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/raid1/www/Hosts/bankrupt/CAR_Public/130531.mbx C L A S S A C T I O N R E P O R T E R Friday, May 31, 2013, Vol. 15, No. 107 Headlines AMYRIS INC: Faces Investor Class Action Over Production Claims APOTEX INC: Faces Class Action Over Recalled Birth Control Pill ARUP PTY: Class Action Under Way Over Airport Link Toll Road AU OPTRONICS: Supreme Court Set to Resolve Jurisdiction Split AUSTRALIA: Nobby Owner Joins Class Action Over Equine Flu Outbreak BANK OF AMERICA: Judge Denies Appeal in RMBS Class Action BANSKIA: Debt Holders Hope to Get Full Payment of Money Owed BARCLAYS PLC: Court Dismisses "Gusinsky" Securities Class Action CHARLES SCHWAB: Temporarily Reverses Client Class Action Waiver CHICAGO TRIBUNE: Settles Class Action Over Subscription Rates CHRYSLER LLC: No Free Car or Money for Disgruntled Customer COMPUTER SCIENCES: Settles Class Action for $97.5 Million COPA BRAZILIAN: May Face Class Action Over Salmonella Outbreak DOW CHEMICAL: Ordered to Pay $1.2-Bil. to Settle Price-Fixing Case DOW CHEMICAL: To Appeal Price-Fixing Class Action Ruling DR HORTON: 5th Cir. Has Yet to Decide on Arbitration Issue FLEETWOOD: Recalls 4 American Eagle and Tradition Motorhomes FLEETWOOD: Recalls 40 American Allegiance and Other Motorhomes GAF MATERIALS: Court Denies Bid to Issue Notice to Class Members GLAXOSMITHKLINE: WLF Urges Court to Protect Right to Federal Forum GREAT PERFORMANCES/ARTISTS: Sued Over $3-Mil. in Employee Tips HARMONY JUVENILE: Recalls 9,300 Convertible Child Car Seats HARMONY JUVENILE: Recalls 9,300 V7 3-IN-1 Convertible Car Seats HEARST CORP: Critics of Unpaid Internships Balk at Baer's Ruling LEIGHTON HOLDINGS: Faces Class Action Over Profit Write-Downs LUZERNE COUNTY, PA: Judge Certifies Juvenile Center Class Action MADISON COUNTY, IL: Motions to Dismiss Tax Class Action Filed MCGRAW-HILL COS: 2nd Cir. Affirms Royalties Class Action Dismissal MERVIN MANUFACTURING: Recalls 8K Pairs of GNU Snowboard Bindings MICHIGAN: Judge Allows Class Action Over Asset Seizures to Proceed MOUNT OLIVET, KY: Sued Over Occupational Tax Ordinance NEW YORK: Judge Tosses FLSA Overtime Class Action v. City Health NEW YORK: DOJ Eyes "Stop-and-Frisk" Constitutionality PEMEX: Tabasco Residents File Class Action Over Oil Spills PILOT FLYING J: Freeh Group to Help in Rebate Scam Investigation SEQUEL NATURALS: Recalls Vega(R) Sport Brand Protein Bars SOVEREIGN GRACE: Judge Dismisses Most of Child Sex Abuse Suit UNITED STATES: ACLJ Mulls Class Action Over IRS Targeting UNITED STATES: Hennepin County's Judgment Bid in FCRA Suit Denied WELLS FARGO: Cites New Facts in Bid Against Investor Class Action WELLS FARGO: Settles Force-Placed Insurance Class Action YOUTUBE INC: Class Cert. Bid in Copyright Infringement Suit Denied Asbestos Litigation ASBESTOS UPDATE: Pittsburgh Corning Plan Up for 2nd Approval ASBESTOS UPDATE: Park-Ohio Industries Had 260 Cases at March 31 ASBESTOS UPDATE: IntriCon Continues to Defend Exposure Suits ASBESTOS UPDATE: Le@P Technology Accrued $32,000 in Legal Fees ASBESTOS UPDATE: Kaiser Ventures Has Insurance to Cover PI Claims ASBESTOS UPDATE: Momentive Specialty Continues to Defend PI Suits ASBESTOS UPDATE: Independence Realty Properties Contain Asbestos ASBESTOS UPDATE: CCOM Group Continues to Defend PI Lawsuits ASBESTOS UPDATE: International Textile Facilities Contain Fibro ASBESTOS UPDATE: Rexnord Has $254.2MM Insurance for PI Suits ASBESTOS UPDATE: Trial Court's Ruling in "Rendon" Suit Reversed ASBESTOS UPDATE: Summary Judgment Bid Granted Due to "Boomer" ASBESTOS UPDATE: NY Ct. Consolidated 4 Meso Cases for Trial ASBESTOS UPDATE: Parties in NY PI Suit Fight Over Jurisdiction ASBESTOS UPDATE: Untimely Removal of Suit Warrants Remand ASBESTOS UPDATE: Santa Barbara Jury Returns Defense Verdict ASBESTOS UPDATE: Abatement Work at Pan Am Site to be Awarded ASBESTOS UPDATE: Young Laborers Exploited to Save Costs ASBESTOS UPDATE: Sunderland Buildings on Asbestos Risk List ASBESTOS UPDATE: Rwanda Gov't. to Eradicate Asbestos Roofing ASBESTOS UPDATE: Nottingham Plumber Fined for Asbestos Work ASBESTOS UPDATE: More Money for Mesothelioma Research Would Help ASBESTOS UPDATE: Councilor Lends Support to Asbestos Walk ASBESTOS UPDATE: Registers Being Checked in S. Australian Schools ASBESTOS UPDATE: Indian Environment Minister Denies Fibro Hazards ASBESTOS UPDATE: Head Teachers "Childish" Over Cwmcarn Fibro Row ASBESTOS UPDATE: Co. Boss Given Six Months for Factory Demolition ASBESTOS UPDATE: ADEM Issues Statement on Asbestos Removal ASBESTOS UPDATE: Lung Cancer Widow Claims Asbestos Damages ASBESTOS UPDATE: Blackpool Man Succumbs to Mesothelioma ASBESTOS UPDATE: Australian Gov't. to Invest $10.5MM for Safety ASBESTOS UPDATE: Queen Elizabeth II Stadium Fibro Cleanup Underway ASBESTOS UPDATE: S. Australia Gov't Fails to Check Schools ASBESTOS UPDATE: Surrey Company Fined for Poole Asbestos Breaches ASBESTOS UPDATE: ART Pays Out RMB250MM to 3,600 Claimants ASBESTOS UPDATE: Sarnia Park Partly Closed Due to Toxic Dusts ASBESTOS UPDATE: 7 Countries Block Moves to Limit Fibro Shipping ASBESTOS UPDATE: Planned Lordswood Depot "Too Close" to Houses ASBESTOS UPDATE: Ugandans At Risk of Cancer Due to Roofing ASBESTOS UPDATE: Top French Politician Cleared Over Fibro ASBESTOS UPDATE: Bassetlaw Residents Angered Over Fibro Dump ASBESTOS UPDATE: MP's Fury at Insurers Over Asbestos ASBESTOS UPDATE: Canberra Family Exposed to Deadly Asbestos ASBESTOS UPDATE: Exhibit of Asbestos History in McLean County ASBESTOS UPDATE: Fixing Hakea Prison's Asbestos to Cost $2.5MM ASBESTOS UPDATE: Asbestos, A Killer 40 Years Later ASBESTOS UPDATE: Judge Takes 2 Years to Decide in Dumping Case ASBESTOS UPDATE: Firm Build Execs Plead No Contest in Fibro Case ASBESTOS UPDATE: Fraud Makes Asbestos Illness Situation Worse ASBESTOS UPDATE: Plea for Info After Sheffield Man's Death ASBESTOS UPDATE: Australian Gov't.'s $10.5MM Safety Plan Welcomed ASBESTOS UPDATE: Sunshine Coast Fibro Disposal Rules Coming ASBESTOS UPDATE: Widow Fights for Justice Over Fibro Exposure ASBESTOS UPDATE: Family of Asbestos Victim Pleas for Justice ASBESTOS UPDATE: Stowey Quarry Fibro Dump Plans Go to Appeal ASBESTOS UPDATE: Sunderland Hospitals in Asbestos Registry List ASBESTOS UPDATE: House Committee Breaks Promise to Fibro Victims ASBESTOS UPDATE: Levy Phillips Defeat LIRR's Summary Judgment Plea ASBESTOS UPDATE: Levy Phillips Opens Office in White Plains, NY ASBESTOS UPDATE: May Whitney Fibro Removal to Continue ASBESTOS UPDATE: Bans Influenced by Mesothelioma "Visibility" ASBESTOS UPDATE: House Committee Passes Asbestos Transparency Bill ASBESTOS UPDATE: Fibro Contributes to Failing Grades of NJ SDs ASBESTOS UPDATE: Mesothelioma Victims in Line for GBP100,000 Bonus ASBESTOS UPDATE: Exposure to Toxic Dust Causes Grandfather's Death ASBESTOS UPDATE: NBN Work Contaminates Penrith Street with Fibro ASBESTOS UPDATE: Widow of Mesothelioma Victim Appeals for Help ASBESTOS UPDATE: Ulverston Widow Awarded Six-Figure Settlement ********* AMYRIS INC: Faces Investor Class Action Over Production Claims -------------------------------------------------------------- The Associated Press reports that a law firm said it has filed a federal securities class action lawsuit against the company, saying Amyris misled investors about its production capabilities. Milberg LLP said its lawsuit will include investors who bought Amyris securities between April 2011 and February 2012. The law firm said Amyris mislead investors about its ability to produce its chemical Biofene. Milberg said Amyris overstated its production capacity initially, and then announced in November 2011 that it couldn't produce Biofene in the quantities it had previously expected, but that it had found a way to address the issue. In February 2012 the company again lowered its expectations. The Emeryville, Calif., company did not immediately respond to a request for comment. Amyris uses genetically modified microorganisms -- mainly yeast -- to make products for a variety of markets including specialty chemicals, fuels and fragrances. In 2011 the company initially said it would produce between 6 million and 9 million liters of Biofene, but in November it cut that estimate to 1 million to 2 million liters. Amyris said it expected to produce 40 million to 50 million liters in 2012, but in February of that year it withdrew that guidance because it had decided to expand one manufacturing plant instead of two, and said it would look for additional financing to pay its bills. In April 2013 one of Amyris' partners, French drugmaker Sanofi, started large-scale production of a malaria treatment using technology Amyris developed. Sanofi plans to make the medicine available at low cost and Amyris won't get royalties on sales of the medication, but the news could be seen as a milestone for the company. Shares of Amyris fell 16 cents, or 5 percent, to $3.04 in afternoon trading. The stock fell 92 percent between Nov. 1, 2011 and May 16, 2012. The shares have roughly doubled in value from that low point, but they are still down about 83 percent since Amyris cut its 2011 production guidance. San Francisco Business Times' Lindsay Riddell reports that investors are also suing Amyris' CEO John Melo. APOTEX INC: Faces Class Action Over Recalled Birth Control Pill --------------------------------------------------------------- Justin Fauteux, writing for The Globe and Mail, reports that a group of Ontario women, including 40 who are pregnant, have launched an C$800-million class action against Apotex Inc., the maker of the recalled Alysena birth control pill. The lawsuit involves about 60 women, among whom there have been 40 unwanted pregnancies and four abortions, according to Sandy Zaitzeff, a lawyer with Thunder Bay firm Watkins Law Professional Corporation, which launched the suit. "They're angry, they're distressed, they're worried," Mr. Zaitzeff said of his clients. "There's a lot of stress in something like this." A total of 50,000 packages of the Alysena birth control pill with the lot number LF01899A were recalled April 8 when it was discovered that some packs contained two rows of placebo pills instead of just one. On April 13, the recall was expanded to 11 other lot numbers. Apotex did not notify customers of the initial recall for five days after the problem was identified, prompting federal Health Minister Leona Aglukkaq to order an investigation into the delay on April 11. Mr. Zaitzeff said the first plaintiff came to his firm last month, and since then the numbers have grown. He added that his clients come from across Canada and that he expects the number of women involved in the case to increase. "The damages are substantial," he said, adding that his clients are facing financial, ethical, moral and health issues. "An unwanted pregnancy -- to raise a child today is millions of dollars. Just because somebody had sex with another individual in today's world does not mean that they should be burdened with the costs of raising a child." Mr. Zaitzeff said that the medical condition of the women involved in the suit is being "carefully investigated." However, he claims several health problems could arise. "There are numerous health conditions which would warrant a person not becoming pregnant because of the type of drugs that the person was on. Which makes the pregnancy not only difficult, but perhaps dangerous to the health of the mother and dangerous and life- threatening to the health of the fetus." A request for comment from Apotex was not immediately returned. A company spokesperson told Global News in April that Apotex would not comment on legal matters before the court. According to Globalnews.ca, in the wake of Apotex's recall of birth control pill Alysena in April, lawyers at Watkins Law Professional Corporation says that 40 women are pregnant while other women have stepped forward to join the class action. "Over the last couple of weeks, our website and other forms of social media inputs have been inundated with calls from concerned women and potential claimants," lawyer Christopher Watkins said in a statement. His colleague, Mr. Zaitzeff says that so far, 40 pregnancies and four abortions have occurred so far. About 60 women from across Canada have joined the class action. "We have well over 25 women who now claim to have become wrongfully pregnant while taking the drug Alysena. We have hundreds more who have contacted us and expressed concern and trauma and are in a waiting game." The statement says a "steady stream" of callers are anxious after hearing that the contraceptive "they placed so much dependency on" may have failed. "Some have serious medical issues which could result in potential severe medical complications if they become pregnant. Others are left in turmoil of how they will react . . ., " the statement read. Apotex has not yet responded to the claims made in the lawsuit. Mr. Watkins was not available for comment on May 16. In an interview when the class action was first launched, he told Global News that women don't have to be pregnant to join the lawsuit. He said that in some instances, if women deliver babies with birth defects or any issues that would need additional care, they could sue for damages linked to these costs. Meanwhile, other women may have taken time off work to deal with pregnancy, the fallout of relationships or health concerns. "The gamut is very wide," Mr. Watkins had said. On April 8, Health Canada warned women that the product contained two weeks' worth of placebos instead of one. It added that the "possibility of unplanned pregnancy cannot be ruled out." About 50,000 packets of the product with the recalled lot number LF01899A was distributed across Canada, except for in Alberta, Saskatchewan and Manitoba. Days later, the recall was expanded to include 11 additional lots of the pill, but only as a precautionary measure. Now, Watkins is appealing to women across Ontario and other parts of Canada to contact him on the firm's website. Mr. Watkins says that he filed the class action after a few women reached out to him. Only three people are needed to form a class action. The claim has been issued in the Superior Court of Justice in Thunder Bay, Mr. Watkins said. He says he anticipates that other provinces could be taking on their own cases. Aglukkaq has ordered an investigation into why Canadian women were not immediately informed of the recall. An initial recall notice by Apotex was sent to retailers and distributors but a public notice wasn't released until five days later. Apotex spokesperson Elie Betito told Global News in April that the company will not comment on legal proceedings before the court. He did not respond to request for comment Thursday. Sabrina Lombardi, a lawyer with Siskinds LLP in London, Ont., says that the lawsuit is a novel case in Canada. "It is a very difficult and novel issue to pursue," she told Global News. "It depends on what exactly the damages are with respect to the pregnancy," she said. She explained that if the pregnancy resulted in a disabled child, for example, some damages could be recovered to care for the baby. "It's very wide open. This area of law is not at all settled," she said. In April, other lawyers weighed in, noting that it could be an uphill climb to prove it was these recalled pills that caused pregnancy. "The short story is that people will very likely bring lawsuits in Canada against this manufacturer," said Harvard University professor and Canadian Glenn Cohen. "They'll have to show the mistake regarding the placebo caused them to be pregnant and had it not been one of these placebo pills, they would not have gotten pregnant." ARUP PTY: Class Action Under Way Over Airport Link Toll Road ------------------------------------------------------------ James McCullough, writing for The Courier-Mail, reports that a class action is under way against engineering group Arup Pty Ltd over the company's overly optimistic traffic forecasts for the troubled Airport Link toll road project in Brisbane. Litigation funder IMF (Australia) has agreed to fund class action law firm Maurice Blackburn to bring proceedings against Arup by investors in the project. The listed BrisConnections Management Company Ltd may also be claimed against for allowing a defective Product Disclosure Statement to be issued and other companies involved in the failed project may also be pursued. "Inaccurate traffic and profitability forecasts made by Arup in relation to Airport Link had been relied on by investors who have lost millions on their investments in the Brisconnections Unit Trusts," according to IMF's Queensland manager Andrew Charles. Maurice Blackburn's Principal Ben Slade agreed, saying Arup's traffic forecasts had proved to be "overly optimistic". He said making forecasts without reasonable grounds in a product disclosure statement was potentially a breach of the Corporations Act for which damages were payable. The start of class action proceedings is subject only to there being enough eligible investors who wish to participate in the case. Arup forecast that approximately 179,000 vehicles would use Airport Link daily after six months of operation. Instead, in December 2012, actual traffic numbers were averaging around 47,000 per day or 26 per cent of the forecast, despite tolls being discounted. Airport Link's poor traffic numbers and resulting minimal toll revenue caused BrisConnections to be placed into administration on February 19, 2013, less than seven months after Airport Link opened. According to Business Spectator, IMF is bankrolling a AUD450 million class action on behalf of investors in the defunct Brisconnections against Arup. Mr. Charles said the action was only open to investors who bought into the Brisconnections initial public offering in July 2008, when units were AUD1 apiece. The suit will accuse Arup of breaching the Corporations Act and negligence over traffic forecasts in the product disclosure statement accompanying the IPO. BrisConnections was put in voluntary administration in February, less than seven months after the airport link opened, after revenue generated from its tolls failed to offset the level of its debt. BrisConnections management company could also be liable under the action "for making a defective product disclosure statement available to investors". Mr. Charles said the sponsors of the IPO were unlikely to join the action, valuing it at up to AUD450 million. IMF will allege that Arup breached the Corporations Act by not including all materially relevant information in the product disclosure statement on its traffic forecasts, and was negligent for providing figures without a reasonable basis. Maurice Blackburn, who is investigating the action with IMF, said Arup's traffic forecasts for the airport link in the PDS had proved wildly optimistic. The airport link opened last July. "It is likely that information about these lower traffic forecasts would have had a material influence on the decision of investors to invest in the BrisConnections Unit Trusts," Maurice Blackburn said. The action will also charge that Arup omitted reference to substantially lower traffic forecasts for the link that had been prepared by other traffic experts. Mr. Charles said IMF was carrying about $20 million in risk by bankrolling the action, according to Business Spectator. AU OPTRONICS: Supreme Court Set to Resolve Jurisdiction Split ------------------------------------------------------------- Jessica M. Karmasek, writing for Legal Newsline, reports that the U.S. Supreme Court could decide whether federal courts have jurisdiction over lawsuits filed in state courts by state attorneys general on behalf of consumers. The nation's high court was set to meet to decide whether to take up Mississippi ex rel Hood v. AU Optronics Corp. and AU Optronics Corp. v. South Carolina. If taken up, oral arguments would be scheduled for the fall term. In February, Mississippi Attorney General Jim Hood submitted a petition for a writ of certiorari with the court, arguing that a November ruling by the U.S. Court of Appeals for the Fifth Circuit "warrants plenary review." The Fifth Circuit, in its Nov. 21 opinion, ruled that the removal of a lawsuit involving liquid crystal display panels to a federal district court was proper. The court found that the suit qualified as a "mass action" under the Class Action Fairness Act. The federal statute, passed in 2005, gives federal courts jurisdiction to certain class actions in which the amount in controversy exceeds $5 million, and in which any of the members of a class of plaintiffs is a citizen of a state different from any defendant, unless at least two-thirds or more of the members of all proposed plaintiff classes in the aggregate and the primary defendants are citizens of the state in which the action was originally filed. Business groups and tort reform supporters had lobbied for the legislation, arguing that it was needed to prevent class-action lawsuit abuse. "After analyzing the complaint, the relevant statutes and the parens patriae authority of the State, we hold that the real parties in interest in this suit include both the State and individual consumers of LCD products. Because it is undisputed that there are more than 100 consumers, we find that there are more than 100 claims at issue in this case. The suit therefore meets the CAFA definition of a 'mass action,'" Judge E. Grady Jolly wrote for the Fifth Circuit. Mr. Hood, who sued several major suppliers of the LCD panels in Hinds County Chancery Court in March 2011, argues that the suit should remain in a state court. The attorney general says he filed the suit under his parens patriae powers -- to protect the physical and economic well-being of the residents of his state. "First, it is beyond reasonable dispute that the Fifth Circuit's decision directly conflicts with the decisions of the Fourth, Seventh and Ninth Circuits. The Fifth Circuit's judgment also conflicts with this court's precedent regarding the nature of parens patriae actions, the real party in interest test, and the requirement that removal statutes such as CAFA be strictly construed," Hood wrote in his Feb. 19 petition. "The decision below involves an important and recurring issue of federal law and runs counter to deeply-rooted principles of federalism. The Fifth Circuit's decision will result in additional, wasteful jurisdictional battles and administrative complexity. Review by this court is amply warranted." Mr. Hood noted in his petition that there is a "clear and substantial" circuit split regarding the interpretation of CAFA with respect to parens patriae actions. In fact, the same question presented is pending before the court in a certiorari petition in South Carolina. In that case, the U.S. Court of Appeals for the Fourth Circuit held that two lawsuits filed by South Carolina's attorney general can remain in state court. The LCD makers are appealing the Fourth Circuit's decision. Mr. Hood, in a recent filing with the Supreme Court, argues that the issue before the court now should be limited to whether the case qualifies as a "mass action." "This is the issue at the core of the circuit split," the attorney general wrote in a 12-page reply brief in support of his recently filed petition. Mr. Hood added that the court should hold off on ruling in South Carolina until a decision is made in his own. Private firms hired to represent Mississippi in the LCD case are Abraham & Rideout of Greenwood, Miss.; Zimmerman Reed of Minneapolis; and Wise, Carter, Child & Caraway of Jackson. A. Lee Abraham Jr. donated $1,000 to Mr. Hood's campaign fund in 2011, while three Zimmerman Reed attorneys each gave Hood $1,000 in 2007. The Zimmerman Reed firm gave Mr. Hood $11,250 from 2007-11. AUSTRALIA: Nobby Owner Joins Class Action Over Equine Flu Outbreak ------------------------------------------------------------------ Laura Hunt, writing for Sunshine Coast Daily, reports that six years on from the Equine Influenza outbreak that devastated the horse industry, Nobby stud owner Gary Turkington believes his business is still feeling the effects. Law firm Maurice Blackburn filed a class action against the Commonwealth Government this week for losses incurred to the horse and racing industry. Mr. Turkington, who runs Wattle Brae stud, is one of 550 clients involved in the case. Following the outbreak, the stud was in quarantine for the whole of its breeding season. "I believe we've got a very good case and I believe it was pure