services, Bureau Veritas, and an ASTM D22 member, many materials that are analyzed for asbestos are man-made and contain known types and quantities of asbestos. Testing soil presents a unique set of challenges. "For soils, the asbestos is not typically homogeneous, and the soil matrix tends to mask lower levels of asbestos," says Segrave. "A method was needed to address soils where an accurate assessment of what is in the sample could be determined." ASTM D7521 covers procedures to: Identify asbestos in soil; Provide an estimate of the concentration of asbestos in the sampled soil; and Provide a concentration of asbestos reported as the number of asbestos structures per gram of sample. "ASTM D7521 can be used for property transfers (Phase I assessments), brownfields or Superfund sites for pre-cleanup and post-cleanup assessment, initial surveys of soils and downstream migration studies of soils," says Segrave. "Anyone who needs to test soils for asbestos will benefit from ASTM D7521. Laboratories will be able to test the samples the same way using the procedure, providing consistency and interpretation of results." Regulatory bodies may specify the use of the test method to ensure compliance for applicable local, state and federal laws regarding asbestos. Segrave notes that all interested parties are invited to participate in the ongoing development of ASTM D7521. "We are open to collaboration with others to improve the method or to use the method for other areas of interest, such as risk assessment," says Segrave. "Now that we have a method to determine asbestos in soil, this opens up the door for other potential research." ASBESTOS UPDATE: W.R. Grace Asbestos Liabilities Drop 2012 Profits ------------------------------------------------------------------ Jamie Smith Hopkins of The Baltimore Sun reports that Columbia, Md. chemical maker W.R. Grace & Co. reported profits of $94.1 million last year, a big slide from 2011 that was driven by the company's $365 million non-cash charge for asbestos liabilities. But the charge, announced in January, was lower than expected for the fourth quarter. Wall Street seemed pleased by the earnings report and the company's rosier outlook for 2013 -- Grace's stock was up nearly 4% in late morning trading on Wednesday, Feb. 6, to about $75.40 a share. The company said it expects adjusted earnings before interest and taxes for this year will rise 8% to 12% over the same measure last year. Grace has been growing through its years-long bankruptcy and ended 2012 with more than $1.3 billion in cash and cash equivalents. Grace earned net income of $1.23 a share last year, compared with $3.57 a share the previous year. ASBESTOS UPDATE: CSX Transportation Moves to Triple Jury Award -------------------------------------------------------------- John O'Brien of The West Virginia Record reports that the latest post-trial battle in the racketeering case against Pittsburgh asbestos attorneys and a Bridgeport radiologist concerns the possible tripling of the jury award. Though attorneys Robert Peirce and Louis Raimond and radiologist Ray Harron want a new trial or for a December jury verdict to be set aside, CSX Transportation says the verdict should be tripled and the defendants should pay its attorneys fees. CSX filed its motion to treble, or triple, the $429,240.27 on Jan. 11 in the U.S. District Court for the Northern District of West Virginia. The new total would be $1,287,721.41. Federal law allows the tripling of damages reached in a Racketeer Influenced and Corrupt Organization, the motion says. "(S)uch an amendment would be improper for the reasons explained at length in Defendants' motion for judgment as a matter of law or, in the alternative, for a new trial, because the underlying verdict is not in fact based on sufficient admissible evidence to support the essential elements of CSX's civil RICO claims, was achieved based on improper statements and arguments from counsel, and because Defendants are entitled to a new trial because the verdict was against the weight of the evidence and was a miscarriage of justice," the response filed by Peirce and Raimond says. Because the post-trial motions are still pending, U.S. District Judge Frederick Stamp should deny the motion, the attorneys say. On Dec. 20, an eight-person jury found Peirce, Raimond and Harron committed racketeering, conspiracy and fraud and ordered them jointly and severally liable for a penalty of $429,240.27. CSX's original complaint, filed in 2005, said Peirce's firm hid nine fraudulent claims among other lawsuits filed by the law firm in West Virginia. The nine lawsuits were filed and settled from 2000-2006. U.S. District Judge Frederick Stamp granted summary judgment to the Peirce firm in 2009, ruling a four-year statute of limitations began when the Peirce firm began targeting CSX. However, nearly two years ago, the U.S. Court of Appeals for the Fourth Circuit overturned that decision and gave new life to the lawsuit. The U.S. Supreme Court declined to hear the Peirce firm's appeal of the decision. CSX amended its complaint to include additional claims it said were fraudulent. The Peirce firm filed counterclaims against the company that said it was engaging in fraud by bringing and conducting the lawsuit, though the jury ruled for CSX on them. If the verdict is allowed to stand, the asbestos attorneys ask that the damages amount be reduced to $95,368.98. The attorneys had previously asked that CSX not be able to recover any damages on RICO claims that post-dated July 5, 2007. If there were a racketeering scheme, CSX knew about it by then, they argued. The proposed reduction in the verdict amount represents a subtraction of damages for claims after the date, based on legal billings submitted by the company. On Jan. 21, CSX asked the court to order the defendants to pay its attorneys fees and litigation costs -- $9,751,838 and $923,094, respectively. "Two points bear mentioning at the outset," the motion says. "First, the fees and expenses that CSXT is seeking are directly attributable to the complexity and duration of the case and the manner in which the defendants litigated it. "Indeed, fully one-third of the total fees CSXT is seeking were caused by the Lawyer Defendants' unnecessarily broad post-remand discovery demands. "Second, the amount CSXT is seeking is substantially less than the total fees CSXT actually incurred and paid in connection with this case. In particular, CSXT has carefully reviewed its billing records and excluded from this motion more than $2.5 million in various fees and expenses." In 2005, federal court judge Janis Graham Jack made national headlines when she uncovered duplicate and fraudulent silica diagnoses in her Texas courtroom. Many of those diagnoses were made by Harron and were made on plaintiffs who had already brought asbestos claims. In Jack's opinion dismissing the claims, she said "These diagnoses were driven by neither health nor justice -- they were manufactured for money." Following Harron's admission that he did not even make the diagnoses of the patients whose X-rays he read, Jack noted that most of "these diagnoses are more the creation of lawyers than doctors." CSX's lawsuit was filed later that year. ASBESTOS UPDATE: Treatment Study Links Fibro, Iron, Mesothelioma ---------------------------------------------------------------- Mesothelioma News relates that it has been known for decades that asbestos exposure can cause diseases such as lung cancer and mesothelioma, a cancer of the lining of the lungs and abdominal cavity. Mesothelioma is still very difficult to treat, primarily because there is still much to learn about why asbestos triggers cancer growth. When asbestos is either inhaled or ingested, doctors are still not sure what exactly causes the change from healthy tissue into malignant cancerous cells. However, a recent study may have discovered a link to asbestos exposure and the role of iron in the human body. According to an article published in Scientific Reports, a team of researchers in Italy has discovered when asbestos fibers inhabit the lungs, it can create deposit of iron proteins in the body. The existence of iron deposits within the body appears to be a trigger in the formation of small masses of mineral matter referred to as "asbestos bodies." The study looked at the tissue of 10 shipyard workers who had been exposed to asbestos. Upon examination, they discovered varying elements of iron concentration and distribution in the patients' lungs. Their report concluded that long-lasting asbestos bodies caused the mobilization of iron into surrounding cells. Iron is an important element and plays an essential role in our bodies' metabolism. Too much fiber, however, can be toxic to the body. The discovery of the relationship between asbestos, iron deposits and the development of mesothelioma may be key to discovering better treatments for the disease. A Japanese study conducted in 2012 also lends to the theory that the concentration of iron directly correlates to the development of mesothelioma. A team of Japanese researchers increased the levels of iron in the bodies of laboratory rats that had been exposed to asbestos. The rats with elevated iron developed mesothelioma more quickly than those with lower iron levels. Mesothelioma is an aggressive form of cancer that is difficult to treat and typically met with low survival rates. As more medical researchers develop a deep understanding of the development of mesothelioma and the role of iron in creating malignant cancer cells, more medical advancements are possible in the area of mesothelioma treatment. Discoveries such as this one represent major steps in learning how to better treat asbestos patients and give hope to those suffering from mesothelioma and their family members. As part of our commitment to those suffering from asbestos disease, the mesothelioma law firm of Baron and Budd is dedicated to providing the most current information on mesothelioma treatment. The law firm is a proud sponsor of the National Comprehensive Cancer Network (NCCN) as well as several other medical organizations dedicated to mesothelioma research and treatment. ASBESTOS UPDATE: Mud Engineer With COPD Recalls Exposure to Flosal ------------------------------------------------------------------ Jane Mundy at LawyersandSettlements.com reports that Les had a long and successful career as an asbestos mud engineer, but he's paying for it now. He was diagnosed with chronic obstructive pulmonary disease (COPD), but it could be a whole lot worse. Many of his co-workers exposed to asbestos -- from rigs to mines -- have succumbed to asbestos mesothelioma. Les worked with asbestos drilling mud on oil rigs in the Gulf for 15 years, and he has been around asbestos, in one form or another, for most of his life. "I was hired by the Milchem Mud Company as a mud engineer; my job was to keep the properties of the mud weight from blowing out the well and to stabilize the hole," says Les. "I learned a lot about asbestos and clay chemistry on the job, including the dangers of asbestos later on. "I was in my late 20s when I got my first job back in 1961, and I quit in 2002. I heard about the dangers of asbestos years after I was exposed to it, sometime in the 70s. We didn't think anything was wrong with it and there was no preventive action. We just sat there and breathed in this stuff -- it was like sitting in a sandstorm. "We used Flosal. They were 50 lb bags of white fibrous powder. When we dumped the bags into a mixing hopper, the air was full of particles floating around everywhere -- we were covered in the stuff. There was no breathing apparatus back then. We had no safety equipment; in fact, the only time we wore goggles was when we mixed caustic soda, not even when we mixed Flosal, because we didn't know that it was full of asbestos fibers. I remember that you had to mix it real fast in that room, and there was no place to go." (Flosal contained 85-95 percent asbestos and was used as a drilling mud additive. The product was a viscosifier, and was used to increase the viscosity of (to thicken) drilling mud fluids. In the lawsuit PHILLIPS 66 CO. v. LOFTON (94 So.3d 1051 (2012), a jury found in favor of plaintiff Troy Lofton, who claimed he suffered asbestosis as a result of exposure to Flosal.) Although Les doesn't have asbestosis, his "golden years" have been taken from him. "I've had my fair share of health problems," he says. "I was diagnosed with COPD in the late 90s and I have been on oxygen for more than 10 years. It first affected me when I was working in deep water on the drilling rig and I could barely climb the stairs on the rig. I thought I would have to quit. "I had