negligence," Mr. Turkington said. "We should never have been put through this ordeal." Maurice Blackburn class actions principal Damian Scattini said it was most likely a trial date wouldn't be set until next year. "We've been involved for about a year and have a very comprehensive document that we've filed," he said. "I'm confident we'll prevail." Mr. Scattini said it was well-known the Australian Quarantine Inspection Service had failed to ensure appropriate quarantine measures "Those people deserve to be compensated for what happened to them," he said. BANK OF AMERICA: Judge Denies Appeal in RMBS Class Action --------------------------------------------------------- Matthew Heller, writing for Law360, reports that a New York federal judge on May 16 denied a bid by Bank of America NA and U.S. Bank NA for interlocutory appeal of her ruling that they can be sued in a class action for allegedly failing to protect investors in their role as trustees of mortgage-backed securities. The banks asked U.S. District Judge Katherine B. Forrest to certify an interlocutory appeal after she denied their motion to dismiss a putative class action arising out of the 2008 collapse of Washington Mutual NA. BANSKIA: Debt Holders Hope to Get Full Payment of Money Owed ------------------------------------------------------------ Blair Thomson, writing for Bendigo Advertiser, reports that some Banskia debt holders believe they could receive all of their owed money back, plus interest. Investors owed money from the company's collapse were on May 17 set to receive 45 cents in the dollar back, taking total payments to 65c in the dollar. Receiver Tony McGrath is still confident that will eventually reach 80 to 85c. But Lawrence Bolitho, the lead plaintiff in a class action against the lender and its directors, on May 16 said the lawsuit could recoup all the remaining funds. "I think that's what is anticipated," he said. "That class action may pick up that 15c." Solicitor Mark Elliott is pursuing the class action on behalf of the 16,000 debenture holders, which Mr. Bolitho said he believed would ramp up next month. One of those debenture holders, Strathfieldsaye resident Jim Stein, said the outlook was looking more positive. "I'm much more relieved," he said. "(The payment) is better than expected. "It's slowly coming together. "In those early days we didn't know what we were going to get. "I think they were talking about 30 cents in the dollar, it was all over the place." Mr. Stein, who lost AUD136,000 in the collapse, said he had been told by "people in the know" that all owed money may be recouped with interest. Mr. Elliott told the Bendigo Advertiser in February there was revenue outside the scope of the receivers, like insurance, that could be accessed. Maiden Gully resident Barry Taylor, who lost AUD436,000 in the collapse, will have had about AUD280,000 returned to him by May 17. "We're sort of starting to get our confidence back a bit," he said. "We're reasonably stable and always have been, but no-one likes to do AUD430,000. "We've worked hard for it." Receivers had said 10c in the dollar would be paid in May, then a further 35c by June 30. The company collapsed last October leaving about 16,000 people, mainly from rural and regional areas, owed AUD660 million. BARCLAYS PLC: Court Dismisses "Gusinsky" Securities Class Action ---------------------------------------------------------------- District Judge Shira A. Scheindlin granted a motion to dismiss the lawsuit captioned VLADIMIR GUSINSKY, TRUSTEE, FOR THE VLADIMIR GUSINSKY LIVING TRUST, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. BARCLAYS PLC, et al., Defendants, No. 12 Civ. 5329 (SAS), (S.D. N.Y.). The Plaintiffs brought the putative class action on behalf of themselves and others similarly situated against Barclays PLC, Barclays Bank PLC, and Barclays Capital Inc., and John Varley, Robert Diamond, Christopher Lucas, and Marcus Agius. The Class consists of all persons and entities who purchased American Depositary Shares of Barclays PLC between July 10, 2007 and June 27, 2012, inclusive, and were allegedly damaged thereby. The Plaintiffs assert violations of: (1) Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder against all defendants; and (2) Section 20(a) of the Exchange Act against the Individual Defendants. The Plaintiffs raise four categories of misstatements: (1) Barclays' representations about its Business Practices in its Financial Statements; (2) Barclays' contingent liability disclosures in its Financial Statements; (3) Barclays' LIBOR submissions; and (4) Diamond's conference call statements. The Defendants moved under Federal Rule of Civil Procedure 12(b)(6) to dismiss the Second Amended Complaint on the grounds that: (1) the Plaintiffs fail to plead any actionable misrepresentations; (2) the Plaintiffs fail to plead facts giving rise to a strong inference of scienter; (3) the Plaintiffs fail to plead loss causation; (4) many of the alleged misstatements are not actionable because they are protected by the safe harbor provision in the Private Securities Litigation Reform Act of 1995, or the bespeaks caution doctrine; and (5) the Plaintiffs' Section 20(a) claims for control person liability must be dismissed because the Plaintiffs have failed to adequately allege a primary violation of Section 10(b) or culpable participation on the part of the Individual Defendants. Judge Scheindlin granted the motion to dismiss saying that with respect the Plaintiffs four categories of misstatements, the first two categories are not actionable misstatements or omissions. The second two categories, even if they are actionable, are too attenuated from the 2012 corrective disclosure to establish loss causation. "Plaintiffs are typically granted leave to amend at least once, particularly when claims are dismissed for failure to meet the heightened pleading standards under Rule 9(b). In this case, however, Plaintiffs received notice of the deficiencies in their First Amended Complaint at a pre-motion conference on January 10, 2013, and in a follow up letter of January 16, 2013, and were given, and took, the opportunity to amend again. Moreover, the reasons that the allegations in the SAC are insufficient, as set forth above, do not go to lack of specificity but are fundamental deficiencies under the securities laws. Because amendment would be futile, I will not grant leave to file a third amended complaint," Judge Scheindlin concluded. Judge Scheindlin ordered the Clerk of the Court to close the case. David Avi Rosenfeld, Esq. -- DRonsenfeld@rgrdlaw.com -- Samuel Howard Rudman, Esq. -- SRuman@rgrdlaw.com -- Christopher Michael Barrett, Esq. -- cbarrett@rgrdlaw.com -- of Robbins Geller Rudman & Dowd LLP, in Melville, NY, and Gregory Mark Nespole, Esq. -- nespole@whafh.com -- Robert B. Weintraub, Esq. -- weintraub@whafh.com -- of Wolf Haldenstein Adler Freeman & Herz LLP, in New York, NY, represented the Plaintiffs. Jonathan D. Schiller, Esq. -- jschiller@bsfllp.com -- James Meadows, Esq. -- jmeadows@bsfllp.com -- of Boies Schiller & Flexner LLP, in New York, NY, Michael Brille, Esq. -- mbrille@bsfllp.com -- of Boies Schiller & Flexner LLP, in Washington, D.C., David H. Braff, Esq. -- braffd@sullcrom.com -- Jeffrey T. Scott, Esq. -- scottj@sullcrom.com -- Matthew S. Fitzwater, Esq. -- fitzwaterm@sullcrom.com -- Matthew J. Porpora, Esq. -- porporam@sullcrom.com -- of Sullivan & Cromwell LLP, in New York, NY, Andrew J. Levander, Esq., of Dechert LLP, in New York, NY, Cheryl A. Krause, Esq., of Dechert LLP, in Philadelphia, PA represented the Defendants. A copy of the District Court's May 13, 2013 Opinion and Order is available at http://is.gd/xlrB5Sfrom Leagle.com. CHARLES SCHWAB: Temporarily Reverses Client Class Action Waiver --------------------------------------------------------------- Jed Horowitz and Suzanne Barlyn, writing for Reuters, report that Charles Schwab Corp. has temporarily reversed its requirement that clients waive their right to bring class-action lawsuits, adding a new twist in a battle closely watched by the securities industry and plaintiffs' attorneys. "Effective immediately, Schwab is modifying its account agreements to eliminate the existing class-action lawsuit waiver for disputes related to events occurring on or after May 15, 2013 and for the foreseeable future," the San Francisco-based brokerage company said in a statement that was posted on its website on May 15. Schwab still believes that arbitration is the best forum for clients to resolve disputes with the firm, but said it was backing off the litigation ban in deference to clients who are uncertain about their rights as it fights to defend its original ban. Schwab's right to stop clients from bringing coordinated court actions was challenged last year by the Financial Industry Regulatory Authority, the securities industry's principal regulator. A FINRA hearing panel in February ruled that Schwab's policy does violate FINRA rules but was consistent with federal law and recent Supreme Court interpretations of the Federal Arbitration Act. FINRA is appealing the decision to the National Adjudicatory Council, its in-house appellate body. "Given that the process will likely take considerable time to resolve, and may leave clients with a degree of uncertainty about their dispute resolution options in the meantime, we have elected to remove that uncertainty until the legal and regulatory process is completed," Schwab wrote in its statement. Consumer advocates, along with class-action lawyers, have blasted Schwab's efforts to limit the lawsuits, saying many ordinary investors cannot afford to pay on their own for the cost of arbitration hearings. In its statement, Schwab noted it will continue to pay arbitration fees for any investor who pursues an arbitration claim under $25,000 against the company. Public Citizen, a consumer watchdog group that has been circulating a petition asking Schwab to rescind the class-action ban, congratulated the company for its "responsible" decision. It said many of its 19,000 supporters who signed the petition also are Schwab customers who spoke directly to the firm. Schwab last year asked its almost 9 million clients to sign new account agreements that agreed to waive their class-action rights. The revised policy followed settlements of such suits in which the firm agreed to pay $235 million for misleading marketing of its YieldPlus money-market fund between May 2006 and March 2008. Several U.S. legislators led by Senator Al Franken of Minnesota last month urged the Securities and Exchange Commission to prevent all broker-dealers from mandating that clients bring disputes only through arbitration forums. Separately, more than 90 percent of shareholder votes tallied at Schwab's annual meeting on May 16 were cast in favor of reelecting founder Charles Schwab and three other directors who were running unopposed for board seats. At the same time, almost one-third favored a shareholder proposal that would allow them to directly nominate board candidates and a second that would require Schwab to disclose its political contributions. The company opposed both proposals. In answer to a shareholder question about raising its dividend, Schwab said he was "optimistic" that as earnings improve "in the next year or so," the company's board will consider a dividend increase. Despite relatively lackluster earnings amid rock-bottom interest rates in recent years, Schwab has been paying out about 30 percent of its net income to shareholders through dividends, he said. Chief Financial Officer Joe Martinetto said that for the second straight year, client trading is proving weaker than Schwab had expected and will likely be up only "modestly" from last year's low trading volume. But he and Chief Executive Walt Bettinger said that by cutting expenses and continuing to attract record amounts of new assets from clients, the company's profit margin and stock price remains solid. "We are widening our lead over our competitors," Mr. Bettinger said, adding that the $112 billion of net new assets collected from clients last year was up 30 percent, outpacing the growth at Merrill Lynch , Morgan Stanley , TD Ameritrade Holding Corp and E*Trade Financial Corp . While Schwab was created 40 years ago to appeal to self-directed clients who did not want advice from brokers, Schwab is earning increasingly high fees for providing advice today while trading commissions are declining. About 13 percent of clients assets at Schwab are being held in cash, which Bettinger called a "historically" high level, but more than 70 percent of new clients are enrolling in advice-related programs, he said. Shares of Schwab, which are up 31.7 percent since the beginning of the year, fell 7 cents or 0.4 percent to close at $18.91 in trading on May 16 on the New York Stock Exchange. CHICAGO TRIBUNE: Settles Class Action Over Subscription Rates ------------------------------------------------------------- Robert Channick, writing for The Chicago Tribune, reports that the news organization began mailing out a proposed offer on May 16 to settle a class-action lawsuit brought by two subscribers who claimed the newspaper illegally charged increased rates to subscribers' credit and debit cards. The suit, filed in December 2011 in the Circuit Court of Cook County by Cheryl Naedler and Theodore Raab, alleges that the Chicago Tribune breached the contracts of subscribers and violated the Illinois Consumer Fraud Act by charging a higher than agreed upon rate without giving at least 30 days advance notice. "This particular subscription increase, they just did it," said Daniel Edelman, a partner with Edelman, Combs, Latturner & Goodwin, a Chicago-based law firm representing the plaintiffs. "What they should do is send notice at least one billing cycle in advance saying we're going to increase it . . . if you agree to pay it. And they didn't do it." Some 41,000 subscribers will receive $6.50 each as part of the settlement, pending final court approval July 23. Ms. Naedler and Mr. Raab will each receive $2,000 as class representatives. "We periodically assess and adjust subscription pricing and our approach is to be transparent to our valued subscribers when price increases occur," Chicago Tribune spokeswoman Maggie Wartik said in a statement on May 18. "In 2011, a portion of our EZ Pay customers -- less than 10 percent of our home delivery subscribers -- did not receive notifications in time and are set to receive a $6.50 credit on their bill or refund if they are no longer subscribers. We are committed to ensuring this does not happen to our valued subscribers." CHRYSLER LLC: No Free Car or Money for Disgruntled Customer ----------------------------------------------------------- Ross Fiorani won't be getting a free car or money from Chrysler, Bankruptcy Judge Stuart M. Bernstein has ruled. In 2007, Mr. Fiorani of Kingstowne, VA, purchased a Dodge Charger R/T. At the time, he apparently wanted one with a gear shifter on the column. He was told by a dealer that Dodge did not make a Dodge Charger with that feature, but according to Mr. Fiorani, this was a lie. He complained to various state and federal agencies charged with enforcing consumer protection laws. Mr. Fiorani's 2007 Charger was stolen in November 2008, and he wanted to replace it. His principal contention is that he received pre-approved credit from Chrysler Financial, but various Dodge and Chrysler dealerships refused to sell him the Dodge Charger he wanted. Each denial largely followed a similar pattern. Mr. Fiorani would travel to a dealership, discuss purchasing a car with a sales representative, and the sales representative would relay Mr. Fiorani's interest to a manager. Once a manager was consulted, the Dealership would deny Mr. Fiorani's request to buy a car outright or tell him that it needed to verify his information and would contact him later. Mr. Fiorani claims the Dealerships refused to deal with him in retaliation for his participation as a member of a consumer-victim class action. The class supposedly challenged the failure of Chrysler LLC, now renamed Old Carco LLC, to regulate its dealerships in light of the Dealerships misrepresentations and violations of the various consumer protection laws. According to Mr. Fiorani, Schnader, Harrison, Segal & Lewis LLP was named counsel for the class of the Committee of Consumer Victims, which was renamed the Official Committee of Tort Claimants, consisting of consumers victimized by the fraudulent practices of Old Carco and the Dealerships. Mr. Fiorani claims he was a member of the class. No such class was ever proposed or recognized. The Court's records reflect that an Ad Hoc Committee of Consumer-Victims of Chrysler LLC, represented by Benjamin P. Deutsch, Esq. of Schnader, filed a motion on behalf of the Ad Hoc Committee to appoint an Official Committee of Tort Claimants. The Committee proposed to represent tort claimants that had personal injury claims. The motion was later withdrawn, but the Ad Hoc Committee continued to represent tort claimants. Mr. Fiorani's name was not included in a verified statement filed by the attorneys for the Ad Hoc Committee that listed the parties represented by the Ad Hoc Committee. Furthermore, no class was ever certified, and even if such a class had been certified, it did not represent victims of alleged fraudulent practices. Mr. Fiorani recently supplied evidence suggesting that Old Carco (and New Chrysler) took a more active role, directing its dealers not to sell Mr. Fiorani a car. In an e-mail that appears to be dated December 14, 2011, sent to Mr. Fiorani by Justin Chenoweth, a sales consultant at one of the Dealerships, Mr. Chenoweth stated: "You may remember me from your inquiry of our Charger R/T in 2009, with your explanation of your alleged lawsuit against seve. . . ers. Since that time, all dealerships in the Mid- Atlantic Business Center have been notified by Chrysler, LLC to refuse business with you. . . ., but please do not come to our dealership, we will not be able to assist you with your purchase at this time. You will not receive an . . . contact from us." Mr. Fiorani filed his motion on May 23, 2009, seeking two forms of relief. First, the heading of the Motion asks the Court to appoint a class-counsel to represent all consumer-victims of Chrysler Dodge's failure to regulate its Dealerships' violations of the consumer protection laws. This request is presumably based on the mistaken belief that there is an existing class and Mr. Fiorani is a member of that class. The text of the Motion also requests the Court to direct a Dodge dealer to immediately deliver the Dodge Charger R/T that he had chosen as part compensation for his damages totaling $75,000 or more. Recently, Mr. Fiorani insists on $1.2 million, and possibly, a new Dodge Charger R/T as well. According to Judge Bernstein, Mr. Fiorani's claims against any non-debtor dealerships and New Chrysler are beyond the jurisdiction of the Bankruptcy Court. They are asserted by a non- debtor against non-debtors and do not have any conceivable effect on the Old Carco estate. Judge Bernstein explained that Mr. Fiorani's claims against Old Carco (and any other debtors) are barred as a result of his failure to file a proof of claim. Although Mr. Fiorani's more recent papers refer to a five-year conspiracy, the conspiracy began around the time he started looking for a replacement vehicle in November 2008, and at oral argument, Mr. Fiorani stated that his claim arose in February 2009. Furthermore, he did not detail any specific post-petition, pre-sale conduct by Old Carco that might give rise to an administrative claim. Accordingly, his claim against Old Carco is a pre-petition claim, and he was required to file his claim by the claims bar date established in Old Carco's bankruptcy case. His failure to do so means he is not entitled to any distribution from the estate. Finally, even if he was entitled to a distribution, the confirmed plan does not provide for the distribution of motor vehicles to creditors on account of their claims, and Mr. Fiorani has failed to show that he is entitled to a monetary distribution of $1.2 million (or any other sum) under the plan, Judge Bernstein said. A copy of the Court's May 2, 2013 Memorandum Decision and Order is available at http://is.gd/qjkuuafrom Leagle.com. About Chrysler Group Chrysler Group LLC, formed in 2009 from a global strategic alliance with Fiat Group, produces Chrysler, Jeep(R), Dodge, Ram Truck, Mopar(R) and Global Electric Motorcars (GEM) brand vehicles and products. Headquartered in Auburn Hills, Michigan, Chrysler Group LLC's product lineup features some of the world's most recognizable vehicles, including the Chrysler 300, Jeep Wrangler and Ram Truck. Fiat will contribute world-class technology, platforms and powertrains for small- and medium-sized cars, allowing Chrysler Group to offer an expanded product line including environmentally friendly vehicles. Chrysler LLC and 24 affiliates on April 30, 2009, sought Chapter 11 protection from creditors (Bankr. S.D.N.Y (Mega-case), Lead Case No. 09-50002). The U.S. and Canadian governments provided Chrysler LLC with $4.5 billion to finance its bankruptcy case. In connection with the bankruptcy filing, Chrysler reached an agreement to sell all assets to an alliance between Chrysler and Italian automobile manufacturer Fiat. Under the terms approved by the Bankruptcy Court, the company formerly known as Chrysler LLC in June 2009, formally sold substantially all of its assets to the new company, named Chrysler Group LLC. * * * Chrysler has a 'B1' corporate family rating from Moody's. Moody's upgraded the rating from 'B2' to 'B1' in February 2013. Moody's said that the upgrade reflects Moody's expectation that Chrysler will be able to sustain the progress it has made during the past 18 months in strengthening its competitive position in North America. COMPUTER SCIENCES: Settles Class Action for $97.5 Million --------------------------------------------------------- Andrew Zajac, writing for Bloomberg News, reports that Computer Sciences Corp. (CSC) agreed to pay $97.5 million to settle a class-action lawsuit over alleged false statements about accounting and the company's performance on a multibillion-dollar contract. A proposed settlement was filed on May 15 in federal court in Alexandria, Virginia, and is subject to approval by a judge. A hearing on the accord is set for May 24. The case had been scheduled for trial on May 21. Marcel Goldstein, a spokesman for Computer Sciences, and Deborah Allan, a spokeswoman for the Ontario Teachers' Pension Plan, whose board is the lead plaintiff in the case, didn't immediately respond to phone messages requesting comment on the accord. The settlement covers investors who acquired Computer Sciences common stock from Aug. 5, 2008, to Dec. 27, 2011, according to a filing in the case. Investors alleged that Computer Sciences officials "made false or misleading statements or omitted to disclose material facts" about the effectiveness of internal controls over financial reporting and about the company's performance on a $5.4 billion electronic patient records contract with the U.K.'s National Health Service, according to a memo filed in support of the settlement. The "false statement and omissions caused the price of CSC common stock to be artificially inflated" and subsequently declined "when truthful corrective information was disclosed," lawyers for the plaintiffs said in the memo. Computer Sciences, based in Falls Church, Virginia, took a $1.5 billion writedown on the health service contract for 2011. The company has been under investigation by the Securities and Exchange Commission for accounting issues in that contract, according to its annual report. The case is In Re Computer Sciences Corporation Securities Litigation, 11-cv-00610, U.S. District Court, Eastern District of Virginia (Alexandria). COPA BRAZILIAN: May Face Class Action Over Salmonella Outbreak -------------------------------------------------------------- Peter Jean, Stephanie Anderson and Michael Inman, writing for The Canberra Times, report that dozens of restaurant patrons are expected to launch legal action after they suffered food poisoning after eating at a Dickson restaurant. About 140 people became ill, and 15 were hospitalized, as a result of a salmonella outbreak at the Copa Brazilian Churrasco restaurant. The ACT Health Directorate believes that potato salad served at the restaurant contained salmonella but is still investigating whether any other foods were contaminated as well. At least two law firms could launch legal action on behalf of clients who became ill after eating at the restaurant. Lawyer Ben Aulich, of Ben Aulich and Associates, said his firm had signed up 20 clients for a possible class action in relation to the outbreak. Mr. Aulich said the outbreak was the most serious case of food poisoning that had ever occurred in the ACT. "We have spoken with more than 20 victims so far, some of whom have spent time in hospital, and we expect to commence a class action very shortly," he said. Mr. Aulich said some patients were still in hospital. "Some of our clients who were victims of the poisoning said to us that the Canberra Hospital was like a scene from a war movie. It must have been awful for them," he said. Slater and Gordon Canberra manager Gerard Rees said several people who had fallen ill after eating at the restaurant had contacted his office. Mr. Rees represented 14 people who became sick after buying chicken caesar rolls at the Silo bakery in Kingston in 2011. The cases have since been resolved and are subject to confidentiality agreements. "The legal principle is this: the venue owes a duty to its patrons to provide a product fit for human consumption," Mr. Rees said. "Serving food contaminated with salmonella breaches that duty. I would encourage anyone who has been affected by this latest outbreak of salmonella to seek legal advice." It is not yet clear whether class actions would be launched against the restaurant itself, or another party, such as a food supplier. A Health Directorate spokeswoman said the restaurant could not reopen until the Health Protection Service was satisfied that risk to the public had been resolved. The spokeswoman declined to comment on what charges could be laid against the business, or fines imposed, because the case was still being investigated. A spokesman for Copa Brazilian Churrasco confirmed plans to reopen the restaurant, adding that a further statement would be issued in coming days. Both critics and supporters of the establishment have taken to its Facebook page, some of them posting comments calling for refunds to be given to affected diners as well as a formal apology. There have also been accusations that the restaurant has been deleting comments from the page, prompting the page facilitators to post: "We will not tolerate racist or offensive remarks being posted on this page. "We wish all those affected by the outbreak a speedy recovery back to full health." DOW CHEMICAL: Ordered to Pay $1.2-Bil. to Settle Price-Fixing Case ------------------------------------------------------------------ Casey Sullivan, writing for Reuters, reports that a federal judge in Kansas City, Kansas, ordered Dow Chemical Co. on May 15 to pay $1.2 billion in a price-fixing case involving chemicals used to make foam products in cars, furniture and packaging, according to court documents. Dow was one of several chemical company defendants named in a 2005 class action lawsuit alleging a conspiracy to fix urethane chemical prices, but it was the only defendant not to settle. In January, Dow went to trial in Kansas City and in February a federal jury rendered a $400 million verdict against the chemical company after finding that it conspired to fix prices of urethane. On May 15, U.S. District Judge John W. Lungstrum denied Dow's request to overturn that verdict and the $400 million in damages were tripled under U.S. antitrust law, bringing Dow's overall payment to $1.2 billion. David Bernick, an attorney for Dow, said he would appeal the judgment, saying the statistical formula used by an expert to calculate the price-fixing was not reliable. "Dow looks forward to pursuing these and other grounds for reversal in its appeal," a Dow spokesman said in a news release. "Dow has always denied plaintiffs' allegations of price fixing." Joe Goldberg, an attorney for the plaintiffs, said he was pleased with the judgment. "The jury found the conspiracy caused approximately $400 million in damages to thousands of businesses around the United States," said Mr. Goldberg. Other defendants in the case have settled. In 2006 Bayer AG agreed to pay $55 million. In 2011 Huntsman International LLC agreed to pay $33 million and BASF Corp agreed to pay $51 million. In settling, none of the companies admitted any wrongdoing. The case is In Re Urethane Antitrust Litigation, U.S. District Court, District of Kansas, 04-md-01616. DOW CHEMICAL: To Appeal Price-Fixing Class Action Ruling -------------------------------------------------------- Miles Moore, writing for RubberNews.com, reports that Dow Chemical Co. said it will appeal the ruling by a Kansas City federal judge denying Dow's motion to decertify a price-fixing class action and ordering the company to pay $1.2 billion in damages to the plaintiffs. A jury before the Kansas court found last Feb. 20 that Dow had participated in a long-term conspiracy to fix prices for urethane chemicals between Nov. 24, 2000, and sometime in 2003. At that time, Judge John W. Lungstrum ordered Dow to pay the plaintiffs $400 million. The plaintiffs had originally sought $1.13 billion, Dow said at the time. Dow was the only defendant not to reach a settlement in the multidistrict litigation, which was consolidated in the Kansas court in 2004 and certified as a class action in 2008. Under federal antitrust law, Judge Lungstrum has the authority to triple the damages. In denying Dow's motion for decertification, Judge Lungstrum said Dow filed the motion on Jan. 22, the day before the price-fixing trial began. "Dow has not offered any reason why it could not have filed its motion much earlier, and why it instead field its motion literally on the eve of trial," Judge Lungstrum wrote. "Reconsideration of the court's certification order at that time or even post-trial would cause severe prejudice to plaintiffs, who prepared for a long and complex trial at great expense," he said. Even if Dow had filed its motion in a timely fashion, the motion would have failed on its merits, according to Judge Lungstrum. Dow argued that because a few of the plaintiffs had suffered no damage from the price fixing, the class action as a whole was invalid. But case law is to the contrary, Judge Lungstrum ruled. Judge Lungstrum also denied Dow's motion for a new trial. According to him, Dow did not prove that plaintiffs' evidence of classwide impact and damages was insufficient; that the evidence that Dow participated in the conspiracy was insufficient; or that the imposition of joint and several liability violated the Due Process Clause of the Constitution. "As plaintiffs note and as the jury was instructed, one member of a conspiracy is responsible for the acts of its co-conspirators in furtherance of the conspiracy," Judge Lungstrum wrote. In its statement, Dow said it believes Judge Lungstrum should have decertified the class action based on a recent U.S. Supreme Court decision involving Comcast Corp. "Dow looks forward to pursuing these and other grounds for reversal," it said. Because the circumstances in the urethane price-fixing case were different from those of the Comcast case, the Comcast decision was not applicable, Jude Lungstrum ruled. Dow also said it fully cooperated with the U.S. Department of Justice from 2005 to 2007 in an investigation of the same price- fixing allegations, and that the agency closed the investigations without indicting any person or company. "Consistent with the outcome in the earlier DOJ investigation, Dow should not be held liable in the civil case," Dow said. DR HORTON: 5th Cir. Has Yet to Decide on Arbitration Issue ---------------------------------------------------------- Amanda Becker, writing for Reuters, reports that the 5th U.S. Circuit Court of Appeals will decide soon whether mandatory arbitration agreements signed by workers as a condition of employment can bar them from bringing collective action. The National Labor Relations Board ruled in January 2012 that an arbitration agreement used by homebuilder D.R. Horton violated federal labor law because it required employees not only to arbitrate but to do so on an individual basis. The company appealed to the 5th Circuit and a three-judge panel heard oral arguments in D.R. Horton v. National Labor Relations Board in February. "This case is about whether companies have the right to insert class-action waivers in their arbitration agreements," said Ron Chapman -- ron.chapman@ogletreedeakins.com -- an attorney at Ogletree Deakins representing the company. The decision could help settle a showdown between the NLRB and employers over whether the Federal Arbitration Act can be applied to employees covered by the National Labor Relations Act. The NLRB, in the D.R. Horton case, decided that it could not. But employers said the board had contradicted U.S. Supreme Court precedent. Just the year before, the Supreme Court held in AT&T Mobility v. Concepcion that class action waivers are permitted in standard consumer arbitration agreements. Two months later, in Wal-Mart v. Dukes, the court dealt a blow to employment class actions by ruling that 1.6 million women suing the retailer for gender discrimination could not proceed as a group. After the NLRB's decision in the D.R. Horton case, employment disputes around the country have reached mixed resolutions, with some judges citing the decision as precedent but most saying the agency does not have the authority to reject the federal arbitration statute in employment cases. The 8th U.S. Circuit Court of Appeals, in Sharon Owen v. Bristol Care Inc., is the only federal appeals court that has weighed in on applying the D.R. Horton decision, affirming the validity of mandatory arbitration agreements with class action waivers. Judicial Blackmail The stakes in the 5th Circuit case are high for both employers and unions. Employers have complained that workers brought a flood of litigation in recent years under the Fair Labor Standards Act, prompting them to pursue class action waivers as a way to minimize their exposure. Without the waivers, employers would be forced to settle even meritless claims, Mr. Chapman said. "It's institutionalized judicial blackmail," he said. Two of the country's largest unions have pointed out that since its inception in the 1930s, federal labor law has assumed that workers have the right to bargain collectively and that right should extend to the resolution of disputes in arbitration. "As Congress, the NLRB, and the courts have repeatedly found, workers who cannot join forces to exercise rights in the workplace are powerless in the face of their economically dominant employers," AFL-CIO and SEIU attorneys wrote in a friend-of-the- court brief filed with the 5th Circuit. Mr. Chapman said he expects an opinion could come between now and the end of June. The NLRB has a policy of not commenting on pending litigation. The case is D.R. Horton Inc. v. National Labor Relations Board, 5th U.S. Circuit Court of Appeals, No. 12-60031. For D.R. Horton: Ronald Wayne Chapman, Bernard Phillip Jeweler, Christopher Charles Murray -- christopher.murray@ogletreedeakins.com -- Michael Shetterly -- mike.shetterly@ogletreedeakins.com -- and Mark Stubley -- mark.stubley@ogletreedeakins.com -- of Ogletree Deakins. For NLRB: Linda Dreeben, Ruth Burdick and Kira Dellinger Vol of the NLRB and Beth Brinkmann of the Justice Department. FLEETWOOD: Recalls 4 American Eagle and Tradition Motorhomes ------------------------------------------------------------ Starting date: May 28, 2013 Type of communication: Recall Subcategory: Motorhome Notification type: Safety Mfr System: Steering Units affected: 4 Source of recall: Transport Canada Identification number: 2013181 TC ID number: 2013181 On certain motorhomes, the bracket which secures the power steering gear to the chassis may develop cracks. This could allow the steering gear to partially detach from the chassis, which could result in a loss of steering control and a crash causing property damage and/or personal injury. Correction: Dealers will install reinforcement plates. Affected products: Makes and models affected ----------------------------------------------- Model year Make Model affected ---- ----- -------- FLEETWOOD AMERICAN EAGLE 2010 FLEETWOOD AMERICAN TRADITION 2010 FLEETWOOD: Recalls 40 American Allegiance and Other Motorhomes -------------------------------------------------------------- Starting date: May 28, 2013 Type of communication: Recall Subcategory: Motorhome Notification type: Safety Mfr System: Steering Units affected: 40 Source of recall: Transport Canada Identification number: 2013182 TC ID number: 2013182 On certain motorhomes, the bracket which secures the power steering gear to the chassis may develop cracks. This could allow the steering gear to partially detach from the chassis, which could result in a loss of steering control and a crash causing property damage and/or personal injury. Correction: Since Fleetwood Enterprises Inc (the manufacturer of these vehicles) is no longer in business, Spartan Motor Chassis, Inc. is supplying vehicle owners with this courtesy notice. Owners are advised to contact Spartan at 800-393-8861, to locate an authorized repair facility. The remedy consists of installing reinforcement plates. Affected products: Makes and models affected -------------------------------------------------------- Make Model Model year(s) affected ---- ----- ---------------------- FLEETWOOD AMERICAN EAGLE 2006, 2007, 2008, 2009 FLEETWOOD AMERICAN TRADITION 2006, 2007, 2008, 2009 FLEETWOOD AMERICAN HERITAGE 2007, 2008 FLEETWOOD AMERICAN ALLEGIANCE 2009 GAF MATERIALS: Court Denies Bid to Issue Notice to Class Members ---------------------------------------------------------------- Jack Brooks and Ellen Brooks brought an action against GAF Materials Corporation asserting claims for negligence, negligent misrepresentation, breach of warranty, breach of implied warranties, fraud, violation of the South Carolina Unfair Trade Practices Act, and unjust enrichment arising from GAF's sale of allegedly defective roofing shingles. The case originated as an individual state court action commenced in Newberry County, South Carolina in 2006 and, through various procedural and tactical mechanisms, was again removed to the United States District Court, D. South Carolina in 2011 in its present posture as a class action suit. The matter came before the court on the Plaintiffs' motion for an order directing the issuance of notice to class members. GAF filed a lengthy Response in opposition to the motion. District Judge J. Michelle Childs denied the motion without prejudice to the Plaintiffs re-filing the motion within 30 days of the Order. She said while the court agrees with the Plaintiffs that a hearing on the class notice plan may be appropriate, in order to facilitate such a hearing in a fair and efficient manner, the court and the Defendant require additional information. The court instructs the parties to attempt to reach agreement about the wording and format of the notice. However, to the extent that is not possible, in its re-briefing, the court instructs the Plaintiffs to respond to the Defendant's arguments about the deficiencies of the notice so that the court may adequately address those issues at a hearing. The court hopes the parties may be able to limit the issues necessary for presentation to the court, Judge Childs said. The case is Jack Brooks, on behalf of himself and others similarly situated; and Ellen Brooks, on behalf of herself and others similarly situated, Plaintiffs, v. GAF Materials Corporation, Defendant, Civil Action No. 8:11-cv-00983-JMC, (D. S.C.). A copy of the District Court's May 15, 2013 Order and Opinion is available at http://is.gd/xJr4Asfrom Leagle.com. GLAXOSMITHKLINE: WLF Urges Court to Protect Right to Federal Forum ------------------------------------------------------------------ Jessica M. Karmasek, writing for Legal Newsline, reports that the Washington Legal Foundation urged a federal court on May 15 not to allow Kentucky Attorney General Jack Conway to deprive an out-of- state business defendant of its right to a federal forum by filing a parens patriae suit in state court. In a brief filed in Commonwealth of Kentucky ex rel. Conway v. GlaxoSmithKline in the U.S. District Court for the Eastern District of Kentucky, the foundation argues that out-of-state defendants in interstate cases of national importance ought to be permitted to remove those cases from state to federal court. Congress adopted the Class Action Fairness Act in 2005 to ensure that the right of removal is protected for most such defendants, particularly in cases seeking significant damages and in which the plaintiff is suing to collect for alleged injuries on behalf of numerous individuals, as in the case at issue. CAFA gives federal courts jurisdiction to certain class actions in which the amount in controversy exceeds $5 million, and in which any of the members of a class of plaintiffs is a citizen of a state different from any defendant, unless at least two-thirds or more of the members of all proposed plaintiff classes in the aggregate and the primary defendants are citizens of the state in which the action was originally filed. Business groups and tort reform supporters lobbied for the legislation, arguing that it was needed to prevent class-action lawsuit abuse. In its brief, WLF said it is concerned that remanding such cases to state court will only allow plaintiffs' lawyers to "game the system and avoid removal" -- the very thing that Congress sought to avoid when it adopted the federal statute, it says. "Kentucky's remand motion seeks to frustrate the desire of Congress that cases of this sort be removable to federal court as a means of ensuring that out-of-state defendants can have their cases heard in an impartial forum," WLF Senior Litigation Counsel Cory Andrews said in a statement, after filing the foundation's brief. "Under these circumstances, an order remanding the case back to state court would only serve as a road map for plaintiffs' lawyers seeking to keep their lawsuits out of federal court." The suit was filed in state court by Mr. Conway against GlaxoSmithKline, a leading national pharmaceutical company. The complaint alleges that GSK improperly promoted Avandia, a Type-2 diabetes drug, by making misleading and deceptive claims "in Kentucky and nationwide" about Avandia's efficacy and safety. The attorney general's complaint further alleges that GSK's allegedly improper promotion of Avandia "caused the Commonwealth and its citizens to spend substantial sums for the purchase of and/or reimbursement for Avandia." The lawsuit asks that GSK be required to refund the substantial costs borne by the state and its citizens in purchasing Avandia. GSK invoked CAFA to remove the case from state court to federal court, but the state promptly moved to remand the case back to state court. The suit is not considered a conventional "mass action," as that term is commonly used: Mr. Conway, suing on behalf of the state, is the only named plaintiff in the lawsuit. But WLF argues that the suit is functionally equivalent to a standard mass action in that the attorney general seeks to obtain a recovery for hundreds of Kentucky consumers, identical to the recovery that would be available in a standard mass action. "The mere fact that the Commonwealth is suing in a parens patriae capacity does not divest this court of jurisdiction under CAFA," the foundation wrote in its 21-page memorandum. WLF emphasized that Congress intended CAFA to be interpreted broadly and to be applied to cases of this sort so as to permit removal to federal court. In its brief, WLF also noted that the suit satisfies the requirements under CAFA of a mass action for purposes of removal: it is a civil action where the monetary claims of 100 or more persons are proposed to be tried jointly on the grounds that the claims involve common questions of law or fact; the aggregate amount in controversy is at least $5 million; the claims arise from more than 100 Kentucky citizens who are minimally diverse from GSK. Those claims, WLF also reminded the federal court, are being brought by the state in a representative capacity on behalf of those citizens who allegedly suffered the harm. In its memorandum, filed in opposition to Mr. Conway's motion to remand, the foundation pointed to the U.S. Court of Appeals for the Fifth Circuit's ruling in Mississippi ex rel Hood v. AU Optronics Corp. The Fifth Circuit, in its Nov. 21 opinion, ruled that the removal of a lawsuit involving liquid crystal display panels to a federal district court was proper. The court found that the suit qualified as a "mass action" under CAFA. Mississippi Attorney General Jim Hood, who sued several major suppliers of the LCD panels in Hinds County Chancery Court in March 2011, is now arguing that the suit should remain in a state court. The attorney general says he filed the suit under his parens patriae powers -- to protect the physical and economic well-being of the residents of his state. According to its website, the Washington Legal Foundation works with its allies in government and the legal system to maintain balance in the courts and help the government strengthen America's free enterprise system. The foundation champions free market principles, limited and accountable government, individual rights, business civil liberties and legal ethics, it says. The foundation notes that it devotes a "substantial" portion of its resources to defending the right of class-action defendants to have their disputes resolved in a federal forum. GREAT PERFORMANCES/ARTISTS: Sued Over $3-Mil. in Employee Tips -------------------------------------------------------------- Jamie Schram and Cynthia R. Fagen, writing for The New York Post, report that a hand model stand-in for Edie Falco on the Showtime hit "Nurse Jackie," on May 15 slapped an elite Manhattan catering company with a class action lawsuit, charging it performed a five- finger discount by cheating its employees out of $3 million in tips. Lisa-Marie Palmieri, 42, who has had movie roles in "The Interpreter" with Sean Penn and Lindsay Lohan's "Chapter 27" is suing her former employee, the SoHo-based Great Performances/Artists as Waitresses catering company and its CEO Lisbeth Neumark in Manhattan Supreme Court. Ms. Palmieri claims the catering company bills clients a mandatory "service charge" but doesn't inform them it's not a gratuity for the waitstaff. Instead the company "unlawfully" pockets the service charge. Workers are also instructed to tell clients they are "taken care of" if they are offered a tip at an event. Matthew Blit and Amanda Gudis, high-powered lawyers for the actress who waitresses and bartends between gigs, say the practice is in violation of New York labor law. In the opening sequence of Nurse Jackie, Ms. Palmieri slides on and off a wedding ring on what appears to be Ms. Falco's hand. Ms. Palmieri, who is also running for president of the New York chapter of the Screen Actors Guild, recalls how her hands were first discovered while working at the Kaufman-Astoria studios in Brooklyn as an extra in the now cancelled 2008 "Life on Mars" with Harvey Keitel. When an actress called in sick, "They needed someone to fill in and hand model," Ms. Palmieri told the Post. That led to the next gig on "Nurse Jackie." "They loved my hands. They were smooth and boxy and what the writers of the show wanted. "They put me in the same uniform that she was in, which are blue scrubs." Ms. Palmieri has no idea why her hands were used instead of the star's. "Edie Falco she is very nice woman. She has very delicate hands." But, she added, "That happens all the time. Not everybody's tuchus is their own. It's common for actors and actresses to use stands-ins for body parts for continuity and the character they're playing." HARMONY JUVENILE: Recalls 9,300 Convertible Child Car Seats ----------------------------------------------------------- Starting date: May 28, 2013 Type of communication: Recall Subcategory: Child Car Seat Notification type: Compliance TC System: Seats And Restraints Units affected: 9300 Source of recall: Transport Canada Identification number: 2013180 TC ID number: 2013180 Certain child car seats may not comply with the dynamic testing requirements of Motor Vehicle Restraint Systems and Booster Seats Safety Regulations. During testing, bolts that secure the base of the