stents put in my heart after I failed the stress tests. And I still didn't know that my condition was related to asbestos. I was a smoker but I quit in 1996. Doctors say that your COPD will get better when you quit smoking but mine got worse, gradually. I figure that being a smoker will impact an asbestos lawsuit, but because I got worse instead of better, I think asbestos is still floating around my lungs. However, I don't want them to do an autopsy on my lungs -- yet." Les says he is now pretty much housebound, although he has a portable oxygen tank and uses a walker. "I have a generator in the house and it is connected to a hose, so it's like being on a leash," he says, laughing. "Sad but true." "Seriously, when I first heard about the dangers of asbestos and how we mixed Flosal in that room without any safety precautions, I was upset. That impacted my life. The Flosal makers and Melcham should have told people as soon as they knew. They should have given us protective masks. I can't remember when we quit using Flosal but I do remember hearing that the product was bad for us. I googled Flosal a while back and found that it is still being made in Germany. So it is likely being used in other countries like India and Columbia. That is a crime." ASBESTOS UPDATE: Fibro Closes Thunder Bay School's Academic Wing ---------------------------------------------------------------- Tbnewswatch.com reports that an asbestos discovery inside Dennis Franklin Cromarty High School in Thunder Bay has left staff and students without the use of several classrooms. According to Principal Jonathan Kakegamic, the discovery was made in January, in the ceiling tiles of one of the school's computer labs. He says the room in question was immediately closed off to staff and students, but now, on the advice of a consultant, school officials have closed off the entire academic wing of the building. That includes 10 classrooms. Kakegamic notes, however, that no classes have been cancelled. They're simply being held in other areas of the school. He expects things to be back to normal within the month. Kakegamic adds there was talk of closing the school entirely, but ultimately that was deemed unnecessary. Chiefs of the students' home communities have been notified of the discovery. ASBESTOS UPDATE: Procedural Changes Cut Down Mass Torts in Philly ----------------------------------------------------------------- Chris Mondics of The Inquirer reports the flood of out-of-state lawsuits filed in Philadelphia over alleged asbestos injuries and defective pharmaceutical products has slowed dramatically after a series of procedural changes to reduce the case backlog of the city's Court of Common Pleas. Asbestos and pharmaceutical filings, called mass torts, declined from a high of 2,690 in 2011 to 816 in 2012, according to Judge John Herron, administrative head of the court's trial division. "From the court's perspective it is an excellent reversal of the trend," Herron said. "There were uncontrollable filings and we were very pleased to see that we could bring the flow down." The changes were set in motion early last year by Herron and other court leaders out of concern that the city had attracted an avalanche of filings by out-of-state lawyers. The city's reputation for high jury awards and lax oversight in some instances proved a powerful lure, Herron said. As a result, he deferred action on the awarding of punitive damages in asbestos cases and, for a short time, ordered that all discovery take place in Philadelphia. The discovery restriction was modified, but the court retained the rule on punitive damages and other changes, including a requirement that asbestos cases be consolidated in groups of eight to 10 with identical medical issues. In each group, only three are permitted to go to trial, with the others settling. If those nontrial cases fail to settle, the group is dissolved and relisted for future trials. The rule changes apply to the Complex Litigation Center, a division of the court established in the early 1990s to handle the then-growing number of asbestos cases. The idea was that a separate court division with its own full-time judges was needed to handle cases that involved complex science and uncertain legal precepts. The center later came to handle pharmaceutical cases as well, and gained a national reputation for legal sophistication and efficient processing of a huge volume of highly technical cases. The legal basis for many of these filings is the fact that many pharmaceutical companies are based in the region or have operations here. There is a long history of asbestos litigation here that traces back to the Philadelphia Naval Shipyard, where asbestos was used in shipbuilding. But there has been a backlash as defense lawyers alleged that the system was tilted toward big awards for defendants. The American Tort Reform Association (ATRA), an advocacy group representing the National Federation of Independent Business, the American Medical Association, and other interests, for two years running branded Philadelphia the nation's number-one "judicial hellhole," asserting that its plaintiff-friendly climate resulted in over-sized jury awards and settlements. Philadelphia juries have the reputation among plaintiffs' lawyers for giving larger awards than juries outside the city, although ATRA has since removed its Philadelphia designation. Herron contended the changes were not intended to favor one side or the other in the debate over the fairness of justice in Philadelphia, but simply to reduce a substantial backlog of cases. Herron said Philadelphia juries and judges should be primarily adjudicating the cases of Pennsylvania plaintiffs, not plaintiffs from out of state. "We want our jurors hearing Pennsylvania cases, and not deciding the case of a Utah plaintiff," Herron said, "and that is what has been happening." ASBESTOS UPDATE: CA Ruling Jeopardizes Travelers' $420.4 MM Award ----------------------------------------------------------------- Joseph Ax of Thomson Reuters reports that The New York Court of Appeals on Thursday, Feb. 7, said a trial must determine whether Travelers Cos deliberately structured a nearly $1 billion asbestos settlement to force its reinsurers to pay more than their fair share. The ruling, the latest development in one of the longest-running asbestos-related cases in U.S. history, throws into question a $420.4 million award Travelers won at an earlier stage in the case. The litigation pits a Travelers unit against various reinsurers, who have argued they should not be obligated to help cover nearly $1 billion that Travelers paid to cover asbestos claims against the company Western MacArthur. The reinsurers include American Re-Insurance Company, the U.S. unit of industry leader Munich Re, and units of the insurance and reinsurance company ACE Ltd. A trial court awarded Travelers $420.4 million in 2010, a decision that was upheld by the First Department, Appellate Division, last year. But the Court of Appeals said on Thursday, Feb. 7, that a trial is needed to determine whether Travelers had improperly designed the Western MacArthur settlement to maximize the amount of money it could recoup from reinsurers. In doing so, the court followed the reasoning of First Department Justice Sheila Abdus-Salaam, the lone dissenter in last year's ruling affirming the award. Nevertheless, the Court of Appeals affirmed that the reinsurers must help Travelers cover at least some portion of the settlement. A spokesman for Travelers declined to comment. Representatives for Munich Re and ACE did not have an immediate comment on the ruling. Calls to the lawyers representing all three companies were not immediately returned. The court said it was unclear whether Travelers had inflated the value of claims for certain asbestos victims while lowering those of others to increase its reinsurance coverage. In addition, the court ruled, the deal with Western MacArthur allocated all of the settlement to claims within Travelers' policy limits and nothing to "bad faith claims" stemming from Travelers' initial refusal to cover the asbestos damage. That decision came despite evidence that both sides recognized Travelers could face bad faith liability before the settlement was reached. The allocation worked to Travelers' advantage, since the claims within policy limits were covered by reinsurance. "In short, we find it impossible to conclude, as a matter of law, that parties bargaining at arm's length, in a situation where reinsurance was absent, could reasonably have given no value to the bad faith claims," Judge Robert Smith wrote for the unanimous five-member court. The court made it clear that it was not persuaded by the reinsurers' arguments that they have no obligation whatsoever to cover any of Travelers' expenses. The case stems from 1948, when a Travelers unit, United States Fidelity & Guaranty, wrote a liability insurance policy for Western Asbestos Co. Three decades later, people harmed by asbestos had begun to sue Western Asbestos's successor company, Western MacArthur. Western MacArthur sued USF&G and two other insurers in 1993 seeking indemnification. In 2002, the two sides settled the lawsuit, pushing Western MacArthur into bankruptcy. USF&G then sought indemnification from its reinsurers, leading to the current dispute. The case is United States Fidelity & Guaranty Company v. American Re-Insurance Co, New York Court of Appeals, No. 1. Attorney for Excess Casualty Reinsurance Association: Kathleen Sullivan -- kathleensullivan@quinnemanuel.com -- of Quinn Emanuel Urquhart & Sullivan. Attorney for American Re-Insurance Company: Herbert Wachtell -- HMWachtell@wlrk.com -- of Wachtell, Lipton, Rosen & Katz. Attorney for Travelers: Mary Kay Vyskocil -- mvyskocil@stblaw.com -- of Simpson Thacher & Bartlett. ASBESTOS UPDATE: Bidding Process for St. Joe's Abatement Underway ----------------------------------------------------------------- Chelsea Davis of The Ottumwa Courier reports that St. Joseph Hospital is now an empty shell. Suzie Wood, executive director of development at Ottumwa Regional Health Center, said the perimeter of St. Joe's is secured by a fence, and the entire interior has been cleared out. "They've cleaned out all of the medical records and any other storage," she said. ORHC has also started the bidding process for asbestos abatement. "It's an old building, so asbestos is in the walls, it's in the flooring," Wood said. "Once it starts crumbling, decaying or falling apart, or when you start hammering into the walls -- the asbestos is now out." She said there is no way to save the building. "We have gone through that process and had several engineers come out and take a look, but there's no possible way to save it," she said. Once the contract for asbestos abatement is secured and the 16 active and non-active antennas have been removed from the roof, the hospital will begin the bidding process for demolition. "But we will not be imploding the building," she said. "First they'll take down the inside. Then it will be a few weeks' process to take the outside down. When we start doing it, people won't even realize it because it starts on the inside. It's right in the middle of a residential area, so imploding it is not an option because of all the dust, pollution and broken windows." Once the new communications tower is erected, the antennas for 911, city, county and ORMICS will be moved. "The process may take awhile," she said. "We're just waiting for whoever is putting the new tower up to get that done. We're not in any hurry. Those are key communication antennas up there, so we're certainly not going to do anything until they're removed." She doesn't know the cost of demolition yet, though several quotes have come through. "They've been a very wide range," she said. "It could be six to seven figures." Recently, all of the items from the time capsule opened last July, as well as a few more items found when cleaning out the hospital, were donated to the Wapello County Historical Museum and are currently on display. Wood also said a couple hundred people have purchased bricks from St. Joe's. "As soon as the hospital begins its demolition, we'll be removing bricks and cleaning them so we can give them to folks who have purchased them," she said. Those wanting to purchase a brick, which will each cost $5, can call the hospital at 641-684-2300 and ask for Wood. All money raised from the sales will go to the American Cancer Society. While there have been several speculations about what the property will be used for after St. Joe's is removed, Wood said nothing has been solidified yet. ASBESTOS UPDATE: Woodsreef's Mine Road Dispute Nears Decision ------------------------------------------------------------- Catherine Clifford of ABC News relates that a report weighing up if the road through Barraba's Woodsreef asbestos mine should close will be presented to Tamworth Regional Council on Feb. 26. The NSW government and the Woodsreef Taskforce want Crow Mountain Road, or Mine Road as it's better known, closed for health and safety reasons. Last year, a road closure application was made by the Minister for Resources & Energy to the Minister for Primary Industries to close a section of the road. As the local roads authority, Tamworth Regional Council must, under the Roads Act, determine if it supports the request for closure. More than a dozen submissions have been received by private individuals, groups and other government agencies. Council's Assistant General Manager and General Counsel, Peter Thompson, says Council has undertaken extensive research for the report. He says during the investigation Council has learned its public liability insurance does not cover Crow Mountain Road and any potential future claims arising from exposure to asbestos. Peter Thompson says this is one of the many factors that must be considered before a determination can be made. "The report will be a lengthy report because it will cover the submissions themselves and the points that they raise and also issues that are particular to the Council," he said. "Probably the key issue for Council is that insurance policies that cover Council expressly exclude the situation that the mine road is in, such as its connection to asbestos from a mining activity." Peter Thompson says the exclusion arose out of the claims that James Hardie faced. "After that case, all insurance companies went back and reviewed their policies and now they have a very specific exclusion," he said. But Peter Thompson says there's a community living in Barraba, some of whom are strongly opposed to the closure of Crow Mountain Road. He says any impact the road's closure may have on their day-to-day lives and their businesses must also be taken into account in the report. ASBESTOS UPDATE: LCAVC Reaches Out to Non-Smokers Exposed to Fibro ------------------------------------------------------------------ The Lung Cancer Asbestos Victims Center says, "Of the approximately 200,000 US citizens that are diagnosed with lung cancer each year, we believe about one tenth, or 20,000 of these victims now have lung cancer because they were exposed to asbestos decades ago, on the job, or in their workplace. We are especially focused on US Navy Veterans, or workers that worked in any type of manufacturing, or industrial facility, where asbestos was everywhere, and who also were non smokers, or quit smoking decades ago. The financial compensation claims for these types of lung cancer victims can be in the tens of thousands of dollars or more." If a victim of any type of lung cancer had long term exposure to asbestos in their workplace the Lung Cancer Asbestos Victims Center will direct the victim, or family members to a very capable law firm, that has an established record of achieving superior results for their clients. The group says, "For nonsmokers who have been exposed to asbestos in their workplace the risk of lung cancer is five times that of unexposed workers. The types of victims we hope to help are US Navy Veterans, who were exposed to asbestos on a US Navy ship, power plant workers, manufacturing workers, or any other type of worker who had significant exposure to asbestos in their workplace." For more information lung cancer victims, or their family members are urged to call the Lung Cancer Asbestos Victims Center at 866-714-6466. Important Note From The Lung Cancer Asbestos Victims Center: "We desperately need family members, or the adult children to ask of a Dad, or Mom now diagnosed with lung cancer, if they were exposed to asbestos on the job in the 1960's, 1970's, or 1980's -- especially if they are a non smoker, or quit smoking over a decade ago. There really can be significant financial compensation for these types of individuals, and we are trying to help." The Lung Cancer Asbestos Victims Center says, "Aside from the US Navy, other high risk workplaces for asbestos exposure include shipyards in California, Virginia, or Washington State, power plants, manufacturing factories in Ohio, Michigan, Indiana, or Illinois, chemical plants in Louisiana, or New Jersey, oil refineries in California, or Texas, smelters in West Virginia, Montana, or Idaho, aerospace manufacturing facilities in California, Washington, or Kansas, demolition construction sites, railroads, automotive manufacturing facilities, or auto brake shops. With lung cancer caused by asbestos exposure the lung cancer may not show up until decades after the exposure. Many victims never smoked, and they never connected the dots between the asbestos exposure, and their lung cancer. As long as the victim, or their family members can prove the exposure to asbestos, we will do everything possible to help them get what might be significant financial compensation." For more information please call the Lung Cancer Asbestos Victims Center at 866-714-6466. http://LungCancerAsbestosVictimsCenter.Com ASBESTOS UPDATE: Fibro Found in Christchurch's Isaac Theatre Royal ------------------------------------------------------------------ Charlie Gates of The Press (NZ) reports that asbestos has been found in the Isaac Theatre Royal in central Christchurch. White asbestos was found in fiber cement sheets in an old projection room in the foyer of the theatre. The area has been cordoned off. Specialists from Ward Demolition will remove the small amount of asbestos and theatre chief executive Neil Cox said deconstruction would continue this month. The theatre is being restored and is scheduled to reopen in the second quarter of next year. The historic facade will be preserved, but the foyer behind will be deconstructed. The 1928 marble staircase in the foyer will be preserved and encased. ASBESTOS UPDATE: Fly-Tipping Trio Given Suspended Jail Sentences ---------------------------------------------------------------- The Inquirer (UK) reports that two waste operators running an illegal site and a driver have been given suspended prison sentences on Thursday, Feb. 7, after the Environment Agency found that asbestos had been fly-tipped around Essex, Hertfordshire and Kent. A1 Bins and Waste Ltd's director David John Tuffen and manager Nigel Lee Hickman both pleaded guilty to running an illegal site at Towerfields Business Park in Benfleet, where Environment Agency officers found 72 large skips full of asbestos waste. The driver, Moses Benjamin Brede, pleaded guilty to dumping five loads of waste asbestos. Tuffen was sentenced to two years in prison, suspended for two years, and ordered to carry out 200 hours unpaid work. Hickman was given an 18-month prison sentence suspended for two years and ordered to carry out 200 hours unpaid work. Brede was sentenced to 12 months prison for each of five offences to run concurrently and suspended for two years. He was also ordered to pay GBP500 contribution towards costs. A hearing to deal with a proceeds of crime application has been adjourned to later this year after which any fines for duty of care offences and any costs will be imposed on the waste operators. Tuffen is of The Oaks, Billericay and Hickman from Bryn Coch, Port Talbot. Brede is from Cappel Lane, Stanstead Abbotts, Ware. Chelmsford Crown Court heard at an earlier hearing that the company had been in financial difficulty towards the end of 2008. Waste asbestos was taken back to the Towerfields yard to bulk it up and store it there. Tuffen and Hickman also pleaded guilty to failing to prevent the fly-tipping of waste asbestos on six occasions and asked the court to take into consideration a further seven asbestos dumping offences. Hickman also asked for one offense of using false waste consignment notes to be taken into consideration. Tuffen, sole active director of the company, told investigating officers he had sold a vehicle, later seen fly-tipping asbestos, to Brede, who offered to do work for A1 Bins for a good rate. Hickman, transport manager for the company, said they employed Brede when it was busy between February and May 2009. He said he was not aware that a permit was needed to store the waste as it was only a temporary measure. There was no evidence of waste being disposed of legally between December 2008 and July 2009. A1 Bins advertised as a specialist asbestos waste transport and disposal company. This gave the impression of knowledge and trustworthiness. The court heard that underpinning that trust was the supply of what appeared to be legitimate invoices and consignment notes showing that the hazardous waste had been taken to and signed for by the Oxfordshire landfill site. These were false. Mr. Sailesh Mehta, prosecuting for the Environment Agency, told the court that when officers visited the illegal site in May 2009 they found 72 skips, most of which contained waste asbestos. Some asbestos was also on the ground. Samples taken showed that it included white, blue and brown asbestos. Waste consignment notes were found in the office covering a period when no evidence could be confirmed of legitimate disposal of waste by A1 Bins. Asbestos had, in fact, been dumped twice in Norton Road, Stevenage; at Jodrell Way, Thurrock; Highways Depot, Stanford-le- Hope; twice at Manor Way, Swanscombe, Kent Welwyn Garden City, Thurrock Lakeside, other Thurrock sites, Tilbury and Dolphin Quarry between March 24 and April 26, 2009. In total the company cleared 361.7 tons of waste containing asbestos from the Towerfields site, at a cost of about GBP48,436. Judge Charles Gratwicke said nobody in the court could not feel angry towards the defendants. "Each of you has not paid the slightest regard for the regulations. You all flouted the law for financial gain putting public health at risk." After the hearing, the Environment Agency's environmental crime team leader Lesley Robertson said: "We take the problems of illegal waste very seriously. "During this investigation we worked in partnership with other agencies including Stevenage Borough Council, Thurrock Council, Essex Police and other regions within the Environment Agency to gather evidence against those believed to be committing these offences. "This case was made worse by the hazardous nature of the waste, namely three types of asbestos, which was being illegally stored at the site in Benfleet, further aggravated by the fact that the company the defendants operated claimed to be 'specialist contractors for the disposal of asbestos waste', preying on others' trustworthiness. "This case should also be a warning to legitimate businesses, to ensure that they fulfill their duty of care when employing a business or person to dispose of their waste, including auditing any paperwork that they should receive for the disposal of the waste -- don't be afraid to ask the necessary questions." ASBESTOS UPDATE: Hopeman Brothers Faces Breach of Contract Lawsuit ------------------------------------------------------------------ Tia Benton of The Louisiana Record reports that a local shipbuilder is suing a company that makes furniture for ships alleging breach of contract. Avondale Industries, Inc., filed a lawsuit against Hopeman Brothers, Inc., in the Orleans Parish Central District Court on Dec 4. The plaintiff claims Hopeman breached its indemnity contract by its failure to provide defense and indemnity of claims brought against the plaintiff in an asbestos suit. The defendant is accused of breach of contract. An unspecified amount is sought for all damages reasonable in the premise. Brian C. Bossier -- bbossier@bluewilliams.com -- of Blue Williams, LLP is representing the plaintiff. This case has been assigned to Division M Judge Paulette R. Irons. Case no. 2012-11277. ASBESTOS UPDATE: Victim Exposed to 2nd-Hand Fibro Awarded $1.1 MM ----------------------------------------------------------------- Pat Guth for the Mesothelioma Cancer Alliance reports that the King County, Washington case of a woman whose husband brought home asbestos dust on his clothes has resulted in an award of $1.1 million for the plaintiff, who is dying of asbestos-caused cancer. According to an article in the For Mill Times, the 89-year-old woman, Phyllis Granville of Lynnwood, Washington, was consistently exposed to asbestos whenever she handled the work clothes of her husband Donald, who long worked as a tile installer for various companies. Prior to the late 1970s, floor and ceiling tiles often contained asbestos, an ingredient that aided in durability and fire resistance. Granville brought her case against 13 