seat to the backrest were observed to tear through, or partially through, the plastic shell, leaving exposed sharp edges and protrusions. These sharp edges could injure a child occupant, or a parent/caregiver. Correction: All registered owners will receive the parts and installation instructions necessary to reinforce their car seats. Non-registered owners of affected car seats, or owners who have moved, should contact Harmony Juvenile Products' customer service department (1-877-306-1001) to receive instructions regarding obtaining the reinforcement parts. The affected car seats should not be returned to the retailer. Affected products: Makes and models affected ----------------------------------------------- Model year(s) Make Model affected ---- ----- ------------- HARMONY JUVENILE V7 3-IN-1 2011, 2012 PRODUCTS CONVERTIBLE CARSEAT HARMONY JUVENILE: Recalls 9,300 V7 3-IN-1 Convertible Car Seats --------------------------------------------------------------- Starting date: May 28, 2013 Type of communication: Recall Subcategory: Child Car Seat Notification type: Compliance TC System: Seats and Restraints Units affected: 9300 Source of recall: Transport Canada Identification number: 2013179 TC ID number: 2013179 Certain child car seats may not comply with the requirements of Motor Vehicle Restraint Systems and Booster Seats Safety Regulations. The lower universal anchorage connectors may be wider than regulations permit. As a result, users may have difficulty installing the restraint in some vehicles when using the lower connector system. Incorrectly latched lower connectors may not securely restrain the child seat during a vehicle crash, possibly leading to serious injury. Note: The lower connector system can continue to be used if the connectors can be latched securely. If not, the car seat should instead be secured with the vehicle seat belt, following the manufacturer's installation instructions. Correction: All registered owners will receive instructions on how to obtain the new lower connector system, if it is required. Non-registered owners of affected car seats, or owners who have moved, should contact Harmony Juvenile Products' customer service department (1-877-306-1001) to receive instructions. The affected car seats should not be returned to the retailer. Affected products: Makes and models affected ----------------------------------------------- Model year(s) Make Model affected ---- ----- ------------- HARMONY JUVENILE V7 3-IN-1 2011, 2012 PRODUCTS CONVERTIBLE CARSEAT HEARST CORP: Critics of Unpaid Internships Balk at Baer's Ruling ---------------------------------------------------------------- Alan Farnham, writing for ABC News, reports that a group of unpaid interns, suing for back pay they claim is owed them, have hit a legal wall: A New York judge has dismissed their class-action suit against Hearst Corp., saying they don't meet the definition of a class. If they want to sue, they will have to do so as individuals. The setback comes at a time when tens of thousands of college students are seeking summer internships -- many of them unpaid. New York attorney Maurice Pianko, whose website Intern Justice, acts as an aggregator of intern lawsuits and a disseminator of legal information, says the ruling by District Judge Harold Baer Jr. will make it much harder for this particular group of unpaid interns to pursue its claim. "It's not good," he told ABC News. "If it can't be done by a class action, then very few will sue, and very few lawyers will take the cases." Mr. Pianko said that while many attorneys might find class action financially attractive, because the aggregate wages would represent a lot of money, the individual cases are worth at most a few thousand dollars each to an attorney -- hardly enough to pay filing costs. According to Judge Baer's ruling, the class action was brought by intern Xuedan Wang and a group of her fellow interns, all of who had worked unpaid for the magazine division of Hearst Corp. Ms. Wang, starting in August 2011, worked five days a week for Harper's Bazaar, serving as a contact between editors and public relations representatives. The other plaintiffs worked for Cosmopolitan, Marie Claire, Redbook and other Hearst magazines. The interns claimed they did the same work as full-time employees, and that they were entitled to the same protections under state and federal labor laws. Hearst argued (and Judge Baer agreed) that the applicable law here was a 1947 U.S. Supreme Court decision that held that "trainees" who work for free during a program of instruction are not employees, for purposes of federal labor law. Hearst, wrote the Judge, showed that the interns had indeed received "some" training. Judge Baer further found that the work done by the interns and the benefits they received varied too much for the individuals to constitute a class. "Judge Baer reached exactly the right conclusion," said Hearst general counsel Eve Burton, in response to a request for comment from ABC News. Ross Perlin, a critic of unpaid internships and author of the book "Intern Nation: How to Earn Nothing and Learn Little in the Brave New Economy," called Judge Baer's decision disappointing. He told ABC he agreed that the decision will make it harder for interns to find legal representation as a class. But, he said, the decision doesn't mean that interns, working for other employers and doing more uniform tasks, might not constitute a class. Employers, says Mr. Perlin, have been chastened by the Hearst suit and by a successful lawsuit brought by former interns who worked for TV talk show host Charlie Rose. "A lot of employers have quietly changed their policies," he tells ABC News. "Some have started paying. There definitely is a greater likelihood, now, that, if you're a student looking for a summer internship, the one you find will be a paid one that might have been unpaid a few years ago." According to Forbes' Betty Graumlich, Cindy Schmitt Minniti and Mark S. Goldstein, unpaid internships are a mutually beneficial staple of the American business landscape. They provide raw workers, generally students, with a glimpse into a particular industry at no cost to the company. Especially in these uncertain economic times, internships provide unemployed students with crucial real-world experience. But no good deed goes unpunished. In the past few years, several high-profile companies have fallen victim to lawsuits brought by former interns for alleged wage and hour violations. Recently, however, this wave of class action litigation hit a major roadblock. On May 8, 2013, federal District Court Judge Harold Baer rejected a group of former interns' bid for class action certification in their suit against Hearst Corporation. In another major blow to the interns, Judge Baer also held that it was appropriate for a jury, rather than the court, to decide whether the interns should have been classified as "employees." In February 2012, former Harper's Bazaar intern Xuedan Wang slapped Hearst, Harper's parent, with a lawsuit. She and other interns claimed that Hearst improperly classified them as interns because they performed the tasks and had responsibilities of actual employees, and failed to pay them appropriately. According to Ms. Wang, "unpaid interns are becoming the modern-day equivalent of entry-level employees, except that employers are not paying them for the many hours they work." However, Judge Baer denied Wang's bid to certify as a class "all persons who worked as unpaid interns at Hearst Magazines" since February 2006. Judge Baer found that Hearst's policy of hiring unpaid interns did not demonstrate enough commonality between the proposed class members. In the court's opinion, "[t]he evidence of a corporate-wide policy of classifying the proposed class members as unpaid interns is insufficient [for class certification], as that policy alone cannot answer the liability question, which turns on what the interns did and what benefits they received during their internship." Beyond this slight common thread, the court noted a number of factual dissimilarities among the proposed class members, including working for different magazines and performing differing duties and tasks. Class action denial means that the interns may now proceed against Hearst only on an individual basis. On the interns' claim that Hearst needed to pay them as employees, the court found issues of fact that required a jury trial. Hearst's showing that the interns' work had met, at least in part, some of the Department of Labor's criteria for intern classification, made pre-trial judgment inappropriate. The court failed, however, to articulate a clear-cut standard for determining whether interns may, in certain circumstances, be deemed employees. What is the Takeaway? Lawsuits by former unpaid interns are exceedingly popular right now. By denying class certification, Judge Baer's ruling may make these lawsuits less attractive. Despite the small hope provided by the Hearst decision, however, employers must still remain vigilant in properly classifying interns. Under United States Department of Labor regulations, an intern must be classified as an employee unless the employment relationship meets each of the following six criteria: (1) the internship is similar to training given in an educational environment; (2) the internship experience is for the benefit of the intern; (3) the intern does not displace regular employees; (4) the employer derives no immediate advantage from the intern's activities; (5) the intern is not necessarily entitled to a job at the conclusion of the internship; and (6) the employer and the intern understand that the intern is not entitled to wages. If the internship does not meet each of these criteria, the intern must be paid in accordance with all applicable wage and hour requirements. Regardless of the Hearst ruling, employers must decide whether using unpaid interns is worth the risk that it now poses. LEIGHTON HOLDINGS: Faces Class Action Over Profit Write-Downs ------------------------------------------------------------- The Sydney Morning Herald reports that a class action lawsuit relating to more than $1 billion in profit write-downs will be added to the list of Leighton Holdings shareholder concerns. Law firm Maurice Blackburn served a legal letter notifying the construction group of its proposal to begin a class action, which has been about 18 months in the making. "We are ready to file a class action against Leighton and confirm that we have sent a draft statement of claim to Leighton," said Rebecca Gilsenan, principal class action lawyer at Maurice Blackburn. The claim will allege Leighton misled the market about its true financial position from at least August 16, 2010, until the disclosure on April 11, 2011. As late as February 2011, Leighton had forecast a full-year net profit of $480 million, before stunning investors with a projected $427 million loss just two weeks later, driven by more than $1.1 billion in write-downs relating to cost blowouts on the Victorian desalination plant and Brisbane Airport Link projects. "The 11 April 2011 announcement signalled the worst annual loss in the company's history," Ms. Gilsenan said. "The participants in the claim will allege that Leighton misled the market about its true financial position." A statement from Leighton to the stock exchange on May 17 denied there was any "proper basis" for a claim and that the company would "vigorously defend" a class action. The Australian Securities and Investments Commission launched a separate investigation following the controversial write-downs and fined the company $300,000 in March last year and told Leighton to improve its corporate governance. But corporate governance remains a chief concern among Leighton investors, exacerbated by the mass show of dissent from then chairman Stephen Johns and four independent directors. Mr. Johns resigned as chairman, along with directors Wayne Osborn and Ian Macfarlane in protest over what they saw as interference in the board's independent operation by Leighton's German majority shareholder Hochtief (which in turn had been taken over by Spanish construction giant Grupo ACS). Bob Humphris, who is now chairman, and Paula Dwyer, who is chairing a committee to find three new directors, also expressed concerns but decided to stay with the company. LUZERNE COUNTY, PA: Judge Certifies Juvenile Center Class Action ---------------------------------------------------------------- Adrianne Walvoord, writing for The Legal Examiner, reports that Senior U.S. District Judge A. Richard Caputo recently ruled that the lawsuits involving the Luzerne County juvenile detention center scandal may proceed as a class action for the specific purpose of determining liability of the remaining defendants. The Court's order is a huge victory for Class Plaintiffs. In the Order, Judge Caputo wrote: "the litigation is premised on claims by juveniles relating to the denial of their constitutional rights during the course of their adjudication proceedings . . . many class members harbor a distrust of the judicial system, rendering it unlikely that they will seek redress individually. Thus, allowing '[this case] to proceed as a class action would not be removing claims from the hands of the class members, but would instead afford them an opportunity to pursue them.'" The certified classes, specifically defined in the Order, include more than 2,400 juveniles and their parents or guardians. The Order also appoints Anapol Schwartz as Class Counsel, along with Hangley Aronchick Segal Pudlin & Schiller and the Juvenile Law Center, and applauds "their impressive qualifications" and "considerable ability in prosecuting this case." Class Counsel "has pursued this action vigorously and with great dedication on behalf of all Plaintiffs." Anapol Schwartz partner Sol H. Weiss has led the helm as Class Counsel for Anapol Schwartz. The remaining defendants in the civil-rights lawsuit include former judges Mark Ciavarella Jr. and Michael Conahan; PA Child Care LLC, Western PA Child Care LLC and Mid-Atlantic Youth Services Corp. (these three companies are referred to as "Provider Defendants" in court documents); and Robert J. Powell and Vision Holdings, the former co-owner of Provider Defendants. Robert Mericle and Mericle Construction Co. are no longer defendants in the lawsuits. On December 14, 2012, the Court approved a $17.75 million settlement between Settlement Class Members and the Mericle parties. MADISON COUNTY, IL: Motions to Dismiss Tax Class Action Filed ------------------------------------------------------------- Sanford J. Schmidt, writing for The Telegraph, reports that defendants have filed more motions to dismiss class action lawsuits brought in Madison County Circuit Court over a scheme to rig bids in the annual tax sales under former County Treasurer Fred Bathon. One of the motions seeks to dismiss a suit filed by Republican lawyer John Barberis on the basis that it was filed too late. Mr. Barberis, of Collinsville, ran unsuccessfully against Democrat Mark Von Nida in November's race for Madison County circuit clerk. Mr. Barberis was the first attorney to file a proposed class action suit in connection with the fraud scheme. Mr. Bathon is a Democrat. A defendant in that case, SI Securities, moved to dismiss the case on the claim that the statute of limitations time limit was up when the case was filed. Mr. Barberis represents Scott Bueker, Dawn Bueker, Jason Moss, and Christine and Guideon Richeson, who allegedly were forced to pay the maximum 18 percent penalty when their tax debts were sold at the annual auction conducted by the Madison County Treasurer's Office. SI Securities points out the original class action was filed Feb. 21. An amended complaint was filed on March 1. The Barberis suit refers to a stipulation of facts as cited by the U.S. District Court for the Southern District of Illinois in which Mr. Bathon pleaded guilty. The parties stipulated that from 2005 through 2008, Mr. Bathon oversaw a "bid-rigging and price-fixing scheme." Mr. Bathon pleaded guilty to violating the Sherman Antitrust Act. The motion to dismiss claims an action under the act must be filed within four years of the alleged violation. An action based on an alleged conspiracy must be filed within five years, the motion claims. SI Securities claims that the class action suit fails to state any alleged facts that would support a conspiracy between the defendant and Mr. Bathon. A similar motion to dismiss was filed by defendants John Vassen, V.I. Retirement Plan and V.I. Inc. The proposed class action suits name Mr. Bathon, Madison County and a number of the tax buyers as defendants. The auction allows the buyer to acquire the debt and collect it, plus an interest penalty. The low bidder gets the debts and pays the county the amount of taxes owed. The tax buyer can collect the debt, plus the penalty. Under the illegal scheme, the favored buyers could collect the statutory maximum 18 percent interest, resulting in huge profits. Even greater returns were possible if the debtor were unable to pay, including the chance to foreclose on the property. The favored buyers allegedly had their bids of 18 percent in most cases recognized without giving others a chance to bid lower. Contributors to Mr. Bathon's campaign allegedly were given preferential seating. Most delinquent tax debtors then would be stuck with an 18 percent debt. In the most recent auction conducted by Treasurer Kurt Prenzler, a Republican, the average interest rate was 3.7 percent. Defendants also have filed motions to dismiss against a proposed class action filed by attorney Brian E. McGovern of Chesterfield, Mo. The plaintiff in that case is Virgil Straeter. Defendants Dennis Ballinger, Empire Tax Corp. and Vista Securities are moving to dismiss on the basis that activities of local government are exempt from anti-trust actions. They claim that the original suit alleges no fact as to how much of the market share the defendants controlled or any other fact that would support a claim of an anti-trust action. Mr. Bathon and Robert Luken also have filed motions to stay any further action in the class actions until the criminal case is completed. When Mr. Bathon pleaded guilty, federal prosecutors announced that the investigation is not completed. MCGRAW-HILL COS: 2nd Cir. Affirms Royalties Class Action Dismissal ------------------------------------------------------------------ Ryan Davis, writing for Law360, reports that the Second Circuit on May 16 upheld the dismissal of a proposed breach of contract class action claiming The McGraw-Hill Cos. underpaid authors for royalties on books sold outside the U.S., ruling that the payments were in line with the authors' contracts. U.S. District Judge Andrew L. Carter Jr. ruled in October that the royalty payments the plaintiffs alleged were unfair were expressly allowed by the contracts, and the Second Circuit said it was affirming for "substantially the reasons stated by the district court." MERVIN MANUFACTURING: Recalls 8K Pairs of GNU Snowboard Bindings ---------------------------------------------------------------- The U.S. Consumer Product Safety Commission in conjunction with Health Canada and in cooperation with Mervin Manufacturing, of Seattle, Washington, announced a voluntary recall of about 6,800 pairs of GNU Snowboard Bindings in the United States of America and 1,200 pairs in Canada. Consumers should stop using this product unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. The ankle straps can break posing a fall hazard. The firm has received 30 reports of the binding straps breaking. No injuries were reported. The recalled snowboard bindings include men's, youth, and women's sizes. The bindings attach to the snowboard with screws, and to the snowboard boot with straps with buckles. The brand name "GNU" is imprinted on the front of the straps or on the baseplate. The SKU number can be found on the model sticker located on the original packaging. The following styles and SKU numbers are included in the recall: Name SKU # ---- ----- MEN'S AGRO 213710 - 213720 BACKDOOR 213105 - 213115 CHOICE 213510 - 213540 MUTANT/BIGFOOT 213610 - 213640 PSYCH 213410 - 213460 STREET 213205 - 213235 WEIRD 213305 - 213355 YOUTH GNUNIOR 213005 WOMEN'S B-FAMOUS/YETI 214405 - 214435 B-FREE COPPER 214305 - 214335 B-HERE 214205 - 214230 B-REAL 214105 - 214130 B-TRUE 214005 - 214010 Pictures of the recalled products are available at: http://is.gd/ooF9Oj The recalled products were manufactured in Slovakia and sold at Specialty Sports Inc., REI and other national, small chain and independent sporting goods stores, and online at http://www.backcountry.com/and http://www.mervin.com/from August 2012 to March 2013 for between $125 and $310. Consumers should immediately stop using the bindings and contact Mervin Manufacturing for instructions for receiving free replacement straps. Mervin Manufacturing may be reached at (800) 905-0551 from 9:00 a.m. to 5:00 p.m. Pacific Time Monday through Friday or online at http://www.mervin.com/and click on Recall for additional information. MICHIGAN: Judge Allows Class Action Over Asset Seizures to Proceed ------------------------------------------------------------------ The Associated Press reports that a federal judge has cleared the way for a class-action lawsuit challenging how the state of Michigan seized assets without court approval to cover overdue taxes. Judge Nancy Edmunds says a class will be certified only for the purposes of determining whether the state is liable. Any financial award would be handled separately. There could be more than 150 parties in the case. The lawsuit was filed by the owner of Copper Canyon, a brew pub in Southfield. In 2010, Michigan treasury agents changed locks and temporarily seized liquor and cash with a warrant that was never reviewed by a judge. Copper Canyon says its rights were violated and its reputation suffered. The state says the seizure policy was changed later in 2010. MOUNT OLIVET, KY: Sued Over Occupational Tax Ordinance ------------------------------------------------------ Wendy Mitchell, writing for The Ledger Independent, reports that allegedly missing mapping related to a 2002 occupational tax ordinance has prompted a lawsuit against the City of Mount Olivet, filed by Robertson County School teacher Josh Underwood, ". . . on behalf of himself and others similarly situated," making it a class action suit. The suit cites what it calls several facts, including the annexation of school property at the site of Deming School by the city in 2002. "Prior to January 2002, the Deming School Property was situated partially or entirely outside the city limits of the city of Mount Olivet," the suit claims as a fact. Mr. Underwood is represented by Attorney Jeffrey C. Shipp. Following adoption of an ordinance in fall of 2001, in January 2002 the city began levying a 1 percent occupational tax on Robertson County School District employees. According to the suit, Mr. Shipp contends it was not until April 2002 when Mount Olivet adopted Ordinance 234 declaring its intent to annex a larger portion of the school property. The suit claims no accurate map or description of the area to be annexed was recorded in the Robertson County Clerk's Office and subsequently is not in the records of the Kentucky Secretary of State, as required, causing the collection of occupational tax from Underwood and others to be illegal. Mapping versions of the city limits vary, including a contention of the city, raised in 2001, that the actual city limit was established in 1871 as 120 pole (.038 mile) from the city center. A Kentucky map from 1999 lists the size at half a mile, city officials said in 2001. A current MapQuest image appears to be from the 1999 map, with only a fraction of the school building and former school board office included. On a U.S. Geological Survey Mount Olivet map image on TopoQuest the city limit appears to encompass most of the Deming School property. The suit asks for a jury trial, reasonable costs, attorney fees and "such other relief as the court may deem just and proper." In reply, the city, represented by Attorney W. Kelly Caudill, replied to the compliant, claiming "The plaintiff's complaint fails to state a cause of action against the defendant upon which relief can be granted," while agreeing the Robertson County School Board owned property on U.S. 62 known as Deming School Property and that the city levied the tax beginning in 2002. But, Ms. Caudill replied to the court, the city denied allegations in 13 paragraphs of the complaint and claimed the city was "without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraphs 8,9,10,11,12 and 13 . . . and therefore denies each and every allegation therein." According to the complaint, the first 13 paragraphs relate to a violation of KRS 81A.470, which addresses lack of appropriate mapping for annexation, and paragraphs 1-18 which relate to the act of conversion of misappropriated funds for the use and benefit of the city. Ms. Caudill asked for the case to be dismissed and the city be awarded attorney fees and "all other relief to which it appears entitled." According to published reports from 2001 and 2002, Mount Olivet officials enacted the ordinance to generate revenue for its general fund, which pays city operating expenses, general administrative costs and the cost of the police department. Allegedly anticipating the new Robertson County School District opening well outside the Mount Olivet city limits, with revenue from employees to be cut from the city coffers, in late fall 2012, Mount Olivet Mayor Linda Reed confirmed, the police chief had been terminated and the sole police cruiser was parked until other revenue could be found to operate a police department. The new Robertson County School opened in late February, moving all educational operations to the new facility, with intentions of demolishing the old Deming School. On average, school officials said, the school district employs about 65 people. According to past estimates, more than $20,000 per year has been collected since 2002 in occupational taxes by Mount Olivet, from school district employees, school officials said. NEW YORK: Judge Tosses FLSA Overtime Class Action v. City Health ---------------------------------------------------------------- Megan Stride, writing for Law360, reports that a New York federal judge on May 15 tossed a putative class action accusing New York City Health and Hospitals Corp. of violating the Fair Labor Standards Act by depriving hourly employees of overtime pay, but left the plaintiff a chance to amend his complaint to add more detailed allegations. U.S. District Judge Paul A. Engelmayer found that plaintiff Jerome Cromwell failed to allege precisely when, or at what point during his more than two decades of employment with HHC, he worked more than 40 hours per week. NEW YORK: DOJ Eyes "Stop-and-Frisk" Constitutionality ----------------------------------------------------- Joseph Straw, writing for New York Daily News, reports that Attorney General Eric Holder told lawmakers on May 15 that the Justice Department is eyeing the constitutionality of the NYPD's stop-and-frisk policy and weighing action. A federal class action lawsuit challenging the practice -- in which citizens are stopped, questioned and frisked on city streets absent suspicion -- awaits a ruling from Manhattan Judge Shira Scheindlin. Plaintiffs claim the practice profiles young black and Hispanic males, who constitute most subjects. The city asserts that the benefits to public safety justifies it. During an oversight hearing House Judiciary Committee member Hakeem Jeffries (D-Brooklyn), raised a June 2012 meeting between Mr. Holder, city lawmakers, and members of the Congressional Black Caucus that addressed stop-and-frisk. "We have not reached any final determinations but this is something that is under review at the Justice Department," Mr. Holder said. "I hope that we will be able to move this along. I know there is a civil suit from which a lot of information is coming out, but it is something that, -- as I think I said then -- that we were prepared to look at and something that in fact we are examining." Mr. Jeffries urged "an expedited conclusion" to the Justice Department review but acknowledged its sensitivity. PEMEX: Tabasco Residents File Class Action Over Oil Spills ---------------------------------------------------------- Inter Press Service reports that fed up with oil spills from facilities belonging to Mexico's state oil company Pemex, residents of two communities in the southeastern state of Tabasco are taking the country's largest company to court in a bid for compensation for damage to the environment and agriculture. The people of Cunduacan and Huimanguillo, which have a combined population of 300,000, will present a class action lawsuit against Pemex in June. "There have been several harmful effects; we have carried out tests on soils, sediments and water and we are about to receive the results," Marisa Jacott, the head of Fronteras Comunes (Common Borders), an environmental NGO, told IPS. Fronteras Comunes and the Asociacion Ecologica Santo Tomas (Santo Tomas Ecological Association) are providing legal advice to the local population, mainly small farmers and fisherfolk, who have incurred great losses due to oil spills and gas explosions. Mexico's 2011 Class Action Law allows individuals and the federal consumer protection agency to sue state and private companies. However, the law does not provide for reparations. The oil industry has been active in Tabasco since the early 1950s, and expanded there from the 1970s onwards with the construction of petrochemical plants, pipeline networks and storage facilities, sparking an economic boom. But the boom did not result in benefits for the local communities. Instead, the oil industry displaced traditional activities like banana farming and cattle ranching. The oil industry is active in 13 of Tabasco's 17 municipalities, producing 500,000 barrels per day (bpd) -- of a national total of 2.5 million bpd -- according to the Mexican Petroleum Institute (IMP). "There is environmental pollution and crop destruction, and there are soils that have lost their fertility. This means that harvests are not as abundant as they were before," Lorena Sanchez, head of the Tabasco Human Rights Committee (CODEHUTAB), an NGO that has received complaints from local people about these problems, told IPS. "It has affected people's diets and caused respiratory health problems as well as blood and skin diseases," she said. Since 2011, CODEHUTAB has brought four lawsuits to the federal environmental protection agency, PROFEPA, that have resulted in fines for Pemex, but not in reparations for victims in local communities. The most recent case, this year, was related to seven gas flares burning in the municipality of Para�so, where CODEHUTAB took blood samples from 50 children between the ages of seven and 15. Ten percent of the samples had chromosome alterations, linked by the epidemiologists to oil industry activity. PROFEPA estimates there are an average of 20 crude spills a year in Tabasco. Between 2008 and 2012, the environment ministry recorded 102 sites contaminated by environmental emergencies in the country caused by Pemex, including three in Tabasco. In addition to Tabasco, the eastern and southeastern states of Veracruz, Tamaulipas, Hidalgo and Puebla and the highways connecting them to Mexico City are regarded as vulnerable to oil industry activity. The oil industry in this region produces pollution with heavy metals, ozone, sulphur dioxide, nitric oxide, volatile aromatic compounds like benzene, hydrogen sulphide, salts, ammonia, cadmium and acids, all of which are harmful to the environment and human health, the NGOs complain. Manuel Pinkus-Rendon and Alicia Contreras, academic researchers at the Autonomous University of Yucatan, concluded in a study published last year that "the social and environmental fabric of Tabasco reflects a regional development potential considerably below that which existed over 60 years ago, as a result of environmental degradation." For their study "Impacto socioambiental de la industria petrolera en Tabasco: el caso de Chontalpa" (Social and environmental impact of the oil industry in Tabasco: The case of Chontalpa), the authors interviewed 200 residents of four towns in the municipality of Cardenas, 65 percent of whom expressed negative views about oil industry activity, especially because of the pollution and destruction it causes. "It is a case that has not been addressed. We want the judges to have the fewest possible reasons to reject it," said Jacott, of Fronteras Comunes. In April, the local residents presented a complaint to the National Commission on Human Rights. In 2004 they had filed a legal complaint against Pemex in the attorney general's office, but it went nowhere. The environmental organizations and local residents have spent two years building their case. The next step will be legal action over damage suffered in the adjacent state of Veracruz, another major oil-producing region. "We want them to take the required preventive measures. All Pemex does is supposedly carry out remediation of the damage, but it does not invest in maintaining the pipelines and guarding the area," CODEHUTAB's Sanchez complained. The organizations are asking for an assessment of the state of ecosystems in Tabasco, and the dissemination of Pemex's policies and guidelines for preventing leaks, addressing environmental contingencies and cleaning up polluted sites. They are also calling for the gradual replacement of fossil fuels with alternative energy sources, as well as regular measurements of the main atmospheric pollutants in affected areas. PILOT FLYING J: Freeh Group to Help in Rebate Scam Investigation ---------------------------------------------------------------- WBIR reports that a Georgia attorney who is representing several trucking companies in a suit that is seeking class action status against Knoxville-based Pilot Flying J said the case is getting some high-profile help. Mark Tate confirmed to 10News that former FBI director and former federal judge Louis Freeh's firm, the Freeh Group, has agreed to work with the trucking companies who believe they were cheated in an alleged rebate scam. Tate said the Freeh Group has a large group of investigators and accountants who will help the trucking companies make their case. Tate said they face a big burden in their lawsuit and they are thrilled to have help fighting what he called C.E.O. Jimmy Haslam's "billionaire's antics." When contacted about the Pilot Flying J investigation, a spokesperson for the Freeh Group said, "We have no comment." Duncan School of Law Asst. Professor, Matt Lyon, said the hire takes the case to another level. "Obviously it's going to raise the profile of lawsuit significantly that you have someone of that stature involved, a national name that everyone knows," Mr. Lyon said. "I'm sure one reason they've hired Mr. Freeh and his consulting firm is that idea, 'let's do an investigation and see what we can find out maybe that the government didn't find out." Late last month, a judge in Knoxville denied Mr. Tate's request for a temporary restraining order to keep Pilot Flying J from contacting customers. The attorney claimed that Jimmy Haslam was contacting the companies, getting releases from them, and settling claims before companies knew about the full extent of the allegations. Pilot attorneys argued that the truck stop company was trying to make things right and denied asking customers to sign a release. Mr. Tate also claimed that a full-page newspaper ad placed on May 11 in support of the Haslam family was "engineered" by Jimmy Haslam. "He ran that ad as a warning, as he's in the largest fight of his professional career," Mr. Tate said. But Randy Massey, who purchased the ad, said it was his idea. "It's just a point of appreciation. It's nothing more except trying to say to the Haslam's, 'Thank you,' for everything you've done for us," Mr. Massey said. SEQUEL NATURALS: Recalls Vega(R) Sport Brand Protein Bars --------------------------------------------------------- Starting date: May 25, 2013 Type of communication: Recall Alert sub-type: Allergy Alert Subcategory: Allergen - Milk Hazard classification: Class 2 Source of recall: Canadian Food Inspection Agency Recalling firm: Sequel Naturals Ltd. Distribution: National Extent of the product distribution: Consumer CFIA reference number: 8037 The Canadian Food Inspection Agency (CFIA) and Sequel Naturals Ltd. are warning people with allergies to milk not to consume the Company's Vega(R) Sport brand Protein Bar. The affected product contains milk which is not declared on the label. This product has been distributed nationally. There has been one reported allergic reaction. Consumption of this product may cause a serious or life- threatening reaction in persons with allergies to milk. The distributor, Sequel Naturals Ltd., Burnaby, BC, is voluntarily recalling the affected product from the marketplace. The CFIA is monitoring the effectiveness of the recall. Affected products: Code(s) Brand name Common name Size on product ---------- ----------- ---- ---------- Vega(R) Sport Natural Plant-based 60 g Lot Code 12296C Protein Bar Chocolate Coconut UPC: 8 38766 10830 8 Additional info: Best By Date 19-NOV-13 Picture of the recalled products' labels is available at: http://is.gd/zCZ1w0 SOVEREIGN GRACE: Judge Dismisses Most of Child Sex Abuse Suit ------------------------------------------------------------- Greta Kreuz, writing for ABC7News, reports that a judge has dismissed most of a lawsuit alleging child sexual abuse and conspiracy to cover up at a large church in Maryland. But the ruling by Montgomery County Circuit Court Judge Sharon V. Burrell didn't address the allegations of abuse. She ruled that the plaintiffs had to sue within three years of turning 18 and that date has passed for most of the alleged victims. Two of the plaintiffs recently turned 18, but they live in Virginia. The pastors and churches charged in the lawsuit could still face criminal charges because there is no statute of limitations on felonies. Renee Palmer Gamby was just a toddler when she says she was molested by a male babysitter from her church. Covenant Life in Gaithersburg was the flagship church of the Sovereign Grace Ministries denomination until this past December, when it pulled out. Renee's mother said that when she called their pastor about the abuse, he told her not to call police. Instead, Renee said she was required to meet with her alleged perpetrator and forgive him. Renee and her mother said they thought they were the only victims. But years later, they found story after story on the "Sovereign Grace Ministries Survivors" blog. And now several are going public in what they hope will be a class-action civil lawsuit. "We are alleging that a group of men, pastors, conspired together to cover up ongoing sexual abuse of children," said Susan Burke, civil lawsuit attorney. The suit alleges decades of brutal sexual and physical abuse of young children --boys and girls -- from the 1980s on, at both Covenant Life Church, and Sovereign Grace Church of Fairfax. The Covenant Life plaintiffs allege beatings, rapes, including a gang rape, and molestations at the church-run elementary school and at other church functions. During the abuse, the school was housed at the Frost Center in Aspen Hill, and Sunday services were then held at Magruder High School. One alleged abuser is Stephen Griney, a former Bible studies teacher who also headed the children's ministry. The suit details a gang rape where adults wore masks and the victim was an 8-year- old girl. The lawsuit also names four current officials of the Fairfax church, again, alleging an orchestrated cover-up of child sex abuse incidents and failure to report them to police. The accusations also say children were forced to meet and forgive the accused, and pastors failed to notify other families -- so the perpetrators went on to prey on other children. One of those alleged perpetrators is Nathaniel Morales, a Covenant Life member currently jailed on criminal child sex abuse charges in Montgomery County. "The pastors were on notice. He had other victims," explained Ms. Burke. "They had been told by the victims that Morales had molested them and they did nothing about it." Another of the accused predators was then-Covenant Life pastor and school principal John Loftness. The suit claims he repeatedly molested two young girls, one a 5-year-old. Mr. Loftness is now the pastor at Solid Rock Church in Riverdale, Maryland, which is not named in the suit. ABC7 went to Solid Rock Church, but were told Mr. Loftness was out all week. Mr. Loftness did post a letter to church members, denying ever abusing a child, or shielding any pedophile. Dara Sutherland said in 1987, when her then 14-year-old sister accused their father, David Adams, of having molested her for three years, their mother went to police. And she says the pastors punished the family instead. "Basically threw us out of the church, supported the pedophile and provided him with an attorney," said Ms. Sutherland. On May 16, Ms. Sutherland says David Adams, who did serve jail time for child abuse, is still active at Covenant Life, and manages a children's music band. UNITED STATES: ACLJ Mulls Class Action Over IRS Targeting --------------------------------------------------------- The American Center for Law and Justice was expected to file suit in federal court over the targeting of 14 of its clients by the IRS soon. Jay Sekulow, ACLJ chief counsel, told The Daily Caller on May 15 planned to file suit and has a team of lawyers working on the issue. ACLJ has not decided whether it will file one class action suit on behalf their aggrieved clients or separate suits. "We are looking at the issue of whether it could be certified as a class or whether we would have to bring each claim as an individual claim," he explained. "Which would mean we would be filing some in Cincinnati or the District Courts in Ohio, some in the district courts in California, some in the District of Columbia. We are looking at all that." According to Mr. Sekulow, it is too early in their review process to know whether the conservative groups that the IRS targeted for enhanced scrutiny would qualify as "a class certifiable action." "You have a number of aggrieved parties coming out of the same targeting, so we are looking at [a class action suit]," he explained. "The difference in our case is -- this is the technical side -- some have been granted status and they still may be filing suit because of the fact that they were targeted." Of the 27 Tea Party groups ACLJ represents, 10 were still awaiting responses on their tax exempt status and recently received another letter of inquiry about one of their clients from the IRS. Currently ACLJ has 14 plaintiffs. "It would be much more judicially economical for the courts and for everybody, to have it in one court, but we don't have the answer to that yet," he added, noting that especially after the release of the inspector general report on May 14 he cannot imagine anything that would sway ACLJ against litigation. UNITED STATES: Hennepin County's Judgment Bid in FCRA Suit Denied ----------------------------------------------------------------- District Judge Donovan W. Frank denied a motion for judgment on the pleadings brought by Defendant Hennepin County in the lawsuit captioned Kevin W. Rouse, Emily M. Rouse, and Brian L. Ranwick, on behalf of themselves and all others similarly situated, Plaintiffs, v. Hennepin County, Defendant, United States of America, Intervenor, Hennepin County, Third-Party Plaintiff, v. Quadrant Systems, LLC, Third-Party Defendant, Civil No. 12-326 (DWF/SER), (D. Minn.). The Plaintiffs had alleged that the Hennepin County violated provisions of the Fair Credit Reporting Act (FCRA), 15 U.S.C. Section 1681, et seq., and the Fair and Accurate Credit Transactions Act (FACTA), which amended the FCRA, by issuing receipts bearing full, unredacted credit card expiration dates. After filing an Amended Complaint in February 2012, the Plaintiffs served third-party subpoenas to credit card companies and technology vendors. The Defendant filed a motion for judgment on the pleadings on January 11, 2013, seeking dismissal of the Plaintiffs' Amended Complaint. On February 1, 2013, the parties submitted a Stipulation to Amend Plaintiffs' Amended Class Action Complaint. Pursuant to the stipulation, the Plaintiffs were permitted to file the Second Amended Class Action Complaint. In the Second Amended Class Action Complaint, the Plaintiffs again claimed that the Defendant's issuance of credit card receipts containing expiration dates constitutes a willful violation of the FCRA and FACTA. The Plaintiffs also seek to represent a class of similarly situated individuals. The Defendant moved for judgment on the pleadings on three separate grounds: (1) the Plaintiffs have failed to adequately allege willfulness and, therefore, failed to state a claim for relief; (2) the Defendant could not have acted willfully as a matter of law; and (3) the Defendant is entitled to Eleventh Amendment immunity as an arm of the State. The Court held that the Plaintiffs have sufficiently stated a claim for a willful violation. According to Judge Frank, the relevant statutory text of the FCRA reveals that a "person" under the statute includes any "government or governmental subdivision or agency," and therefore that a government can be liable under the statue. "Thus, it appears that Defendant's interpretation of the statute to mean that no government can be subject to damages under its provisions is not reasonable," he said. "The record is not yet adequately developed so as to allow the Court to determine whether this suit is actually a suit against the state, and in particular, whether funds to pay any award in this action will come from the state treasury. As such, the Court declines to hold that Defendant is entitled to immunity on Eleventh Amendment grounds," Judge Frank added. The Court noted, however, that it appears that damages for Plaintiffs in the case, should they ultimately prevail, will be minimal. Thomas J. Lyons, Esq., of Lyons Law Firm, P.A., and Thomas J. Lyons, Jr., Esq. -- tommycjc@aol.com -- of Consumer Justice Center P.A., represent the Plaintiffs. Michael O. Freeman, Hennepin County Attorney, and Rebecca Lee Stark Holschuh, Assistant Hennepin County Attorney, of the Hennepin County Attorney's Office, represent Hennepin County. Gerald C. Kell, Esq. -- gerald.kell@usdoj.gov -- of the U.S. Department of Justice, represents Intervenor United States of America. A copy of the District Court's May 13, 2013 Memorandum Opinion and Order is available at http://is.gd/yLkGnffrom Leagle.com. WELLS FARGO: Cites New Facts in Bid Against Investor Class Action ----------------------------------------------------------------- Margaret Cronin Fisk and Beth Hawkins, writing for Bloomberg News, report that Wells Fargo & Co., citing "new facts," asked a judge to revoke the class-action status he bestowed on a suit by institutional investors who claimed the bank marketed a risky securities-lending program as safe. Wells Fargo on May 17 asked U.S. District Judge Donovan W. Frank in St. Paul, Minnesota, to revisit his decision allowing the plaintiffs to pursue their action together instead of individually, giving them greater leverage to obtain a settlement. The bank is also seeking dismissal of multiple investor claims. Wells Fargo is asking Judge Frank to revisit his decision allowing the plaintiffs to pursue their action together instead of individually, giving them greater leverage to obtain a settlement. Judge Frank certified the case as a group lawsuit last year, finding that common questions predominated, including whether San Francisco-based Wells Fargo "knew or should have known that the investments it selected did not comport with investment mandates." The case was filed in 2010 by the City of Farmington Hills Employees Retirement System, a Michigan pension fund, on behalf of more than 100 other institutional investors. They claim breach of fiduciary duty and fraud. "There are significant new facts that have come to light and significant new arguments that have come to light that could not have been known at the time of certification," Dan Millea, a Wells Fargo attorney, told the judge on May 17. 