different defendants, a variety of companies who both manufactured and/or sold asbestos- containing tiles. The elderly woman told the court that she never expected that shaking out and then washing her husband's dust- covered clothes would result in her spending her last years with a debilitating disease like mesothelioma, which has traditionally been very hard to treat and nearly always results in a quick death sentence. "I never imagined Donald's work would ever end up giving me cancer," Phyllis stated. "The manufacturers didn't warn him about the risk of bringing asbestos home with him. It's hard enough for us to start battling my mesothelioma, but now Donald is afraid he's going to contract it, too." The trial lasted four weeks and is one of a growing list of cases filed by individuals who didn't have direct exposure to asbestos but rather suffered exposure at the hands of another party, one who had no idea that they were harming a loved one by their actions. This secondary exposure most often affects women of Phyllis's age who spent much of their married life caring for the needs of their husband. Similar cases have been seen among woman married to construction workers, auto mechanics, insulators, and others who worked with asbestos on a regular basis. ASBESTOS UPDATE: Specialty Products' Fibro Debt Tops $1.1 Billion ----------------------------------------------------------------- Lance Duroni of Law360 reports that bankrupt Specialty Products Holding Corp. has at least $1.1 billion of current and projected asbestos liability, according to a brief filed Wednesday, Feb. 6, in Delaware bankruptcy court by a committee representing asbestos claimants, a number far above the company's own estimates. In the brief, the official committee of asbestos personal injury claimants, joined by a representative for future claimants, put the company's total asbestos liability between $1.1 billion and $1.25 billion, net present value. ASBESTOS UPDATE: Risk Study on Libby Abatement Out In 2014 ---------------------------------------------------------- The Associated Press reports that federal officials anticipate finishing by late 2014 a risk study to guide the cleanup of asbestos-contaminated Libby, Montana, after a panel of scientists backed draft results that say even a minuscule amount of the substance can lead to lung problems. The long-awaited document will determine when work can end on the cleanup of asbestos dust from a W.R. Grace & Co. vermiculite mine outside this northwestern Montana town. Hundreds of people in and around Libby have died from exposure, and many more have been sickened. The cleanup so far has cost more than $447 million since it started in 1999. Environmental Protection Agency toxicologist Deborah McKean says the agency will complete its risk study earlier if it can, possibly by the end of this year. But she says the EPA first must do additional work recently recommended by its Science Advisory Board, a group of outside scientists who spent more than a year deliberating the agency's preliminary findings. Meanwhile, the cleanup grinds on. At least 80 and up to 100 properties in town are queued up for work this year, said EPA project manager Rebecca Thomas. Several hundred properties still need to be addressed, and that list could grow significantly depending on the outcome of the risk study. Work on the mine site outside town has barely begun. It closed in 1990 and remains the responsibility of W.R. Grace. * * * Despite Libby's many deaths, the science board said the EPA was right to use a less drastic benchmark, lung scarring, to determine how much asbestos poses a risk. That could have implications far beyond the town itself. Dozens of sites across the U.S. received or processed vermiculite from Libby's mine, which was used as insulation in millions of homes across the U.S. The science board also said the agency should gather more data to back up its position. W.R. Grace and industry groups have criticized the EPA's proposal for a strict new standard as unjustified and impossible to attain. The agency has not yet formally responded to those comments. McKean said she did not expect a significant change to the agency's determination that exceeding extremely low levels of airborne asbestos -- 0.00002 fibers of the mineral per cubic centimeter -- raises the risk of lung-scarring. "They are asking us to bolster our decision," McKean said. She added that final exposure standards won't be established until additional work is done. It will take another six months after that for the study to be completed, she said. The town remains under a first-of-its kind public health emergency declaration issued by Environmental Protection Agency administrator Lisa Jackson in 2009. The deaths are expected to continue for decades due to the long latency of asbestos-related diseases (ARD). ASBESTOS UPDATE: Consultant Maintains Fibro Alert at Cwmcarn High ----------------------------------------------------------------- BBC News South East Wales reports that a company which raised concerns about asbestos leading to the closure of a Caerphilly county school has criticized the findings of further tests that say it is "essentially uncontaminated". Cwmcarn High School shut in October after a report said asbestos posed a threat to health. The Health and Safety Executive (HSE) carried out tests which indicated the risk to pupils and teachers was low. But the firm advising the council says it still has safety concerns. Santia Consulting Ltd issued a statement on Friday, Feb. 8, saying the source of the asbestos contamination in the school "still remains in place consisting of substantially damaged asbestos insulating boards (AIBs) in the ceiling voids, damaged AIB in the room heaters and repeated damage of AIB window panels within classrooms." It has asked for more information about the type of report carried out on behalf of the HSE and whether it has gone far enough. The HSE said it wants to offer a response to the Santia's comments but needs more time to study them. The initial report by Santia Asbestos Management Limited had said airborne fibers at the 900-pupil school were 10 times higher than the accepted levels. However, on Monday, Feb. 4, it was revealed that a new report carried out on behalf of HSE by the Health and Safety Laboratory (HSL) -- which carries out scientific research -- that the method of testing carried out by Santia could "overestimate the levels of asbestos fibers as it does not distinguish between asbestos fibers and other fibers such as paper, clothing and skin cells." The HSE went on to say that any decision on whether the school should reopen "rests with the school governors", adding "it is their choice whether to use the HSL report in any decision making." The council and school asked for a further survey but it will be three weeks before any decision is made while students are currently being educated 12 miles away at Coleg Gwent's Ebbw Vale campus. The Santia statement said it was preparing a new report which "will provide more documentary evidence to support the actions taken." It added: "Both the council and Santia continue to believe that the safety of the children attending the school and those who work there cannot be guaranteed with the foreseeable risks in relation to asbestos still in existence." ASBESTOS UPDATE: Another Hazmat Dump Found in Clarence Valley ------------------------------------------------------------- Tim Howard of The Daily Examiner (Aus) reports that Lanitza residents suspect their isolated section of the Clarence Valley has been targeted for illegal asbestos dumping after another major find in the region on Feb. 8. Nymboida Rescue Team member Paul McIntyre came across the second find at the Mustard Pot, about 4km away from the initial find on Wim Van Vlymen's block near Qwyarigo Creek. Mr. McIntyre believes the two finds could be linked. "To me it looks the walls and guttering belonging to the roofing sheets dumped on Wim's place," he said. "There's not a lot of people out here, so people think they can come out here and dump their rubbish." Mr. McIntyre said the second dumping site appeared to be on Crown land or land under the control of the Clarence Valley Council. The council's deputy general manager Des Schroder said the prospect of the dumpers exposing themselves to contamination was a worry. "What they're doing is illegal, but it could have ramifications for them and their families if they're not following the correct procedures," he said. He said this involved a team of workers in special suits wrapping pieces of asbestos in plastic for disposal. The council waste disposal site was an accredited asbestos waste disposal site. Mr. Schroder said if this latest find was on Crown land, the council would organize the clean-up. He said the council had a deal with the Environment Protection Agency to reimburse it after the work was completed. Asbestos is a building product made from a naturally occurring fibrous mineral. A single fiber can cause lung cancer, mesothelioma or asbestosis. ASBESTOS UPDATE: La Collette Hazmat Stockpile Set for France ------------------------------------------------------------ This is Jersey reports that Jersey's stockpile of asbestos at La Collette could be disposed of in France, the Environment Minister has said. Deputy Rob Duhamel said that later this month States officers will visit two locations where the waste could be deposited. It was revealed last August that there were 217 rusted shipping containers of asbestos sitting at the reclamation site. Transport Minister Kevin Lewis, who is responsible for waste management and recycling, originally said that the waste would be buried in concrete-lined pits, but a decision was later made to try to export it. ASBESTOS UPDATE: ARD, Mesothelioma Issues in South Africa & China ----------------------------------------------------------------- Surviving Mesothelioma and Cancer Monthly reports that two new reports highlight the fact that mesothelioma and other asbestos- related diseases (ARD) are global issues. Reporting in a recent issue of Global Health Action, scientists from South Africa's National Institute for Occupational Health and the University of Witwatersrand in Johannesburg say the country is facing an epidemic of environmentally-linked asbestos-related diseases like mesothelioma because of abandoned asbestos mines. The same report also found that many of these mesothelioma patients are not receiving any compensation for their injuries. South Africa was once a top exporter of asbestos, which was used for thousands of industrial applications, including insulation, construction materials, asbestos cement, and friction products like brake and clutch pads. Although all of South Africa's asbestos mines are now closed because of the risk of diseases like mesothelioma, the new study suggests that they continue to pose a serious environmental hazard. The study's author examined the 146 environmental mesothelioma and asbestos disease claims submitted between 2003 and 2010 to one of two South African trusts set up to deal with such cases. Of those cases, 77 were malignant mesothelioma, the cancer of the mesothelial membranes that is considered the most aggressive of the asbestos-related diseases. Of those 77 mesothelioma cases, only 33 received any compensation. The records show that these patients had been exposed to asbestos in their homes or neighborhoods. "Mesothelioma was the most common disease diagnosed, but most cases were not compensated," observed the study's authors. "This highlights that there is little redress for individuals with environmentally-acquired asbestos-related diseases in South Africa." The study calls on the South African government to rehabilitate abandoned asbestos mines and the environment surrounding them in order to stop the epidemic of environmentally- linked asbestos-related diseases. At the same time, in China, researchers at the Chinese University of Hong Kong studying occupational exposure to asbestos say that "urgent efforts" must be made to increase regulations to protect workers from mesothelioma and other asbestos caused diseases. China has been the world's top producer and consumer of chrysotile asbestos although the national mortality rate for asbestos-related diseases is unknown. An analysis of recent studies found mortality rates for lung cancer in Chinese asbestos workers and miners to be four times higher than expected, but found "surprisingly few" cases of mesothelioma which the researchers say may be due to problems in diagnosis. In its early stages, mesothelioma may cause vague symptoms that make it difficult to diagnose. The Chinese researchers call for "improvements in diagnostic and systematic recording of the incidence and mortality of asbestos- related diseases" to decrease the future risk of mesothelioma and other diseases among asbestos workers. Although many countries have banned the use of asbestos, neither China nor the U.S. has done so. The World Health Organization estimates that 90,000 mesothelioma deaths annually are attributable to asbestos exposure. ASBESTOS UPDATE: Payout Cap Reduces $3MM Verdict to $0.98MM ----------------------------------------------------------- In the case captioned IN RE ASBESTOS LITIGATION: KELLY McCORMICK, individually and as Executrix for the ESTATE OF KIT L. McCORMICK, Plaintiff, v. CLEAVER BROOKS CO., INC., ET AL., Present Defendant, Nos. 91-MD-875, 04-CV-2405 (E.D. N.Y.), Judge Jack B. Weinstein of the United States District Court for the Eastern District of New York ruled that findings of the jury against Defendant Cleaver Brooks on total non-economic damages of $3,000,000 were excessive. The parties to the case, which arises from the exposure of Kit McCormick to asbestos while working on a variety of boilers at an Air Force base in Kansas and at other locations, have agreed that Kansas law will be applied at trial. Under Kansas law, the burden of proof with respect to the percentage of individual liability of defendant and other non-party persons contributing to the total damages must be established by the defendant through a preponderance of the evidence, Judge Weinstein said. Judge Weinstein ruled that the non-economic damages were appropriate when reduced pursuant to Kansas law to $500,000, the total amount of economic damages allocated against the Defendant of $480,000 was justifiable. Accordingly, total damages are $980,000. A copy of Judge Weinstein's Decision dated January 28, 2013, is available at http://is.gd/zsaqsBfrom Leagle.com * * * Silvia Hsieh of Lawyers.com reports that a judge has drastically reduced a $3 million jury verdict awarded to the widow of a worker who died from cancer after years of handling products made with asbestos. Companies have been ordered by juries to pay millions of dollars only to have the damages slashed by a judge after trial. Under "tort reform," many states have passed laws that limit how much an injured person can collect, such as by capping damages at a few hundred thousand dollars. Juries aren't told about such caps at the time of trial, so they go ahead and award what they think is right. After trial, a judge cuts the award based on state damages caps. That's what happened in this case. Kit McCormick worked on an Air Force base as a boiler tender, which involved installing and maintaining several boilers in six to eight small buildings over a long period of time. He developed mesothelioma, a deadly form of cancer caused by asbestos exposure. After his death, his wife Kelly sued boiler manufacturer Cleaver Brooks, which sold about a dozen types of boilers to the base. One of McCormick's co-workers testified he believed McCormick inhaled asbestos dust while handling firebrick that he installed and replaced in the boilers, and also from asbestos-laden insulation in the boilers' sheet metal jackets. The jury trial took place in New York but applied Kansas law because McCormick worked on the boilers in Kansas. Different states have passed their own laws limiting damages to victims in different kinds of cases. Under Kansas law, so-called noneconomic damages, such as pain and suffering, are capped at $250,000 for negligence, and a separate cap for wrongful death is $250,000. As a result, the most massive reductions were taken against the jury's original award of $1.5 million for noneconomic damages to $250,000, and another $1.5 million awarded for wrongful death to $250,000. The jury's total $3.8 million was reduced to $980,000. "The findings of the jury on total non-economic damages of $3,000,000 were excessive. They were appropriate when reduced pursuant to Kansas law to $500,000. The total amount of economic damages allocated against defendant of $480,000 was justifiable. The verdict of $980,000 was supported by the evidence," wrote Brooklyn U.S. District Court Judge Jack Weinstein. In addition to these general damages some 16 states have passed laws specifically protecting companies that purchase an asbestos- manufacturing company from liability. Lawyers who represent asbestos victims call it a "corporate bailout" for asbestos makers. ASBESTOS UPDATE: Burglars Steal Pneumatic Fibro Vacuum in Carlisle ------------------------------------------------------------------ BBC News Cumbria reports that an industrial vacuum cleaner stolen during a burglary in Carlisle was used to remove asbestos, police have warned. The yellow pneumatic cleaner was taken from the former Richard Rose premises in Harraby, over the weekend. Cumbria Police said they would carry a serious health risk to anyone coming into contact with it. Five others, also being used in the renovation and containing asbestos, were moved into a different room during the break-in. Officers have been appealing to anyone with information about the theft or the whereabouts of the item to contact them immediately, and not to touch it. ASBESTOS UPDATE: Israeli Ministry Fines IDF Over Fibro Outbreak --------------------------------------------------------------- Arutz Sheva (Israel) reports that the IDF responded to an order by the Environmental Ministry that they pay more than NIS 3 million in fines due to a failure to take care of an asbestos outbreak in a base in Be'er Sheva. "The IDF has been handling the asbestos outbreaks on bases for over a decade. The asbestos in Mahane Natan was recognized and reported to the Ministry of Environmental Protection by officials acting on behalf of the IDF." According to the IDF, army officials contacted the Environmental Ministry to figure out how to best eliminate the asbestos. ASBESTOS UPDATE: Building Unions Campaign for New Anti-Fibro Laws ----------------------------------------------------------------- Clay Lucas of The Age (Aus) reports that two out of three homes in Australia built between World War II and the early 1980s still contain asbestos and building unions are set to launch a campaign in Sydney demanding new laws to dispose of it. The unions will also renew a push for the creation of a federal asbestos authority. Renovators who do not realize their homes contain asbestos are still being subjected to deadly exposure, the Australian Manufacturing Workers Union and the Construction, Forestry, Mining and Energy Union say. Australia was the biggest user of asbestos between the 1950s and 1980s, and as a result it now has the highest incidence of asbestos-related cancer in the world, a rate that is still rising. The national secretary of the Australian Manufacturing Workers Union, Paul Bastian, said the threat from asbestos was still a risk to the community and more needed to be done to combat its effects. "The fact that asbestos-related disease is still killing people . . . means we really need to combat hidden traces of the deadly material in our homes and commercial buildings," he said. Many residents did not realize until they started work on their homes that they had asbestos in them. "They have been clad over -- they look like a normal building until you drill through it and you find an asbestos wall." The union wants the recommendations of a government report on asbestos that was completed in June to be fully implemented and funded. An assistant secretary for the CFMEU, Lindsay Fraser, said priority needed to be given to the removal of asbestos from government and public buildings. The review in June recommended asbestos in houses built before 1987 should be labeled to alert buyers, tenants and renovators. ASBESTOS UPDATE: HSE Slaps GBP4,000 Fine on Fibro Law Violator -------------------------------------------------------------- Jon Griffin of The BirminghamMail (UK) reports that a builder has been fined GBP4,000 for illegally removing and breaking up asbestos panels, demonstrating a 'complete disregard for the law,' a court heard. The Health and Safety Executive (HSE) prosecuted Nicholas Sharpe, trading as Sharpe Builders, after he exposed himself and others to potential danger by breaking up the panels from a house in Castle Bromwich. Solihull Magistrates' Court heard that HSE inspectors visited a house on Rover Drive in July 2012, following a call from a Solihull Council Environmental Health Officer about possible unlicensed asbestos removal work. A HSE investigation found that, during work to convert a garage into a living room, Mr. Sharpe had been wearing only a dust mask for protection as he removed a number of Asbestos Insulating Boards (AIBs) from the ceiling. He broke these into pieces and put the uncovered panels on the householder's driveway. Mr. Sharpe had no plan for the work and had not acquired a survey of the building, so did not know that the material was asbestos. The court was told Mr. Sharpe did not hold the necessary license to remove the asbestos boards, and failed to take adequate steps to prevent both exposure to and spread of asbestos fibers generated by his work. Nicholas Sharpe, of Rover Drive, Castle Bromwich, pleaded guilty to two breaches of the Control of Asbestos Regulations 2012. He was fined a total of GBP4,000 and ordered to pay costs of GBP1,100. ASBESTOS UPDATE: Cal State Releases 2013 Asbestos Building Report ----------------------------------------------------------------- Yvette Quintero of The Daily Titan reports that Cal State Fullerton released its annual asbestos building report that details the location and gives information on campus buildings that may or may not contain asbestos fibers. The 2013 report is compiled by CSUF's Environmental Health and Instructional Safety, in accordance with California's Notification Law and Safety Code Sections 25915. The law requires that notification be given for asbestos present in public buildings. University employees were notified in January of the presence of asbestos in various campus buildings. In general, buildings constructed before 1990, such as College Park, McCarthy Hall, Langsdorf Hall and the Humanities Building, are assumed to have been constructed with materials containing asbestos. Asbestos is a mineral used in building materials for its fire resistant properties. It may be present in insulation, tiling, hot water and steam pipes, carpets, or other construction materials. Colleen Wilkins, Environmental Health and Instructional Safety officer, said most asbestos on campus is found within floor tiles. If left undisturbed, asbestos does not pose a risk or health hazard to the campus community. "If it's in materials and no one is touching it, no one is playing with it, it's not really a problem for workers," said John Breskey, Ph.D., an assistant health science professor. The risk of exposure occurs when construction or deconstruction are underway and asbestos comes out of the materials and into the air. When this occurs, a removal job is scheduled. Willem van der Pol, Physical Plant director, said a removal job is typically triggered by another project. "A remodeling project can potentially cause the disturbance of asbestos and makes it, therefore, a priority for removal," Van der Pol said. In 2012, various removal jobs were conducted in McCarthy Hall and the Kinesiology and Health Science, Humanities and Visual Arts buildings. The removal jobs were completed in seven different months, with four of the jobs being completed during the course of the semester on weekends. "Most jobs are scheduled for breaks or summer because there are fewer people on campus," Wilkins said. "Jobs are done on the weekend because no one but the police are here." According to the U.S. Environmental Protection Agency, inhalation of asbestos fibers is the primary cause of asbestos-related disease. If fibers are not expelled through mucus secretions or coughing, they may become embedded in the lungs. The three major types of asbestos-related disease are Asbestosis, lung cancer and Mesothelioma. "It's a mineral . . . so your immune system can't break it down," Breskey said. "It tries to break it down, but it can't so it ends up making a lot of scar tissue and if you let that progress long enough over the course of years, you can actually end up getting respiratory diseases." To avoid health complications, many precautions have to be taken prior to removing asbestos. Removal must be done by specially trained individuals that are certified. Small removal jobs are done by Facilities Operations trade workers, while large projects are done by contractors specializing in removal. "We have a number of our trade workers who are trained in this kind of work and we do small