'Sold Out' The lead plaintiff, Farmington Hills, differs from other investors and there's no classwide method for calculating damages, Mr. Millea said. "Farmington Hills exited the program and sold out completely. Other members are either still in or paid to get out." These differences don't mean that a class shouldn't be certified, Peter Binkow, a lawyer for the plaintiffs, said at the hearing. Damages would be calculated by how much principal was lost, he told the judge. How investors got into or out of the program doesn't matter, he said. "There's really no issue on damages." he said. The suit, set for trial Sept. 16, is one of at least five against Wells Fargo over its securities lending. A case brought by nonprofit organizations led by Blue Cross Blue Shield of Minnesota goes to trial next month in federal court in St. Paul. In another, the Minnesota Life Insurance Co. claims $40 million in damages. Wells Fargo lost a $30 million jury verdict in 2010 in a claim brought by the Minnesota Workers' Compensation Reinsurance Association and three charitable foundations. The verdict was upheld on appeal. The suits have been brought in Minnesota where the Wells Fargo securities lending program was located. 'Investment Guidelines' Investments made by Wells Fargo Securities Lending "were in accordance with investment guidelines and were prudent and suitable at the time of purchase," Laura Fay, a spokeswoman for the bank, said in an e-mailed statement. "We strongly deny the allegations that were made in these lawsuits." Securities lending is a practice whereby investors lend stock or other investments to banks or brokers. In return, the bank places cash collateral on behalf of the investor into short-term investments until the shares are returned. It has been traditionally viewed by pension funds and foundations as a low- risk investment. The pension fund and other class members participated in an investment program in which Wells Fargo would hold its clients' securities in custodial accounts and make temporary loans of these securities to brokers. The brokers would borrow the securities to support their trading activities, such as short sales and option contracts, and would post collateral worth at least 102 percent of the value of the securities, the plaintiffs said in court papers. 'Highly Secure' The Michigan pension plan claims Wells Fargo promoted its securities-lending program "as a highly secure way for its institutional clients to maximize portfolio returns." Instead, the pension fund said, "Wells Fargo invested a substantial portion of the collateral in extremely risky securities." Wells Fargo also invested in "highly illiquid securities," including structured investment vehicles, or SIVs, asset-backed and mortgage-backed securities, the plaintiffs said in the complaint. The SIVs proved particularly risky during the mortgage crisis, they said. "We do not believe that Wells Fargo in any meaningful manner tried to assess liquidity," plaintiffs' attorney Avi Wagner said at the May 17 hearing. Investor Claims The investors claim Wells Fargo concealed investment performance to keep them from exiting the lending program. They allege breach of fiduciary duty, breach of contract and violation of Minnesota's Consumer Fraud Act. The class includes participants in the Wells Fargo securities lending program starting on Jan. 1, 2006, "who suffered losses to the program's purchase and maintenance of high risk, long-term securities," Judge Frank said in his order. Wells Fargo blamed any losses on the financial crisis. "Market conditions severely deteriorated and had a major impact on the global financial markets and worldwide economies" from 2007 to 2009, said Ms. Fay, the bank spokeswoman. "During that time, the market for even the highest-rated debt instruments, such as those invested in by WFSL, deteriorated substantially." The Michigan pension fund and the class "suffered no recoverable damages," lawyers for the bank said in court papers in November. "Any losses sustained by plaintiff and the class were caused by persons, entities or other factors for which Wells Fargo was not and is not responsible." Losses 'Offset' Alleged losses were "offset, in whole or in part, by profits in their accounts with Wells Fargo and profits arising from purchases of other fixed-income instruments that would be considered 'unsuitable' according to the allegations of plaintiff and the class," the bank's attorneys wrote. Wells Fargo also asked the judge on May 17 to dismiss claims for breach of fiduciary duty and the consumer law violation. The plaintiffs haven't proven that "but for" Wells Fargo's actions, investment losses wouldn't have occurred, Lindsey Davis, an attorney for the bank, said at the hearing. "The plaintiffs have not created a 'but for' world comprised of appropriate investments," she said. In approving a class action, the judge wrote that it is superior to multiple individual suits in promoting "the interests of judicial economy and efficiency." "Class members who may not otherwise have the means to litigate their claims will likely benefit greatly from a class action, and a class action will ensure that class members who are otherwise unaware that they possess a claim will have their rights represented," he wrote. 'Illiquidity Risk' The suit particularly targets Wells Fargo's investments in structured investment vehicles. The plaintiffs sought "conservative, safe and liquid investments," their lawyers wrote. "SIVs have a built-in illiquidity risk." "SIVs borrow money by issuing short-term securities, usually commercial paper, at lower interest rates," according to the complaint. "The SIVs then lend money by buying long-term assets at higher interest rates," making a profit off the spread, the lawyers said. "To survive, SIVs need a constant infusion of new short-term refinancing, at favorable rates," they said. This financing fell apart when the mortgage crisis caused a "liquidity crunch" in the short-term commercial paper market, leading to defaults by two of the SIVs in which Wells Fargo had heavily invested, Cheyne Finance SIV and the Stanfield Victoria SIV, according to the complaint. Both went into receivership, the plaintiffs' lawyers said. Frank will first oversee a trial to start June 17 in a case brought against Wells Fargo by Blue Cross & Blue Shield of Minnesota and 10 other nonprofits, including the pension plans of St. John's University, Meijer Inc. and El Paso County. The class action is City of Farmington Hills Employees Retirement System v. Wells Fargo Bank NA, 10-cv-04372, U.S. District Court, District of Minnesota (St. Paul). WELLS FARGO: Settles Force-Placed Insurance Class Action -------------------------------------------------------- Brian Bandell, writing for South Florida Business Journal, reports that Wells Fargo Bank and QBE Insurance have agreed to settle a class action lawsuit filed by several Miami-Dade County law firms on behalf of Florida homeowners given force-placed insurance for $19.25 million. The complaint, filed in 2011, alleged that Florida homeowners were overcharged, then Wells Fargo assigned property insurance from QBE on their homes. The lawsuit alleged that Wells Fargo unfairly took commissions that were included in the premiums for this insurance. Lenders often order forced placed insurance when property owners decline to buy coverage themselves, often when the loan is in default. The class was certified in 2012, and more than 24,000 homeowners were notified. During the class period, from April 2006 to February 2013, the class members were charged $77 million for force-placed insurance, according to the settlement documents. The trial was scheduled to start in July. Instead, the parties reached a settlement for a refund of the amount charged for forced-placed insurance to the members of the class. The borrowers who paid the premium will be refunded 25 percent in cash. Those who were charged the premium but didn't pay will get a credit of 25 percent off their bill. In addition, the defendants agreed to pay up to $5.48 million of the plaintiffs' attorney's fees and costs. The plaintiffs were represented by Aaron Podhurst, John Gravante III, Peter Prieto and Matthew Weinshall, of Miami-based Podhurst Orseck Josefberg; Lance Harke, Howard Bushman and Sarah Engel, of Miami Shores-based Harke Clasby & Bushman; and Adam M. Moskowitz, Thomas Tucker Ronzetti, Rachel Sullivan and Robert J. Neary, of Coral Gables-based Kozyak, Tropin & Throckmorton P.A. After the lawsuit was filed, Wells Fargo said it would no longer purchase force-placed insurance from QBE in Florida. Wells Fargo was represented by David Esau of Calton Fields in West Palm Beach. QBE was represented by Katherine Halliday of BuckleySandler in Washington, D.C. YOUTUBE INC: Class Cert. Bid in Copyright Infringement Suit Denied ------------------------------------------------------------------ District Judge Louis N. Stanton denied a motion for class certification in the lawsuit captioned THE FOOTBALL ASSOCIATION PREMIER LEAGUE LIMITED v. YOUTUBE, INC. Forty-five years ago Judge Lumbard of the United States Court of Appeals for this Circuit called a case a "Frankenstein monster posing as a class action." The description fits the class aspects of this case, Judge Stanton said. The putative class consists of every person and entity in the world who own infringed copyrighted works, who have or will register them with the U.S. Copyright Office as required, whose works fall into either of two categories: they were the subject of prior infringement which was blocked by YouTube after notice, but suffered additional infringement through subsequent uploads (the repeat infringement class), or are musical compositions which defendants tracked, monetized or identified and allowed to be used without proper authorization (the music publisher class). The Plaintiffs assert that there are "at least thousands of class members" in the Repeat Infringement Class, and "hundreds" in the Music Publisher Class. Judge Stanton held that the Plaintiffs offer no explanation of how the worldwide members of this proposed class are to be identified, how they are to prove copyright ownership by themselves or by their authorized agent, or how they will establish that the defendants became aware of the specific video clips which allegedly infringed each of the potentially tens of thousands of musical compositions incorporated into specific videos. Unless an exception applies, the Digital Millennium Copyright Act 17 U.S.C. Section 512(c) requires that YouTube have legal knowledge or awareness of the specific infringement, to be liable for it. "Defendant YouTube does not generate infringing material: it offers a website on which others post video clips, some of which infringe (e.g., by quoting or copying) material in copyrighted works. Thus YouTube is mainly alleged to be secondarily liable for its users' uploading an infringing clip onto the service," Judge Stanton concluded. The case is THE FOOTBALL ASSOCIATION PREMIER LEAGUE LIMITED, BOURNE CO. (together with its Affiliate MURBO MUSIC PUBLISHING, INC.), THE MUSIC FORCE LLC, CAL IV ENTERTAINMENT LLC, NATIONAL MUSIC PUBLISHERS' ASSOCIATION, THE RODGERS & HAMMERSTEIN ORGANIZATION, EDWARD B. MARKS MUSIC COMPANY, FREDDY BIENSTOCK MUSIC COMPANY d/b/a BEINSTOCK PUBLISHING COMPANY, ALLEY MUSIC CORPORATION, X-RAY DOG MUSIC, INC., FEDERATION FRANCAISE DE TENNIS, THE MUSIC FORCE MEDIA GROUP LLC, SIN-DROME RECORDS, LTD., on behalf of themselves and all others similarly situated, Plaintiffs, v. YOUTUBE, INC., YOUTUBE, LLC, and GOOGLE INC., Defendants, No. 07 Civ. 3582(LLS), (S.D. N.Y.). A copy of the District Court's May 15, 2013 Opinion and Order is available at http://is.gd/Hs7Tdgfrom Leagle.com. Asbestos Litigation ASBESTOS UPDATE: Pittsburgh Corning Plan Up for 2nd Approval ------------------------------------------------------------ Steven Church, writing for Bloomberg News, reports that Pittsburgh Corning Corp.'s bankruptcy judge overruled final objections by insurance companies trying to halt the reorganization of the building-supply company. According to the report, U.S. Bankruptcy Judge Judith Fitzgerald in Pittsburgh refused on May 24 to reconsider her initial approval of the reorganization plan, which relies partly on insurance proceeds to pay victims of asbestos exposure. Insurers led by Mt. McKinley Insurance Co., had asked Fitzgerald to reconsider her decision, claiming she erred May 16 when she tentatively approved a plan to create a $3.5 billion asbestos trust. The trust and the plan now go before a U.S. district court judge for a second approval, which is required for all asbestos-related bankruptcy cases that create a victim's trust fund. Under the bankruptcy plan, Pittsburgh Corning's parents, Corning Inc. and PPG Industries Inc., may shift their liability for asbestos claims to the trust, which the companies and the insurers would fund. Corning and PPG would give the trust the right to collect on their insurance policies under the plan, which Mt. McKinley claimed would unfairly alter the policies. During a court hearing May 23, Judge Fitzgerald gave the insurers a final chance to talk her out of her decision. At the end of the hearing, she said she was unlikely to change her mind and asked the parties to submit any minor wording changes to her proposed order before she made a final ruling. About Pittsburgh Corning Pittsburgh Corning Corporation filed for Chapter 11 bankruptcy protection (Bankr. W.D. Pa. Case No. 00-22876) on April 16, 2000, to address numerous claims alleging personal injury from exposure to asbestos. At the time of the bankruptcy filing, there were about 11,800 claims pending against the Company in state court lawsuits alleging various theories of liability based on exposure to Pittsburgh Corning's asbestos products and typically requesting monetary damages in excess of $1 million per claim. The Hon. Judith K. Fitzgerald presides over the case. Reed Smith LLP serves as counsel and Deloitte & Touche LLP as accountants to the Debtor. The United States Trustee appointed a Committee of Unsecured Trade Creditors on April 28, 2000. The Bankruptcy Court authorized the retention of Leech, Tishman, Fuscaldo & Lampl, LLC, as counsel to the Committee of Unsecured Trade Creditors, and Pascarella & Wiker, LLP, as financial advisor. The U.S. Trustee also appointed a Committee of Asbestos Creditors on April 28, 2000. The Bankruptcy Court authorized the retention of these professionals by the Committee of Asbestos Creditors: (i) Caplin & Drysdale, Chartered as Committee Counsel; (ii) Campbell & Levine as local counsel; (iii) Anderson Kill & Olick, P.C. as special insurance counsel; (iv) Legal Analysis Systems, Inc., as Asbestos-Related Bodily Injury Consultant; (v) defunct firm, L. Tersigni Consulting, P.C. as financial advisor, and (vi) Professor Elizabeth Warren, as a consultant to Caplin & Drysdale, Chartered. On Feb. 16, 2001, the Court approved the appointment of Lawrence Fitzpatrick as the Future Claimants' Representative. The Bankruptcy Court authorized the retention of Meyer, Unkovic & Scott LLP as his counsel, Young Conaway Stargatt & Taylor, LLP, as his special counsel, and Analysis, Research and Planning Corporation as his claims consultant. In 2003, a plan of reorganization was agreed to by various parties-in-interest, but, on Dec. 21, 2006, the Bankruptcy Court issued an order denying the confirmation of that plan, citing that the plan was too broad in addressing independent asbestos claims that were not associated with Pittsburgh Corning. On Jan. 29, 2009, an amended plan of reorganization (the Amended PCC Plan) -- which addressed the issues raised by the Court when it denied confirmation of the 2003 Plan -- was filed with the Bankruptcy Court. As reported by the TCR on April 25, 2012, Pittsburgh Corning Corp., a joint venture between Corning Inc. and PPG Industries Inc., filed another amendment to its reorganization plan designed to wrap up a Chapter 11 begun 12 years ago. The Company's balance sheet at Sept. 30, 2012, showed $29.41 billion in total assets, $7.52 billion in total liabilities and $21.88 billion in total equity. ASBESTOS UPDATE: Park-Ohio Industries Had 260 Cases at March 31 --------------------------------------------------------------- Park-Ohio Industries, Inc., was a co-defendant in approximately 260 cases alleging personal injury as a result of exposure to asbestos, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2013. The Company states: "We were a co-defendant in approximately 260 cases asserting claims on behalf of approximately 600 plaintiffs alleging personal injury as a result of exposure to asbestos. These asbestos cases generally relate to production and sale of asbestos-containing products and allege various theories of liability, including negligence, gross negligence and strict liability, and seek compensatory and, in some cases, punitive damages. In every asbestos case in which we are named as a party, the complaints are filed against multiple named defendants. In substantially all of the asbestos cases, the plaintiffs either claim damages in excess of a specified amount, typically a minimum amount sufficient to establish jurisdiction of the court in which the case was filed (jurisdictional minimums generally range from $25,000 to $75,000), or do not specify the monetary damages sought. To the extent that any specific amount of damages is sought, the amount applies to claims against all named defendants. There are only six asbestos cases, involving 23 plaintiffs, that plead specified damages. In each of the six cases, the plaintiff is seeking compensatory and punitive damages based on a variety of potentially alternative causes of action. In three cases, the plaintiff has alleged compensatory damages in the amount of $3.0 million for four separate causes of action and $1.0 million for another cause of action and punitive damages in the amount of $10.0 million. In the fourth case, the plaintiff has alleged compensatory damages in the amount of $20.0 million for three separate causes of action and $5.0 million for another cause of action and punitive damages in the amount of $20.0 million. In the remaining two cases, the plaintiffs have each alleged against each named defendant, compensatory and punitive damages, each in the amount of $50.0 million, for four separate causes of action. Historically, we have been dismissed from asbestos cases on the basis that the plaintiff incorrectly sued one of our subsidiaries or because the plaintiff failed to identify any asbestos- containing product manufactured or sold by us or our subsidiaries. We intend to vigorously defend these asbestos cases, and believe we will continue to be successful in being dismissed from such cases. However, it is not possible to predict the ultimate outcome of asbestos-related lawsuits, claims and proceedings due to the unpredictable nature of personal injury litigation. Despite this uncertainty, and although our results of operations and cash flows for a particular period could be adversely affected by asbestos- related lawsuits, claims and proceedings, management believes that the ultimate resolution of these matters will not have a material adverse effect on our financial condition, liquidity or results of operations. Among the factors management considered in reaching this conclusion were: (a) our historical success in being dismissed from these types of lawsuits; (b) many cases have been improperly filed against one of our subsidiaries; (c) in many cases the plaintiffs have been unable to establish any causal relationship to us or our products or premises; (d) in many cases, the plaintiffs have been unable to demonstrate that they have suffered any identifiable injury or compensable loss at all or that any injuries that they have incurred did in fact result from alleged exposure to asbestos; and (e) the complaints assert claims against multiple defendants and, in most cases, the damages alleged are not attributed to individual defendants. Additionally, we do not believe that the amounts claimed in any of the asbestos cases are meaningful indicators of our potential exposure because the amounts claimed typically bear no relation to the extent of the plaintiff's injury, if any. Our cost of defending these lawsuits has not been material to date and, based upon available information, our management does not expect its future costs for asbestos-related lawsuits to have a material adverse effect on our results of operations, liquidity or financial position. ATM is the defendant in a lawsuit pending in the United States District Court for the Eastern District of Arkansas. The plaintiff is IPSCO Tubulars Inc. d/b/a TMK IPSCO. The complaint alleges claims for breach of contract, gross negligence and constructive fraud. TMK IPSCO is seeking approximately $6.0 million in direct and $4.0 million in consequential damages as well as an unspecified amount of punitive damages. ATM denies the allegations against it, believes it has a number of meritorious defenses and is vigorously defending the lawsuit. A motion for partial summary judgment filed by ATM that, among other things, denied the plaintiff's fraud claims was granted by the district court. A bench trial is set to begin in May of 2013." Park-Ohio Industries, Inc. engages in industrial supply chain logistics and diversified manufacturing businesses. ASBESTOS UPDATE: IntriCon Continues to Defend Exposure Suits ------------------------------------------------------------ IntriCon Corporation continues to defend itself against lawsuits alleging that plaintiffs have or may have contracted asbestos- related diseases as a result of exposure to asbestos products or equipment, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2013. The Company is a defendant along with a number of other parties in lawsuits alleging that plaintiffs have or may have contracted asbestos-related diseases as a result of exposure to asbestos products or equipment containing asbestos sold by one or more named defendants. These lawsuits relate to the discontinued heat technologies segment which was sold in March 2005. Due to the non- informative nature of the complaints, the Company does not know whether any of the complaints state valid claims against the Company. Certain insurance carriers have informed the Company that the primary policies for the period August 1, 1970-1978 have been exhausted and that the carriers will no longer provide defense and insurance coverage under those policies. However, the Company has other primary and excess insurance policies that the Company believes afford coverage for later years. Some of these other primary insurers have accepted defense and insurance coverage for these suits, and some of them have either ignored the Company's tender of defense of these cases, or have denied coverage, or have accepted the tenders but asserted a reservation of rights and/or advised the Company that they need to investigate further. Because settlement payments are applied to all years a litigant was deemed to have been exposed to asbestos, the Company believes that it will have funds available for defense and insurance coverage under the non-exhausted primary and excess insurance policies. However, unlike the older policies, the more recent policies have deductible amounts for defense and settlements costs that the Company will be required to pay; accordingly, the Company expects that its litigation costs will increase in the future. Further, many of the policies covering later years (approximately 1984 and thereafter) have exclusions for any asbestos products or operations, and thus do not provide insurance coverage for asbestos-related lawsuits. The Company does not believe that the asserted exhaustion of some of the primary insurance coverage for the 1970-1978 period will have a material adverse effect on its financial condition, liquidity, or results of operations. Management believes that the number of insurance carriers involved in the defense of the suits, and the significant number of policy years and policy limits under which these insurance carriers are insuring the Company, make the ultimate disposition of these lawsuits not material to the Company's consolidated financial position or results of operations. IntriCon Corporation (IntriCon) is an international company engaged in designing, developing, engineering and manufacturing body-worn devices. IntriCon serves the body-worn device market by designing, developing, engineering and manufacturing micro- miniature products, microelectronics, micro-mechanical assemblies and complete assemblies, primarily for bio-telemetry devices, hearing instruments and professional audio communication devices. The Company operates in one operating segment, the body-worn device segment. The Company's core technologies is focused on three main markets: medical, hearing health and professional audio communications. In October 2012, it sold its 50% ownership interest in Global Coils. ASBESTOS UPDATE: Le@P Technology Accrued $32,000 in Legal Fees -------------------------------------------------------------- Le@P Technology, Inc., has accrued $32,000 in legal fees to settle all outstanding litigation in relation to asbestos-related disputes, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2013. The Company is party to asbestos-related disputes arising out of asbestos-related materials aboard certain maritime vessels allegedly owned and operated by subsidiaries of the Company in the 1970s. The Company has accrued $32,000 in legal fees to settle all outstanding litigation in relation to asbestos-related disputes. As of March 31, 2013, the Company's management believed that none of these actions, standing alone, or in the aggregate, was material to the Company's operations or financial condition. Le@P Technology, Inc. (Le@P) owns the property in Broward County, Florida (the Real Property). As of December 31, 2011, the Company had no revenue-producing activities. Parkson Property LLC (Parkson), a wholly owned subsidiary of the Company, owns the Real Property. The Real Property is zoned light industrial and consists of approximately one and one-third acres. The Company leased the Real Property to an unrelated third party tenant. The Company's previous tenant lease on the Real Property has expired. ASBESTOS UPDATE: Kaiser Ventures Has Insurance to Cover PI Claims ----------------------------------------------------------------- Kaiser Ventures, LLC, has insurance policy that provides additional coverage for potential liabilities arising from, among other things, potential 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 March 31, 2013. The Company purchased an insurance policy effective June 30, 2001, that is designed to provide broad prospective commercial general liability, pollution legal liability, and contractual indemnity coverage for the Company's ongoing and historical operations on a claims mode basis through June 30, 2013. The policy has a twelve (12) year term and limits of $50 million in the aggregate for defense and indemnity, with no deductible or self-insured retention. The policy is designed to provide coverage for future claims in excess of the Company's existing and historic insurance policies; however, to the extent that these other insurance policies are not responsive to a claim, the policy will provide first dollar coverage for a claim resulting from property damage, personal injury, bodily injury, cleanup costs or violations of environmental laws. The policy also provides for a broad defense of claims that may be brought against the Company. The policy is specifically intended to provide additional coverage for potential liabilities arising from pollution conditions or known and/or potential asbestos-related claims. The policy also provides contractual indemnity coverage for scheduled indemnity obligations of the Company arising from, e.g., prior corporate transactions and real estate sales. The Company expects this policy will cover substantially any and all environmental claims (up to the $50 million policy limit) relating to the historical operations of the Company that are filed prior to June 30, 2013. The aggregate cost for this policy was approximately $5.8 million, of which, based upon discussions among the respective members of the Boards of Directors, KSC Recovery paid $2 million and the Company paid the balance of approximately $3.8 million. The portion of the policy paid by KSC Recovery was expected to cover known and/or potential asbestos claims; while the portion of the policy paid by the Company was expected to cover future potential claims arising from the Company's historical operations. The Company's original $3.8 million premium for the prospective insurance policy was capitalized as a long-term asset and is being amortized on a straight-line basis over the 12 year term of the policy. To the extent a pre-existing liability has not been recorded, claims made for environmental matters are recorded as litigation accruals in the Company's consolidated financial statements pursuant to Section 450-10 of the ASC when it becomes probable that a loss has been incurred and the amount of such loss can be reasonably estimated. Claims accepted by the insurance company pursuant to coverage under the policy are recorded as insurance receivables when coverage is accepted and the amount to be paid by the insurance company can be reasonably estimated. Generally, unless previously accrued, the liability and the receivable relating to claims covered by this policy should occur in the same accounting period, thereby having no adverse or beneficial impact on the Company's operating results for that accounting period. In addition to the foregoing policy, an additional insurance policy with a term of ten years covering certain possible contingent environmental and other related events that could arise and impact the WVMRF, LLC and others was purchased by Kaiser Recycling during the second quarter of 2012. The policy premium of $113,621 was paid from the escrow account originally totaling $363,000 that was established as a result of the sale of Kaiser Recycling, LLC's ownership interest in WVMRF, LLC. The amount of this escrow was charged against the Company's existing environmental liability reserve. Recycled from the former Kaiser Steel, Kaiser Ventures, LLC, Kaiser Ventures oversees recycling and solid waste investments. The company's holdings include an 83.1% stake in Mine Reclamation Corporation (MRC) and a 50% stake in West Valley Materials Recovery Facility and Transfer Station, which separates waste materials for recycling or storage. Through MRC, the company has turned Kaiser Steel's iron-ore mining pits into a rail-accessible solid waste landfill at Eagle Mountain in the California desert; it has agreed to sell the landfill to County District No. 2 of Los Angeles County. However, lawsuits from local residents have blocked the deal. Kaiser Ventures is owned mainly by former creditors of Kaiser Steel. ASBESTOS UPDATE: Momentive Specialty Continues to Defend PI Suits ----------------------------------------------------------------- Momentive Specialty Chemicals continues to defend itself against various legal proceedings including actions that allege personal injury claims arising from asbestos-related products, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2013. The Company is involved in various other product liability, commercial and employment litigation, personal injury, property damage and other legal proceedings, including actions that allege harm caused by products the Company has allegedly made or used, containing silica, vinyl chloride monomer and asbestos. The Company believes it has adequate reserves and that it is not reasonably possible that a loss exceeding amounts already reserved would be material. Furthermore, the Company has insurance to cover claims of these types. Momentive Specialty Chemicals (formerly Hexion Specialty Chemicals) is the world's largest thermosetting resins (or thermosets) maker, ahead of competitor Georgia-Pacific. Thermosets add a desired quality (heat resistance, gloss, adhesion, etc.) to a number of different paints, coatings, and adhesives. They include an array of resins: phenolic, epoxy, polyester, acrylic, and urethane. The company also is a leading producer of adhesive and structural resins and coatings. It serves several markets, including paints, consumer products, and automotive coatings. It was created after Hexion merged with Momentive Performance Materials in 2010. Both companies are owned by Momentive Performance Materials Holdings. ASBESTOS UPDATE: Independence Realty Properties Contain Asbestos ---------------------------------------------------------------- Independence Realty Trust, Inc., says limited quantities of asbestos-containing materials are present in various building materials such as floor coverings, ceiling texture material, acoustical tiles and decorative treatment, according to the Company's Form S-11 filing with the U.S. Securities and Exchange Commission on May 13, 2013. The Company states, "All real property and the operations conducted on real property are subject to federal, state and local laws and regulations relating to environmental protection and human health and safety. Examples of federal laws include: the National Environmental Policy Act, the Comprehensive Environmental Response, Compensation, and Liability Act, the Solid Waste Disposal Act as amended by the Resource Conservation and Recovery Act, the Federal Water Pollution Control Act, the Federal Clean Air Act, the Toxic Substances Control Act, the Emergency Planning and Community Right to Know Act and the Hazard Communication Act. These laws and regulations generally govern wastewater discharges, air emissions, the operation and removal of underground and above- ground storage tanks, the use, storage, treatment, transportation and disposal of solid and hazardous materials, and the remediation of contamination associated with disposals. Some of these laws and regulations may impose joint and several liability on residents, owners or operators for the costs of investigation or remediation of contaminated properties, regardless of fault or the legality of the original disposal. In addition, the presence of these substances, or the failure to properly remediate these substances, may limit or eliminate affect our ability to sell or rent the property or to use the property as collateral for future borrowing. There may also be potential liability associated with lead-based paint arising from lawsuits alleging personal injury and related claims. The existence of lead paint is especially a concern in residential units. A structure built prior to 1978 may contain lead-based paint and may present a potential for exposure to lead; however, structures built after 1978 are not likely to contain lead-based paint. Properties' values may also be affected by their proximity to electric transmission lines. Electric transmission lines are one of many sources of electro-magnetic fields, or EMFs, to which people may be exposed. Research completed regarding potential health concerns associated with exposure to EMFs has produced inconclusive results. Notwithstanding the lack of conclusive scientific evidence, some states now regulate the strength of electric and magnetic fields emanating from electric transmission lines, and other states have required transmission facilities to measure for levels of EMFs. On occasion, lawsuits have been filed (primarily against electric utilities) that allege personal injuries from exposure to transmission lines and EMFs, as well as from fear of adverse health effects due to such exposure. This fear of adverse health effects from transmission lines has been considered both when property values have been determined to obtain financing and in condemnation proceedings. We may not, in certain circumstances, search for electric transmission lines near our properties, but are aware of the potential exposure to damage claims by persons exposed to EMFs. Recently, indoor air quality issues, including mold, have been highlighted in the media and the industry is seeing mold claims from lessees rising. Due to recent increases in mold claims, and since the law relating to mold is unsettled and subject to change, we could incur losses from claims relating to the presence of, or exposure to, mold or other microbial organisms, particularly if we are unable to maintain adequate insurance to cover such losses. We may also incur unexpected expenses relating to the abatement of mold on properties that we may acquire. Limited quantities of asbestos-containing materials are present in various building materials such as floor coverings, ceiling texture material, acoustical tiles and decorative treatment. Environmental laws govern the presence, maintenance and removal of asbestos. These laws could be used to impose liability for release of, and exposure to, hazardous substances, including asbestos- containing materials, into the air. Such laws require that owners or operators of buildings containing asbestos (i) properly manage and maintain the asbestos, (ii) notify and train those who may come into contact with asbestos and (iii) undertake special precautions, including removal or other abatement, if asbestos would be disturbed during renovation or demolition of a building. These laws may allow third parties to seek recovery from owners or operators of real properties for personal injury associated with exposure to asbestos fibers. As the owner of our properties, we may be liable for any such costs. Compliance with new or more stringent laws or regulations or stricter interpretation of existing laws may require material expenditures by us. We cannot assure you that future laws, ordinances or regulations will not impose any material environmental liability, or that the current environmental condition of our properties will not be affected by the operations of residents, existing conditions of the land, operations in the vicinity of the properties, or the activities of unrelated third parties. In addition, there are various local, state and federal fire, health, life-safety and similar regulations that we may be required to comply with. Failure to comply with applicable laws and regulations could result in fines and/or damages, suspension of personnel of our advisor and/or other sanctions." Independence Realty Trust, Inc., owns well-located apartment properties in geographic submarkets that support strong occupancy and have the potential for growth in rental rates. ASBESTOS UPDATE: CCOM Group Continues to Defend PI Lawsuits ----------------------------------------------------------- CCOM Group, Inc., continues to defend itself against lawsuit alleging personal injury claims arising from exposure to asbestos- containing products manufactured by one of its subsidiaries, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2013. Universal Supply Group, Inc., a wholly owned subsidiary of the Company, is a New York corporation ("Universal"). On June 25, 1999, Universal acquired substantially all of the assets of Universal Supply Group, Inc., a New Jersey corporation, including its name, pursuant to the terms of a purchase agreement. Subsequent to the acquisition, Universal Supply Group, Inc. (the selling corporation) formerly known as Universal Engineering Co., Inc., changed its name to Hilco, Inc. Hilco, Inc. acquired the assets of Amber Supply Co., Inc., formerly known as Amber Oil Burner Supply Co., Inc., in 1998, prior to Hilco's sale of assets to Universal. Hilco, Inc. is hereinafter referred to as the "Universal Predecessor." The majority shareholders of Hilco, Inc. were John A. Hildebrandt and Paul H. Hildebrandt. The Company understands that the Universal Predecessor and many other companies have been sued in the Superior Court of New Jersey (Middlesex County) by plaintiffs filing lawsuits alleging injury due to asbestos. As of March 31, 2013, there existed 7 plaintiffs in these lawsuits relating to alleged sales of asbestos products, or products containing asbestos, by the Universal Predecessor. The Company never sold any asbestos related products. Of the existing plaintiffs as of March 31, 2013, 1 filed an action in 2013, 2 filed actions in 2012, 3 filed actions in 2011 and 1 filed an action in 2010. There are 212 other plaintiffs that have had their actions dismissed and 17 other plaintiffs that have settled as of March 31, 2013 for a total of $3,364,500 paid by defendants other than Universal. There has been no judgment against the Universal Predecessor. The Company's Universal subsidiary was named by 38 plaintiffs; of these, 1 filed an action in 2012, 1 filed an action in 2010, 11 filed actions in 2007, 6 filed actions in 2006, 11 filed actions in 2005, 5 filed actions in 2001, 1 filed an action in 2000, and 2 filed actions in 1999. Thirty-five plaintiffs naming Universal have had their actions dismissed and, of the total $3,364,500 of settled actions, 3 plaintiffs naming Universal have settled for $27,500. No money was paid by Universal in connection with any settlement. Following these dismissed and settled actions no plaintiffs named Universal as of March 31, 2013. The Company has been indemnified against asbestos-based claims, and insurance companies are defending the interests of the Universal Predecessor and the Company in these cases. Based on advice of counsel, the Company believes that none of the litigation that was brought against the Company's Universal subsidiary through March 31, 2013 is material, and that the only material litigation that was brought against the Universal Predecessor through that date was Rhodes v. A.O. Smith Corporation, filed on April 26, 2004 in the Superior Court of New Jersey, Law Division, Middlesex County, Docket Number MID-L-2979- 04AS. The Company was advised that the Rhodes case was settled for $3,250,000 ("Settlement") under an agreement reached in connection with a $10,000,000 jury verdict that was rendered on August 5, 2005. The Company was not a defendant in the Rhodes case. The Company believes that Rhodes differed from the other lawsuits in that plaintiff established that he contracted mesothelioma as a result of his occupational exposure to asbestos dust and fibers and that a predecessor of the Company was a major supplier of the asbestos containing products that allegedly caused his disease. John A. Hildebrandt, Paul H. Hildebrandt and the Universal Predecessor have jointly and severally agreed to indemnify the Company's Universal subsidiary from and against any and all damages, liabilities and claims due to exposure to asbestos at any time prior to the June 25, 1999 closing of the purchase agreement referred to earlier. These agreements are set forth in the purchase agreement. Paul H. Hildebrandt, one of the indemnitors, was a Director of the Company from September 29, 2004 to January 28, 2005. The indemnitors may use their own counsel to defend these claims. The indemnitors are not liable for any settlement effected without their consent. The indemnitors may settle and pay money claims without the consent of the Company. There is no indemnification unless claims aggregate $50,000; once this trigger point is reached, indemnification is required for all claims, including the first $50,000, but excluding claims of less than $10,000. The indemnification requirement survives at least until 30 days after the running of any relevant statutes of limitation. The obligation of the indemnitors is joint and several, so that the Company can have recourse against any one or more of these indemnitors, whether or not any other indemnitor has previously defaulted on its obligation to us. There are no other limitations to the Company's rights to indemnification. The Company cannot be certain that the indemnitors have the financial wherewithal to meet their obligations to indemnify the Company. The assets that the Universal Predecessor sold to the Company included its insurance policies and other agreements and contracts. The policies provide coverage for liability accruing during the periods for which premiums were paid. The Universal Predecessor was formed in 1940. Copies of policies are available for each year beginning in 1970 and ending with the closing under the purchase agreement in 1999. Copies of policies for the period from 1940 to 1969 are not available. Insurance companies acknowledge coverage for potential asbestos claims under certain of these policies. Insurance companies under additional policies have reserved their right to deny coverage but have continued to defend and indemnify the Universal Predecessor and the Company under the contested policies. There are periods during the years from 1940 to 1999 in which the Universal Predecessor did not have coverage for potential asbestos claims. Subject to litigation, insurance companies may maintain that the existence of these periods' results in coverage for only a portion of a particular injury that varies with the period during which there was asbestos coverage relating to the injury, and that the balance of any settlement or judgment is to be paid by the insured. As of March 31, 2013, no insurance company has claimed any contribution for a gap in coverage except for a claim for $160 made by one insurance company to the Universal Predecessor in 1995. The Universal Predecessor asserted that it had no obligation to pay this amount and did not make any payment. Insurance companies have, as of March 31, 2013, defended the Company and the Universal Predecessor, and have paid all settlement amounts and defense costs. Except for the $160, the insurance companies have not requested any payments from the Company or from the Universal Predecessor. The Company's Universal subsidiary has not engaged in the sale of asbestos products since its formation in 1997. Its product liability policies for all years since 1998 exclude asbestos claims. Regardless of indemnification and insurance coverage, management does not in any event consider the Company to be liable for the asbestos-based lawsuits that name the Company or for any other claim that arises as a result of actions or omissions by the Universal Predecessor. The Company expressly disclaimed the assumption of any liabilities when the Company purchased the assets of the Universal Predecessor. It is the opinion of management that the existing asbestos litigation will not have a material adverse effect on the Company. Nevertheless, the Company could be materially and adversely affected if it is held liable for substantial asbestos claims or if it incurs substantial legal or settlement costs. This material and adverse effect would occur if indemnitors fail to honor their indemnification agreements and insurance is not available either because policy limits are exceeded, or because insurance companies successfully deny coverage or claim limitations on their liabilities by reason of gaps in coverage or otherwise. Since management regards as remote the potential payment of any asbestos-based claim, no amounts have been accrued for any period relating to asbestos claims, and no amounts have been recorded for asbestos claims for any period in the condensed consolidated financial statements. CCOM Group, Inc., formerly Colonial Commercial Corp., operations are conducted through its wholly owned subsidiaries, Universal Supply Group, Inc. (Universal), The RAL Supply Group, Inc. (RAL), and S&A Supply, Inc (S&A). The Company distributes heating, ventilating and air conditioning equipment (HVAC), parts and accessories, climate controls systems, appliances, and plumbing and electrical fixtures and supplies, primarily in New Jersey, New York, Massachusetts and portions of eastern Pennsylvania, Connecticut and Vermont. The Company supplies the Amana air conditioning and heating equipment line in New Jersey, of New York State, and Western Massachusetts. It also supplies the Goodman line of heating and air conditioning equipment, Fraser-Johnston commercial air conditioning equipment, and Johnson Controls' Source 1 HVAC Service Parts. The Company distributes these products through seven sales locations in New Jersey, nine in New York State, and two in Massachusetts. ASBESTOS UPDATE: International Textile Facilities Contain Fibro --------------------------------------------------------------- Certain of International Textile Group, Inc.'s facilities contain asbestos, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2013. Asbestos materials are present at certain of the Company's facilities, and applicable regulations would require the Company to handle and dispose of these items in a special manner if these facilities were to undergo certain major renovations or if they were demolished. FASB ASC 410, "Asset Retirement and Environmental Obligations," provides guidance on the recognition and/or disclosure of liabilities related to legal obligations to perform asset retirement activity. In accordance with FASB ASC 410, the Company has not recognized a liability associated with these obligations, because the fair value of such liabilities cannot be reasonably estimated due to the absence of any plans to renovate, demolish or otherwise change the use of these facilities. The Company expects to maintain these facilities by repair and maintenance activities that do not involve the removal of any of these items and has not identified any need for major renovations caused by technology changes, operational changes or other factors. In accordance with FASB ASC 410, the Company will recognize a liability in the period in which sufficient information becomes available to reasonably estimate its fair value. As of March 31, 2013, the Company did not have any liabilities recorded for these obligations. As of March 31, 2013, the Company had raw material and service contract commitments totaling $36.4 million and capital expenditure commitments of $0.5 million not reflected as liabilities on the accompanying consolidated balance sheet. These commitments were not reflected as liabilities on the accompanying consolidated balance sheet because the Company had not received or taken title to the related assets. International Textile Group, Inc. (ITG) is a diversified textile manufacturer. The Company has operations principally in the United States, China, and Mexico. The Company's segments include bottom- weight woven fabrics, commission finishing, narrow fabrics and all other. The Company is a diversified producer of denim fabrics and the better denim fabrics for products distributed through department stores and specialty retailers. The Company is a wool manufacturers and commission printers and finishers in North America, and is a developer, marketer and manufacturer of other fabrics and textile products. In September 2011, the Company acquired the remaining 49% interest in Cone Denim (Jiaxing) Limited. On March 31, 2011, the Company sold certain assets related to its jacquard fabrics business. The Company's manufacturing complex in Vietnam was idled in January 2012. ASBESTOS UPDATE: Rexnord Has $254.2MM Insurance for PI Suits ------------------------------------------------------------ Rexnord Corporation estimates that its available insurance to cover its potential asbestos liability is approximately $254.2 million, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended March 31, 2013. 