jobs, typically as part of a maintenance activity," Van der Pol said. After extensive training, the abatement contractors set up a containment. This includes closing off the area with plastic or, if it is a single room, sealing the door and the air supply, Wilkins said. Jobs are prioritized according to the availability of the contractor. The cost of the removal jobs spans a variety of projects. ASBESTOS UPDATE: Mack Trucks, 60 Others Face Exposure Lawsuit ------------------------------------------------------------- Kyla Asbury of The West Virginia Record reports that a Huntington couple are suing 61 companies they claim are responsible for a asbestos diagnosis. Robert Leon Null was diagnosed with asbestosis on Feb. 7, 2011, according to a complaint filed Feb. 6 in Kanawha Circuit Court. Null and his wife, Geraldine Null, claim the 61 defendants caused his asbestosis. The plaintiffs claim Robert Null was exposed to asbestos and/or asbestos-containing products during his employment as an insulator and machinist from 1959 until this year. The defendants are being sued based on theories of negligence, contaminated buildings, breach of expressed/implied warranty, strict liability, intentional tort, conspiracy, misrepresentation and post-sale duty to warn, according to the suit. The Nulls claim Robert Null never smoked. Certain defendants are also being sued as premise owners and as Robert Null's employers for deliberate intent/intentional tort, according to the suit. The Nulls are seeking a jury trial to resolve all issues involved. They are being represented by Victoria Antion Nelson -- vantion@motleyrice.com --, Scott A. McGee -- smcgee@motleyrice.com -- and John D. Hurst -- jhurst@motleyrice.com -- of Motley Rice. The case has been assigned to a visiting judge. The 61 defendants named in the suit are 3M Company; A.W. Chesterton Company; American Electric Power Company Inc.; American Electric Power Service Corporation; Appalachian Power Company; Ashland Inc.; Beazer East Inc.; Borg-Warner Corporation; Brand Insulations Inc.; Certainteed Corporation; Cleaver-Brooks Inc.; Cooper Industries Inc.; Copes-Vulcan Inc.; Crane Co.; Crown Cork & Seal USA Inc.; Dravo Corporation; Eaton Electrical Inc.; Flowserve Corporation; FMC Corporation; Ford Motor Company; Foster Wheeler Energy Corporation; General Electric Company Inc.; Genuine Parts Company; Georgia Pacific Corporation; Goulds Pumps Inc.; Grinnell LLC; Hercules Inc.; Honeywell International; IMO Industries Inc.; Industrial Holdings Corporation; Ingersoll-Rand Company; ITT Corporation; Lockheed Martin Corporation; Mack Trucks Inc.; McJunkin Corporation; Metropolitan Life Insurance Company; Nitro Industrial Coverings Inc.; Ohio Valley Electric Corporation; Ohio Valley Insulating Company Inc.; Owens-Illinois Inc.; Rapid American Corporation; Riley Power Inc.; Rockwell Automation Inc.; Rust Constructors Inc.; Rust Engineering & Construction Inc.; Sargent & Lundy, LLC; Schneider Electric; State Electric Supply Company; Sterling Fluid Systems (USA) LLC; Tasco Insulations Inc.; UB West Virginia Inc.; Union Carbide Chemical & Plastics Company; Uniroyal Inc.; United Conveyer Corporation; United Engineers & Constructors and Washington Group International; Viacom Inc.; Vimasco Corporation; Warren Pumps Inc.; West Virginia Electric Supply Company; Yarway Corporation; and Zurn Industries Inc. Kanawha Circuit Court case number: 13-C-243. ASBESTOS UPDATE: US Initiative for Lung Cancer Victims Launched --------------------------------------------------------------- The Lung Cancer Asbestos Victims Center says, "We believe there are tens of thousands of US citizens who are diagnosed with lung cancer right now, where the contributing factor to the lung cancer was exposure to asbestos in the workplace, and these individuals may qualify for significant financial compensation. This is a national effort involving all lung cancer victims in all US states, with the only requirement being exposure to asbestos in the workplace. Our effort is not just about identifying victims of mesothelioma, it is about identifying any current victim of any type of lung cancer in the United States who had long term exposure to asbestos in their workplace." If a victim of any type of lung cancer had long term exposure to asbestos in their workplace the Lung Cancer Asbestos Victims Center will direct the victim, or family members to a very capable law firm, that has an established record of achieving superior results for their clients. For more information lung cancer victims, or their family members are urged to call the Lung Cancer Asbestos Victims Center at 866-714-6466. Important Note From The Lung Cancer Asbestos Victims Center: "In nonsmokers who have been exposed to asbestos, the risk of lung cancer is five times that of unexposed workers." The Lung Cancer Asbestos Victims Center says, "High risk workplaces for asbestos exposure include US Navy installations, or current, or former shipyards in California, Washington, or the state of Virginia, current, or former power plants in all US states, automotive industry manufacturing facilities in Ohio, Michigan, Indiana, or Illinois, chemical manufacturing plants in Louisiana, Texas or New Jersey, oil refineries in California, Washington, Louisiana, or Texas, aerospace manufacturing facilities in California, Washington, or Kansas, demolition construction sites, railroads, automotive manufacturing facilities, or auto brake shops. With lung cancer caused by asbestos exposure the lung cancer may not show up until decades after the exposure. Many victims never smoked, and we fear most current lung cancer victims have never considered their lung cancer could be linked to lung cancer. As long as the victim, or their family members can prove the exposure to asbestos, we will do everything possible to help them get what might be significant financial compensation." For more information please call the Lung Cancer Asbestos Victims Center at 866-714-6466; http://LungCancerAsbestosVictimsCenter.Com ASBESTOS UPDATE: CBS Corp. Moves Fibro Lawsuit to Federal Court --------------------------------------------------------------- Bethany Krajelis of The Madison / St. Clair Record reports that CBS Corp. has removed a Madison County asbestos lawsuit to federal court and asked a judge there to dismiss it. As the administrator of Richard Spells' estate, Richard Spells, Jr., in October 2012 sued CBS Corp., the successor by merger to the corporation formerly known as Westinghouse Electric Corp., and 30 other defendants. Spells, a Georgia resident, alleges that his decedent was injured, in part, due to his contact with asbestos-containing equipment during his time as a U.S. Navy machinist. He worked on several ships between 1958 and 1980, with a few breaks. According to the complaint, the Spellses first became aware that Richard Spells had developed lung cancer in May 2011 and learned it was caused by asbestos exposure. He died in June 2012. The suit accuses the defendants of failing to exercise care and caution for Spells' safety by including asbestos in their products when they knew or should have known about the dangers associated with exposure to asbestos. It seeks more than $50,000 and includes counts for negligence, willful and wanton conduct, conspiracy, negligent spoliation of evidence and strict liability. CBS Corp. asserts in its Feb. 7 notice for removal that the suit should be handled in federal court because it was acting under the authority of the government and has "a colorable federal law-based 'government contractor' defense to said claim or claims." In its answer to the complaint, CBS Corp. on Monday, Feb. 11, denied that it "caused or contributed to the decedent Richard Spells' alleged exposure to asbestos." The corporation offered nearly four dozen affirmative defenses and asked the federal court to dismiss the suit and award it costs. In addition, CBS Corp. asserts that Spells failed to state a cause of action supporting punitive or exemplary damages and that any award of punitive damages would violate constitutional safeguards provided to the defendants. Robert Sanderson and Daniel Donahue of Foley & Mansfield in St. Louis represent CBS Corp and Steven Aroesty -- SAroesty@NapoliBern.com -- of Napoli Bern Ripka Shkolnik in Edwardsville represents Spells. ASBESTOS UPDATE: Court Flips Order Denying Boeing's Dismissal Bid ----------------------------------------------------------------- The Court of Appeals of Washington, Division Two, in an opinion dated Jan. 29, 2013, reversed a lower court's ruling denying defendant The Boeing Company's motion for summary judgment dismissing a work-related personal injury suit arising from exposure to asbestos-containing products. The Court of Appeals granted Boeing's appeal after determining that it has met its burden to show that no disputed material facts exist in the action and that, the burden now being shifted to the Plaintiffs, a former Boeing employee and his wife, the Plaintiffs failed to meet the burden of raising a material factual dispute about whether Boeing had actual knowledge that the complained-of asbestos exposure was certain to cause injury and that Boeing willfully disregarded that knowledge. The Court of Appeals agreed with Boeing that Walston's claims should be dismissed because it was entitled to employer immunity under the State of Washington's Industrial Insurance Act (IIA), which created a swift and certain no-fault workers' compensation system for injured employees in exchange for granting employers immunity from lawsuits arising from workplace injuries. The case is GARY G. WALSTON and DONNA WALSTON, husband and wife, Respondents, v. THE BOEING COMPANY; and SABERHAGEN HOLDING, INC., as successor to TACOMA ASBESTOS COMPANY and THE BROWER COMPANY, Appellants, No. 42543-2-II (Wash.). A copy of the Court of Appeals' Decision is available at http://is.gd/eljt4Nfrom Leagle.com. The Appellants are represented by: William Brendan Murphy, Esq. 1201 3rd Ave Ste 4800 Seattle, WA 98101-3266 Tel: (206) 359-3672 Fax: (206) 359-7179 - and - Bruce Duplan Campbell, Esq. Katherine Carlson Wax, Esq. Eric David Miller, Esq. PERKINS COIE LLP 1201 3rd Ave Ste 4800 Seattle, WA 98101-3099 Tel: (206) 359-8000 Fax: (206) 359-9000 Email: BCampbell@perkinscoie.com KWax@perkinscoie.com EMiller@perkinscoie.com The Respondents are represented by: Matthew Phineas Bergman, Esq. Glenn S. Draper, Esq. Brian F. Ladenburg, Esq. Anna D. Knudson, Esq. BERGMAN DRAPER LADENBURG, PLLC 614 1st Ave Fl 4 Seattle, WA 98104-2233 Tel: (206) 957-9510 Fax: (206) 957-9549 Email: brian@bergmanlegal.com glenn@bergmanlegal.com matt@bergmanlegal.com annak@bergmanlegal.com - and - John Wentworth Phillips, Esq. John Matthew Geyman, Esq. PHILLIPS LAW GROUP PLLC 315 5th Ave S. Ste 1000 Seattle, WA 98104-2682 Tel: (206) 382-6163 (206) 382-1168 Fax: (206) 382-6168 Email: jphillips@jphillipslaw.com mgeyman@jphillipslaw.com ASBESTOS UPDATE: Pa. Ct. Denies GE's Summary Judgment Motion ------------------------------------------------------------ Judge Robert F. Kelley of the United States District Court for the Eastern District of Pennsylvania denied the motion for summary judgment filed by Defendant General Electric Company seeking to dismiss a personal injury action filed by Plaintiffs Terry and Jo Ann Cardaro arising from Terry Cardaro's exposure to asbestos- containing products manufactured by GE during his time working around those products. Judge Kelley found that, contrary to GE's assertion, the Louisiana Statute of Repose Sec. 2772 does not perempt the Plaintiffs' claims, and that a genuine issue of material fact exists in the case. The case is IN RE ASBESTOS PRODUCTS LIABILITY LITIGATION (VI): TERRY & JO ANN CARDARO, Plaintiffs, v. AEROJET GENERAL CORP., et al., Defendants, MDL No. 875, Civil Action No. 11-66763 (E.D. Pa.). Copies of Judge Kelley's Memorandum and Order dated Jan. 29, 2013, are available at http://is.gd/JsHGScand http://is.gd/z1hNnLfrom Leagle.com. ASBESTOS UPDATE: 20 Cases Remanded as Pretrial in MDL Concludes --------------------------------------------------------------- Twenty cases consolidated under the case captioned IN RE: ASBESTOS PRODUCTS LIABILITY LITIGATION (NO. VI), No. 3:11-986, MDL No. 875, were remanded to the courts where the cases were originally filed as all claims for punitive and exemplary damages were severed by the United States Judicial Panel on Multidistrict Litigation and that pretrial proceedings with respect to the remaining claims have been completed. MDL 875, In re: Asbestos Products Liability Litigation, involves issues relating to personal injury damages caused by asbestos products. It currently consists of about 6,000 cases transferred by the Judicial Panel on Multidistrict Litigation, which has been transferring cases to the Eastern District of Pennsylvania since 1991. Each case typically consists of claims by multiple plaintiffs against multiple defendants. Since its inception, the litigation has involved more than 100,000 cases and up to ten million claims, including land-based and maritime claims ("MARDOC"). A copy of the Order dated January 29, 2013, is available at http://is.gd/sHW8tHfrom Leagle.com. ASBESTOS UPDATE: Court Won't Appoint Receiver for Krafft-Murphy --------------------------------------------------------------- In an opinion dated Feb. 4, 2012, the Court of Chancery of Delaware entered a ruling in the long-running asbestos tort litigation against Krafft-Murphy Company, Inc., a Delaware company that dissolved more than a decade ago after ceasing operations for seven years. The opinion, according to the Court, addressed a question that has not yet been squarely addressed in Delaware law: namely, whether a receiver should be appointed more than ten years after the dissolution of a Delaware corporation where the dissolved corporation's only assets are liability insurance policies. In that case, petitioners, who are asbestos claimants represented by the Law Offices of Peter G. Angelos and who have pending individual claims against Krafft-Murphy, seek the appointment of a receiver for Krafft-Murphy based on the perceived existence of undistributed assets in the form of liability insurance coverage. Krafft-Murphy was involved for decades in the business of plastering and spray insulating and due to the nature of its business, it has been subject to hundreds of asbestos-related tort suits. Krafft-Murphy has moved in other courts to dismiss those asbestos-related tort suits that were filed more than ten years after its dissolution. The Court held that the law is clear that appointment of a receiver may be made at any time where a dissolved corporation has undistributed assets. The first inquiry, therefore, is whether insurance liability contracts are undistributed assets of a Delaware corporation that has been dissolved for more than ten years. To resolve that question, it must also be determined whether such a dissolved corporation is amenable to suits brought more than ten years after dissolution. Having examined Delaware's corporate scheme of dissolution, the Court concluded that Krafft-Murphy is not amenable to asbestos- related tort suits commenced more than ten years after its dissolution. Consequently, in the circumstances of the case, the insurance contracts are valueless, the Court said. Because Krafft- Murphy does not have any undistributed assets, the Court found tgat appointment of a receiver unnecessary. The case is IN THE MATTER OF KRAFFT-MURPHY COMPANY, INC., a dissolved Delaware Corporation, C.A. No. 6049-VCP (Del.). A copy of the Court's Opinion dated February 4, 2013, is available at http://is.gd/uPNFA4 The Petitioners are represented by: Raeann Warner, Esq. JACOBS & CRUMPLAR Wilmington, DE 19899 Tel: (302) 656-5445 Fax: (302) 656-5875 Email: raeann@jcdelaw.com - and - Jennifer L. Lilly, Esq. THE LAW OFFICES OF PETER G. ANGELOS Baltimore, MD - and - Jeffrey P. Wasserman, Esq. CICONTE, WASSERMAN & SCERBA, LLC Wilmington, DE 19899 Tel: (302) 658-7101 Fax: (302) 658-4982 Email: jwasserman@cicontewasserman.com - and - Daniel A. Brown, Esq. Eileen M. O'Brien, Esq. BROWN & GOULD, LLP Bethesda, MD 20814 Tel: (301) 718-4548 Fax: (301) 718-8037 Email: dbrown@brownandgould.com eobrien@brownandgould.com Krafft-Murphy is represented by: Francis J. Murphy, Esq. MURPHY & LANDON Wilmington, DE 19805-1267 Tel: (302) 482-4381 Fax: (302) 472-8135 - and - Joseph L. Ruby, Esq. LEWIS BAACH PLLC 1899 Pennsylvania Avenue, NW, Suite 600 Washington, DC 20006 Tel: (202) 659-7979 Fax: (202) 466-5738 Email: joseph.ruby@lewisbaach.com ASBESTOS UPDATE: Graham Corp. Continues to Defend Exposure Suits ---------------------------------------------------------------- Graham Corporation has been named as a defendant in certain lawsuits alleging personal injury from exposure to asbestos contained in products made by the Company. The Company is a co-defendant with numerous other defendants in these lawsuits and intends to vigorously defend itself against these claims. The claims are similar to previous asbestos suits that named the Company as defendant, which either were dismissed when it was shown that the Company had not supplied products to the plaintiffs' places of work or were settled for immaterial amounts. As of December 31, 2012, the Company remains subject to these asbestos-related claims, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended December 31, 2012. Graham Corporation (Graham) designs, manufactures and sells custom-built vacuum and heat transfer equipment to customers worldwide. ASBESTOS UPDATE: Rockwell Automation Still Defends Exposure Suits ----------------------------------------------------------------- Rockwell Automation, 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 December 31, 2012. The Company states: "We (including our subsidiaries) have been named as a defendant in lawsuits alleging personal injury as a result of exposure to asbestos that was used in certain components of our products many years ago. Currently there are a few thousand claimants in lawsuits that name us as defendants, together with hundreds of other companies. In some cases, the claims involve products from divested businesses, and we are indemnified for most of the costs. However, we have agreed to defend and indemnify asbestos claims associated with products manufactured or sold by our former Dodge mechanical and Reliance Electric motors and motor repair services businesses prior to their divestiture by us, which occurred on January 31, 2007. We are also responsible for half of the costs and liabilities associated with asbestos cases against the former Rockwell International Corporation's (RIC's) divested measurement and flow control business. But in all cases, for those claimants who do show that they worked with our products or products of divested businesses for which we are responsible, we nevertheless believe we have meritorious defenses, in substantial part due to the integrity of the products, the encapsulated nature of any asbestos-containing components, and the lack of any impairing medical condition on the part of many claimants. We defend those cases vigorously. Historically, we have been dismissed from the vast majority of these claims with no payment to claimants. "We have maintained insurance coverage that we believe covers indemnity and defense costs, over and above self-insured retentions, for claims arising from our former Allen-Bradley subsidiary. Following litigation against Nationwide Indemnity Company (Nationwide) and Kemper Insurance (Kemper), the insurance carriers that provided liability insurance coverage to Allen- Bradley, we entered into separate agreements on April 1, 2008 with both insurance carriers to further resolve responsibility for ongoing and future coverage of Allen-Bradley asbestos claims. In exchange for a lump sum payment, Kemper bought out its remaining liability and has been released from further insurance obligations to Allen-Bradley. Nationwide entered into a cost share agreement with us to pay the substantial majority of future defense and indemnity costs for Allen-Bradley asbestos claims. We believe that this arrangement with Nationwide will continue to provide coverage for Allen-Bradley asbestos claims throughout the remaining life of the asbestos liability. "The uncertainties of asbestos claim litigation make it difficult to predict accurately the ultimate outcome of asbestos claims. That uncertainty is increased by the possibility of adverse rulings or new legislation affecting asbestos claim litigation or the settlement process. Subject to these uncertainties and based on our experience defending asbestos claims, we do not believe these lawsuits will have a material effect on our financial condition or results of operations. "We have, from time to time, divested certain of our businesses. In connection with these divestitures, certain lawsuits, claims and proceedings may be instituted or asserted against us related to the period that we owned the businesses, either because we agreed to retain certain liabilities related to these periods or because such liabilities fall upon us by operation of law. In some instances, the divested business has assumed the liabilities; however, it is possible that we might be responsible to satisfy those liabilities if the divested business is unable to do so. "In connection with the spin-offs of our former automotive component systems business, semiconductor systems business and Rockwell Collins avionics and communications business, the spun- off companies have agreed to indemnify us for substantially all contingent liabilities related to the respective businesses, including environmental and intellectual property matters. In connection with the sale of our Dodge mechanical and Reliance Electric motors and motor repair services businesses, we agreed to indemnify Baldor Electric Company for costs and damages related to certain legal, legacy environmental and asbestos matters of these businesses arising before January 31, 2007, for which the maximum exposure would be capped at the amount received for the sale." Rockwell Automation, Inc., provides industrial automation power, control, and information solutions. ASBESTOS UPDATE: Union Pacific Had $139MM Liability at Dec. 31 -------------------------------------------------------------- Union Pacific Corporation's asbestos-related liability at December 31, 2012, was $139 million, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2012. The Company states: "We are a defendant in a number of lawsuits in which current and former employees and other parties allege exposure to asbestos. We assess our potential liability using a statistical analysis of resolution costs for asbestos-related claims. This liability is updated annually and excludes future defense and processing costs. "Our liability for asbestos-related claims is not discounted to present value due to the uncertainty surrounding the timing of future payments. Approximately 22% of the recorded liability related to asserted claims and approximately 78% related to unasserted claims at December 31, 2012. Because of the uncertainty surrounding the ultimate outcome of asbestos-related claims, it is reasonably possible that future costs to settle these claims may range from approximately $139 million to $149 million. We record an accrual at the low end of the range as no amount of loss within the range is more probable than any other. "At December 31, 2012, the Company's asbestos-related liability was $139 million. "In conjunction with the liability update performed in 2012, we also reassessed estimated insurance recoveries. We have recognized an asset for estimated insurance recoveries at December 31, 2012 and 2011. The amounts recorded for asbestos-related liabilities and related insurance recoveries were based on currently known facts. However, future events, such as the number of new claims filed each year, average settlement costs, and insurance coverage issues, could cause the actual costs and insurance recoveries to be higher or lower than the projected amounts. Estimates also may vary in the future if strategies, activities, and outcomes of asbestos litigation materially change; federal and state laws governing asbestos litigation increase or decrease the probability or amount of compensation of claimants; and there are material changes with respect to payments made to claimants by other defendants." Union Pacific Corporation owns transportation companies. Its principal operating company, Union Pacific Railroad Company, links 23 states in the western 66% of the country. Union Pacific Railroad Company's business mix includes agricultural products, automotive, chemicals, energy, industrial products and intermodal. Union Pacific Railroad Company connects with Canada's rail systems and is the railroad serving six gateways to Mexico. ASBESTOS UPDATE: Cabot Corp. Still Exposed to AO-Related Claims --------------------------------------------------------------- Cabot Corporation continues to have exposure in connection with asbestos-related claims, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended December 31, 2012. Cabot has exposure in connection with a safety respiratory products business that a subsidiary acquired from American Optical Corporation ("AO") in an April 1990 asset purchase transaction. The subsidiary manufactured respirators under the AO brand and disposed of that business in July 1995. In connection with its acquisition of the business, the subsidiary agreed, in certain circumstances, to assume a portion of AO's liabilities, including costs of legal fees together with amounts paid in settlements and judgments, allocable to AO respiratory products used prior to the 1990 purchase by the Cabot subsidiary. Generally, these respirator liabilities involve claims for personal injury, including asbestosis, silicosis and coal worker's pneumoconiosis, allegedly resulting from the use of respirators that are alleged to have been negligently designed or labeled. Neither Cabot, nor its past or present subsidiaries, at any time manufactured asbestos or asbestos-containing products. At no time did this respiratory product line represent a significant portion of the respirator market. As of both December 31, 2012 and September 30, 2012, there were approximately 42,000 claimants in pending cases asserting claims against AO in connection with respiratory products. Cabot has a reserve to cover its expected share of liability for existing and future respirator liability claims. At both December 31, 2012 and September 30, 2012, the reserve was $13 million on a discounted basis ($17 million on an undiscounted basis at both December 31, 2012 and September 30, 2012). The reserve is being accreted up to the undiscounted liability through interest expense over the expected cash flow period, which is through 2062. Cash payments related to this liability were less than $1 million in the first three months of both fiscal 2013 and 2012. Cabot Corporation manufactures several industrial materials including specialty chemicals. commonly found both inside your household and in industrial applications. Some of the major product offerings are fumed metal oxide which is often found in cosmetics, pharmaceuticals, and composites. ASBESTOS UPDATE: Invensys Still Must Indemnify Rexnord ------------------------------------------------------ Rexnord Corporation continues to be involved in asbestos-related claims for which Invensys plc is obligated to defend and indemnify them, according to Rexnord's Form 10-Q filing with the U.S. Securities and Exchange Commission for the fiscal quarter ended December 29, 2012. In connection with the Carlyle acquisition in November 2002, Invensys plc has provided the Company with indemnification against certain contingent liabilities, including certain pre-closing environmental liabilities. The Company believes that, pursuant to such indemnity obligations, Invensys is obligated to defend and indemnify the Company relating to the Ellsworth Industrial Park Site and to various asbestos claims. The indemnity obligations are subject, together with indemnity obligations relating to other matters, to an overall dollar cap equal to the purchase price, which is an amount in excess of $900 million. These paragraphs summarize the most significant actions and proceedings: * In 2002, Rexnord Industries, LLC ("Rexnord Industries") was named as a potentially responsible party ("PRP"), together with at least ten other companies, at the Ellsworth Industrial Park Site, Downers Grove, DuPage County, Illinois (the "Site"), by the United States Environmental Protection Agency ("USEPA"), and the Illinois Environmental Protection Agency ("IEPA"). Rexnord Industries' Downers Grove property is situated within the Ellsworth Industrial Complex. The USEPA and IEPA allege there have been one or more releases or threatened releases of chlorinated solvents and other hazardous substances, pollutants or contaminants, allegedly including but not limited to a release or threatened release on or from the Company's property, at the Site. The relief sought by the USEPA and IEPA includes further investigation and potential remediation of the Site and reimbursement of USEPA's past costs. Rexnord Industries' allocated share of past and future costs related to the Site, including for investigation and/or remediation, could be significant. All previously pending property damage and personal injury lawsuits against the Company related to the Site have been settled or dismissed. Pursuant to its indemnity obligation, Invensys continues to defend the Company in known matters related to the Site and has paid 100% of the costs to date. * Multiple lawsuits (with approximately 1,000 claimants) are pending in state or federal court in numerous jurisdictions relating to alleged personal injuries due to the alleged presence of asbestos in certain brakes and clutches previously manufactured by the Company's Stearns division and/or its predecessor owners. Invensys and FMC, prior owners of the Stearns business, have paid 100% of the costs to date related to the Stearns lawsuits. Similarly, the Company's Prager subsidiary is a defendant in two pending multi-defendant lawsuits relating to alleged personal injuries due to the alleged presence of asbestos in a product allegedly manufactured by Prager. Additionally, there are approximately 4,000 individuals who have filed asbestos related claims against Prager; however, these claims are currently on the Texas Multi-district Litigation inactive docket. The ultimate outcome of these asbestos matters cannot presently be determined. To date, the Company's insurance providers have paid 100% of the costs related to the Prager asbestos matters. The Company believes that the combination of its insurance coverage and the Invensys indemnity obligations will cover any future costs of these matters. Rexnord Corporation is a multi-platform industrial company. The Company comprises of two platforms, Process & Motion Control and Water Management. Rexnord's Process & Motion Control product portfolio includes gears, couplings, industrial bearings, aerospace bearings and seals, FlatTop chain, engineered chain and conveying equipment, and are marketed and sold globally under brands, including Rexnord, Rex, Falk and Link-Belt. Its Water Management platform operates in the commercial construction market for water management products and the municipal water and wastewater treatment markets. ASBESTOS UPDATE: Hamilton Defending Rexnord in 200 Pending Suits ---------------------------------------------------------------- Rexnord Corporation continues to be involved in asbestos-related claims for which Hamilton Sundstrand is obligated to defend and indemnify them, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the fiscal quarter ended December 29, 2012. In connection with the Falk Corporation acquisition, Hamilton Sundstrand has provided Rexnord with indemnification against certain products-related asbestos exposure liabilities. The Company believes that, pursuant to such indemnity obligations, Hamilton Sundstrand is obligated to defend and indemnify the Company with respect to the asbestos claims, and that, with respect to these claims, such indemnity obligations are not subject to any time or dollar limitations. Falk, through its successor entity, is a defendant in approximately 200 lawsuits pending in state or federal court in numerous jurisdictions relating to alleged personal injuries due to the alleged presence of asbestos in certain clutches and drives previously manufactured by Falk. There are approximately 600 claimants in these suits. The ultimate outcome of these lawsuits cannot presently be determined. Hamilton Sundstrand is defending the Company in these lawsuits pursuant to its indemnity obligations and has paid 100% of the costs to date. Rexnord Corporation is a multi-platform industrial company. The Company comprises of two platforms, Process & Motion Control and Water Management. Rexnord's Process & Motion Control product portfolio includes gears, couplings, industrial bearings, aerospace bearings and seals, FlatTop chain, engineered chain and conveying equipment, and are marketed and sold globally under brands, including Rexnord, Rex, Falk and Link-Belt. Its Water Management platform operates in the commercial construction market for water management products and the municipal water and wastewater treatment markets. ASBESTOS UPDATE: Rexnord Units Still Facing Exposure Suits ---------------------------------------------------------- Certain of Rexnord Corporation's Water Management subsidiaries continue to be involved in asbestos-related lawsuits, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the fiscal quarter ended December 29, 2012. Certain Water Management subsidiaries are subject to asbestos and class action related litigation. As of December 29, 2012, Zurn and an average of approximately 80 other unrelated companies were defendants in approximately 7,000 asbestos related lawsuits representing approximately 27,000 claims. Plaintiffs' claims allege personal injuries caused by exposure to asbestos used primarily in industrial boilers formerly manufactured by a segment of Zurn. Zurn did not manufacture asbestos or asbestos components. Instead, Zurn purchased them from suppliers. These claims are being handled pursuant to a defense strategy funded by insurers. As of December 29, 2012, the Company estimates the potential liability for asbestos-related claims pending against Zurn as well as the claims expected to be filed in the next ten years to be approximately $42.0 million of which Zurn expects to pay approximately $33.0 million in the next ten years on such claims, with the balance of the estimated liability being paid in subsequent years. The $42.0 million was developed based on an actuarial study and represents the projected indemnity payout for claims filed in the next 10 years. However, there are inherent uncertainties involved in estimating the number of future asbestos claims, future settlement costs, and the effectiveness of defense strategies and settlement initiatives. As a result, Zurn's actual liability could differ from the estimate. Further, while this current asbestos liability is based on an estimate of claims through the next ten years, such liability may continue beyond that time frame, and such liability could be substantial. Management estimates that its available insurance to cover its potential asbestos liability as of December 29, 2012, is approximately $255.1 million, and believes that all current claims are covered by this insurance. However, principally as a result of the past insolvency of certain of the Company's insurance carriers, certain coverage gaps will exist if and after the Company's other carriers have paid the first $179.1 million of aggregate liabilities. In order for the next $51.0 million of insurance coverage from solvent carriers to apply, management estimates that it would need to satisfy $14.0 million of asbestos claims. Layered within the final $25.0 million of the total $255.1 million of coverage, management estimates that it would need to satisfy an additional $80.0 million of asbestos claims. If required to pay any such amounts, the Company could pursue recovery against the insolvent carriers, but it is not currently possible to determine the likelihood or amount of such recoveries, if any. As of December 29, 2012, the Company has a recorded receivable from its insurance carriers of $42.0 million, which corresponds to the amount of its potential asbestos liability that is covered by available insurance and is currently determined to be probable of recovery. However, there is no assurance that $255.1 million of insurance coverage will ultimately be available or that Zurn's asbestos liabilities will not ultimately exceed $255.1 million. Factors that could cause a decrease in the amount of available coverage include: changes in law governing the policies, potential disputes with the carriers regarding the scope of coverage, and insolvencies of one or more of the Company's carriers. Rexnord Corporation is a multi-platform industrial company. The Company comprises of two platforms, Process & Motion Control and Water Management. Rexnord's Process & Motion Control product portfolio includes gears, couplings, industrial bearings, aerospace bearings and seals, FlatTop chain, engineered chain and conveying equipment, and are marketed and sold globally under brands, including Rexnord, Rex, Falk and Link-Belt. Its Water Management platform operates in the commercial construction market for water management products and the municipal water and wastewater treatment markets. ********* 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., Washington, D.C., USA. Noemi Irene A. Adala, Joy A. Agravante, Valerie Udtuhan, Julie Anne L. Toledo, Christopher Patalinghug, Frauline Abangan and Peter A. Chapman, Editors. Copyright 2013. 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 $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000 or Nina Novak at 202-241-8200. * * * End of Transmission * * *