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 numerous 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. In connection with the Falk Corporation ("Falk") acquisition, Hamilton Sundstrand has provided the Company 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 250 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. Certain Water Management subsidiaries are also subject to asbestos litigation. As of March 31, 2013, 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 March 31, 2013, the Company estimates the potential liability for the asbestos-related claims as well as the claims expected to be filed in the next ten years to be approximately $35.0 million of which Zurn expects to pay approximately $27.0 million in the next ten years on such claims, with the balance of the estimated liability being paid in subsequent years. The $35.0 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 this potential asbestos liability as of March 31, 2013, is approximately $254.2 million, and believes that all current claims are covered by 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 $178.2 million of aggregate liabilities. As of March 31, 2013, the Company had a recorded receivable from its insurance carriers of $35.0 million, which corresponds to the amount of this potential asbestos liability that is covered by available insurance and is currently determined to be probable of recovery. However, there is no assurance that $254.2 million of insurance coverage will ultimately be available or that this asbestos liability will not ultimately exceed $254.2 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 (Rexnord), formerly Rexnord Holdings, Inc., 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. Its Water Management product portfolio includes drainage products, flush valves and faucet products, backflow prevention pressure release valves, PEX piping and engineered valves and gates for the water and wastewater treatment markets. On October 10, 2011, Rexnord acquired VAG Holding GmbH. On April 2, 2011, it acquired Autogard Holdings Limited. ASBESTOS UPDATE: Trial Court's Ruling in "Rendon" Suit Reversed --------------------------------------------------------------- Francis Rendon filed a petition for damages against more than 30 defendants alleging liability as a result of contracting mesothelioma from exposure to asbestos. Mr. Rendon alleged that his father brought asbestos fibers home on his work clothes from working at Pendleton Shipyard, Inc., from 1943-1945. Therefore, Mr. Rendon asserted that Pendleton was partially liable for his development of mesothelioma due to take-home exposure from his father. Continental Insurance Company, the successor by merger to Fidelity and Casualty Company of New York, which was the insurer of Pendleton, filed a motion for summary judgment alleging that Mr. Rendon could not carry his burden of proof that exposure allegedly from his father working at Pendleton was a substantial contributing factor to the development of mesothelioma. The trial court granted Continental's motion for summary judgment and dismissed Mr. Rendon's claims with prejudice and ordered each party to pay its own costs. Mr. Rendon filed a notice of intent to file an application for supervisory review, which was dismissed. Mr. Rendon's appeal followed. Mr. Rendon subsequently filed a motion to file a supplemental pleading into the record to include Continental's amended memo in opposition to Mr. Rendon's motion to remand in federal court, which was granted. Mr. Rendon asserts that the trial court erred in granting Continental's motion for summary judgment because sufficient proof existed to create genuine issues of material fact as to Mr. Rendon's alleged take-home exposure. In a May 8, 2013 decision, the Court of Appeals of Louisiana, Fourth Circuit, reversed and remanded for further proceedings after finding that the trial court erred in granting the motion for summary judgment because the record contains evidence that the Plaintiff's father worked where asbestos was used and that the Plaintiff was around his father's work clothes. Therefore, the Court of Appeals found that genuine issues of material fact exist. The case is RENDON JOSEPH FRANCIS, v. UNION CARBIDE CORPORATION, ET AL., No. 2012-CA-1397 (La. App.). A full-text copy of the Decision is available at http://is.gd/4PBlPYfrom Leagle.com. The Plaintiff is represented by: Mickey P. Landry, Esq. Frank J. Swarr, Esq. David R. Cannella, Esq. Philip C. Hoffman, Esq. LANDRY SWARR & CANNELLA, LLC 1010 Common Street, Suite 2050 New Orleans, LA 70112 Email: mlandry@landryswarr.com fswarr@landryswarr.com dcannella@landryswarr.com phoffman@landryswarr.com - and - Nathaniel D. Mudd, Esq. MAUNE RAICHLE HARTLEY FRENCH & MUDD 211 N. Broadway, Suite 2940 St. Louis, Missouri 63102 Email: nmudd@mrhfmlaw.com Continental is represented by: Gary M. Zwain, Esq. Paul J. Verlander, Esq. DUPLASS ZWAIN BOURGEOIS PFISTER & WEINSTOCK, APLC 3838 North Causeway Boulevard, Three Lakeway Suite 2900 Metairie, LA 70002 Email: gzwain@duplass.com pverlander@duplass.com ASBESTOS UPDATE: Summary Judgment Bid Granted Due to "Boomer" ------------------------------------------------------------- John M. Tyler died on July 28, 2010, from malignant pleural mesothelioma -- a form of lung cancer, which was allegedly caused by exposure to chrysotile asbestos fibers contained in automobile brakes manufactured by Bendix Corporation. The parties dispute the precise extent to which the decedent was exposed to asbestos fibers from Bendix brakes. It was found that there are at least three potential causes of the decedent's cancer: his exposure to asbestos when he served in the Navy, his exposure to asbestos when he worked as a trade helper at Fort Belvoir in Fairfax, Virginia, and his exposure to Bendix brakes during his "shade tree mechanic" work. The decedent and his wife originally filed a lawsuit against 36 separate defendants. The case was transferred to the Eastern District of Pennsylvania by the Judicial Panel on Multidistrict Litigation for coordinated pretrial proceedings. After the conclusion of all pretrial proceedings, the case was remanded to the U.S. District Court for the District of Columbia for trial. By that time, the only remaining viable defendants for trial were John Crane, Inc. and Honeywell International, Inc. While the case was pending in the MDL Court, Honeywell moved for summary judgment on the Plaintiff's claims. In denying that motion, the MDL Court cited the decedent's deposition testimony as well as the testimony of the Plaintiff's experts "that [the decedent]'s exposure to Bendix brakes [was] a substantial cause of his mesothelioma." Specifically, the MDL Court cited the testimony of Dr. Steven Markowitz, who opined that the decedent's exposure to Bendix brakes "'was significant and contributed to his over-all exposure, [and] that his mesothelioma was caused by his cumulative exposure to asbestos.'" In the end, the MDL Court denied summary judgment to the defendant because "Plaintiff has raised a genuine issue of fact as to whether Honeywell's products, specifically, were a substantial contributing factor in causing Decedent's injuries." On January 10, 2013, however, after the case was remanded to the District Court, the Virginia Supreme Court decided Ford Motor Co. v. Boomer, 736 S.E.2d 724 (Va. 2013). That case was an appeal "of a jury verdict against Honeywell International Incorporated and Ford Motor Company for the wrongful death of James D. Lokey, caused by mesothelioma resulting from exposure to asbestos in dust from Bendix brakes installed in Ford and other vehicles." The similarity between Boomer and the instant case is therefore self- evident. Less than three weeks after Boomer was decided, the Defendant filed a motion to reconsider the denial of its motion for summary judgment in light of Boomer. In that motion, the Defendant argued that summary judgment is appropriate in light of Boomer because the Plaintiff "has failed to provide any specific evidence that [the decedent]'s alleged exposure to Bendix brakes . . . was a sufficient cause of his injury." In opposition to the Defendant's motion for reconsideration, the Plaintiff submitted a revised expert report, which the Plaintiff argued creates a genuine issue of material fact for trial on causation. The Defendant subsequently moved to strike that declaration on a number of grounds. After extensive briefing and oral argument, the Judge Beryl A. Howell of the District Court granted both motions after ruling that (i) Boomer represents a significant change in the law that applies to the instant case because, as the Virginia Supreme Court noted in Boomer, it was breaking new ground because Boomber found several problems with the substantial contributing factor, which the MDL Court relied upon when it rendered its decision for the Defendant in the instant case; (ii) the Markowitz Declaration was filed untimely under the Federal Rules of Civil Procedure and the MDL Court's scheduling order pertaining to expert discovery; and (iii) without the Markowitz Declaration, the Plaintiff has failed to create a genuine issue of material fact regarding causation. The case is STEPHEN A. WANNALL, as the personal representative of the Estate of John M. Tyler, Plaintiff, v. HONEYWELL INTERNATIONAL, INC., f/k/a Allied Signal, Inc., Defendant, Civil Action No. 10-351 (BAH) (D.D.C.). A full-text copy of Judge Howell's May 14, 2013 Decision is available at http://is.gd/4Eo7w9 from Leagle.com. ASBESTOS UPDATE: NY Ct. Consolidated 4 Meso Cases for Trial ----------------------------------------------------------- Judge Saliann Scarpulla of the Supreme Court, New York County, ordered on May 13, 2013, the consolidation for trial purposes four personal injury/wrongful death actions after determining that certain commonalities exist, and certain issues that the Defendants collectively claim predominate over the commonalities will not defeat the Plaintiffs' application for a joint trial. Specifically, the Court that that (1) the Plaintiffs are all represented by the same law firm; (2) although three of the Plaintiffs have died from mesothelioma, their deaths will not prejudice the jury against the remaining living Plaintiff because he is suffering from the same terminal illness; (3) there is not such extensive discovery remaining to warrant denying the order to show cause and any outstanding discovery can be resolved within a short time frame and the court will make reasonable efforts to resolve any outstanding discovery concerns; and (4) the factors laid out in Malcolm v. National Gypsum Co., 995 F.2d 346, 351-352 (2nd Cir., 1993) do not require that plaintiffs share identical occupations or time periods of exposure, rather, just that there be similarities among the occupations and time periods of exposure. In this case, the Court found that there are sufficient similarities in the manner in which the Plaintiffs performed their respective tasks at various work sites during overlapping periods of time, all starting in the 1950s and 1960s. The case is In Re: NEW YORK CITY ASBESTOS LITIGATION pertaining to FRANK KESTENBAUM AND ALICE KESTENBAUM, ALBERTO FERNANDEZ, ROBERT SPINA, CARMEN WILSON, Plaintiffs, v. DUREZ CORPORATION, ET AL., Defendants, Docket No. 190421/11, Nos. 190399/11, 190321/11, 190143/11, Motion Seq. No. 1 (N.Y. Sup.). A full-text copy of Judge Scarpulla's Decision dated May 15, 2013, is available at http://is.gd/izH9Dafrom Leagle.com. ASBESTOS UPDATE: Parties in NY PI Suit Fight Over Jurisdiction -------------------------------------------------------------- Raymond Finerty was diagnosed with mesothelioma on December 30, 2009. He and his wife Mary Finerty commenced an action in 2012 to recover for personal injuries sustained in connection with his alleged asbestos exposure. The Plaintiffs allege, among other things, that the asbestos-containing products of Henry Ford & Son, Ltd., and Ford Motor Company, Ltd., caused or contributed to Mr. Finerty's injuries. According to the records, Mr. Finerty was born in Ireland. He testified that during the 1970's and early 1980's he worked as a mechanic and was exposed to asbestos containing products from cars, tractors and associated replacement parts. Mr. Finerty emigrated to the United States in 1985. He has lived in Queens, New York with his family for almost 30 years. The Defendants each argue that they are entitled to dismissal for lack of personal jurisdiction because neither conducts business or has a presence in New York and the only place where Mr. Finerty's alleged exposures to asbestos from their products occurred is Ireland. Thus, Defendants assert that there lacks any nexus to New York sufficient for jurisdiction to attach. In opposition, the Plaintiffs contend that Ford England is or was present and doing business in New York through a host of dealers and agents and that their independent investigation reveals that both Defendants are mere departments of Ford Motor Company and can be sued in New York because Ford USA is present and doing business in the city. The Plaintiffs seek jurisdictional discovery. In a May 17, 2013, decision and order, Judge Sherry Klein Heitler of the Supreme Court, New York County, found that the Plaintiffs have made a sufficient start to warrant jurisdictional discovery concerning the relationship between the Defendant and Ford USA, and the extent to which they may have done business in the United States, either directly or through agents. Accordingly, Judge Heitler referred the issue of jurisdictional discovery to the NYCAL Special Master and the motion by Ford Ireland and Ford England to dismiss for lack of personal jurisdiction are marked off the Court's motion calendar with leave to reinstate following the completion of discovery overseen by the Special Master. The case is RAYMOND FINERTY and MARY FINERTY, Plaintiffs, v. ABEX CORPORATION, et al., Defendants, Docket No. 190187/10, Motion Seq. 007, 008, 009, 010 (N.Y. Sup.). A full-text copy of Judge Heitler's Decision is available at http://is.gd/ZNPOb5from Leagle.com. ASBESTOS UPDATE: Untimely Removal of Suit Warrants Remand --------------------------------------------------------- Ronald S. Scearce and Alicia J. Scearce filed a motion to remand their asbestos-related personal injury action to the Superior Court of New Jersey, Middlesex County, contending that Defendant Raytheon untimely removed the action 90 days after service. Raytheon counters that its removal was timely because although the company received the Plaintiffs' complaint on July 19, 2012, the complaint did not provide sufficient factual orientation to notify Raytheon that the action was removable. Instead, Raytheon argues that the company was not aware of federal jurisdiction until Mr. Scearce's deposition in September 2012. Raytheon argues that it promptly filed the notice of removal on October 19, 2012, within 30 days of learning of the basis for federal jurisdiction. Because Raytheon has not satisfactorily established the timeliness of removal, Judge Robert B. Kugler of the U.S. District Court for the District of New Jersey granted the Plaintiffs' motion to remand. The case is RONALD S. SCEARCE et al., Plaintiffs, v. 3M COMPANY, et al., Defendants, Civil No. 12-6676 (RBK/JS)(D.N.J.). A full- text copy of Judge Kugler's Opinion dated May 16, 2013, is available at http://is.gd/lcwC50from Leagle.com. ASBESTOS UPDATE: Santa Barbara Jury Returns Defense Verdict ----------------------------------------------------------- Following a nine week trial, a Santa Barbara jury returned a 12-0 defense verdict in a closely-watched case involving complex claims of bodily injuries and economic damages in a mold exposure and asbestos. Victoria Ersoff and Uyen Nguyen with Wood Smith Henning & Berman LLP represented the defendants. Plaintiffs Inger Budke, William Budke and their children sued the Housing Authority of the City of Santa Barbara, its Executive Director/CEO; Deputy Executive Director/COO; and Director of Property & Development for bodily injuries, emotional distress, property damage, loss of consortium and economic losses allegedly stemming from exposure to mold and asbestos in a senior housing community. Inger Budke worked as the Resident Coordinator at the apartments owned by Defendants. Budke lived there with her family. Plaintiffs accused Defendants of failing to remediate conditions in the apartment which rendered it uninhabitable. Plaintiffs alleged that Defendants did not properly train their maintenance crew regarding the identification and remediation of mold and asbestos, and violated asbestos regulations in their maintenance and remediation work property-wide. Plaintiffs alleged adverse health conditions as a result of living in an uninhabitable apartment. They claimed that their daughters developed asthma and severe allergies, and that their youngest daughter was born with severe neuro-cognitive and neuro-behavioral deficits as a result of conditions in the apartment. Strategically crafted motions in limine and a full week of 402 hearings resulted in all neurological, neurobehavioral and psychological claims being dismissed by the Court. All evidence relating to mycotoxins and poisons was likewise dismissed. Plaintiffs took seven weeks to present their case to the jury. "We knew we had a smart jury and, with such a long trial, we made the strategic decision to cut our witness list in half and present our entire case in only eight days," said Wood, Smith, Henning & Berman lead trial attorney Victoria Ersoff. After deliberating less than one day, the jury returned with a verdict for the Defense. They also found Plaintiff Inger Budke to be contributorily negligent. Prior to trial, Defendants served statutory offers to compromise on each of the Plaintiffs totaling $54,000. In voir dire, Plaintiffs' counsel informed the panel she would be asking the jury to award Plaintiffs millions in compensatory and punitive damages. Defendants are entitled to recover from Plaintiffs their attorneys' fees & costs. Wood, Smith, Henning & Berman offers world-class representation for small to middle market firms across a comprehensive range of practice areas. Through decades of experience and in-depth legal knowledge, we can anticipate problems, seize opportunities and get cases resolved. ASBESTOS UPDATE: Abatement Work at Pan Am Site to be Awarded ------------------------------------------------------------ Levi Pascher, writing for The Leader Herald, reported that the Common Council is expected to release the bid-opening results for the asbestos abatement at the former Pan American Tannery, 312 W. Fulton St., at its meeting. According to the report, City Department of Public Works Director Kevin Jones said the city had an environmental consultant come in to do a survey. The consultant estimated the cost to have the asbestos at the site removed would be $122,000. The money for the work was set aside years ago, Finance Commissioner Bruce Van Genderen told the news agency. Jones said after the removal is finished, the city will be able to complete the Pan Am project this year after it demolishes the buildings and installs a soil cap. Jones said the soil cap only will be necessary on the vegetated and exposed soil areas. After the bid opening, the council will award the asbestos abatement to the lowest bidder. ASBESTOS UPDATE: Young Laborers Exploited to Save Costs ------------------------------------------------------- Tom Zytaruk, writing for Surrey Now, reported that it's no secret that asbestos is dangerous but it might come as a surprise how some businessmen willfully put young labourers -- college and high school students among them -- in serious harm's way, and just to save a buck. "I have been to many funerals over the years," one Surrey consultant, with 25 years in the asbestos abatement business, told the news agency. "It's like putting a loaded gun to a worker's head except the exposure doesn't show up for 20 to 25 to 30 years." For many years asbestos was considered to be a miracle building material. It's heat resistant, fire resistant, absorbs sound, resists electrical and chemical damage, and is relatively cheap. The problem is, it's also poisonous. Asbestos represents six types of fibrous silicate minerals. These minerals had been used since the late 1800s in North America, in building and construction materials, until their dangers were discovered a few decades ago. Any building constructed prior to 1990 is likely to contain some asbestos and those built before 1984 will contain a lot. Once inhaled, fine particles lodge themselves deep inside the lungs, where their presence over time can lead to horrific diseases like lung cancer, asbestosis and mesothelioma. Workers in the residential demolition business can be protected from exposure if the material is safely identified and removed. Problem is, doing things the right way is more expensive and takes more time than cutting corners, so some developers and owners seek out labs or consultants who are willing to prepare bogus reports that indicate a building contains no asbestos when it is indeed present. One Surrey consultant, who spoke on condition of anonymity for fear of what effect this report might have on his business, said unscrupulous developers motivated by saving money and cutting time have figured out that with a falsified report they can gut the interior of a house before going to get a demolition permit. "There's a lack of a reporting method for the regulatory board to catch on to," the consultant said. "It's like the Wild West. "I have been asked a handful of times every year for 25 years, from different developers or major players, how much money it would cost to change my report," he said. "Surrey is a hot spot, obviously, because Surrey continues to grow rapidly. Buildings coming down, new development." Lorne Heslop, owner of a demolition and recycling outfit called Heslop Enterprises Ltd., knows personally the damage inhaling asbestos dust can do. He's undergone surgery to remove roughly 40 tumours from his lungs. "The problem with asbestos is you don't see it, smell it or taste it until you can't breathe any more," Heslop said. Heslop has been in the building demolition business for more than 35 years and says he trusts only a handful of the more than 30 consultants in the Lower Mainland who provide laboratory analysis of materials suspected of containing asbestos. Some consultants, he said, will report whatever their client wants them to. Mike Holloway, of Assertive Excavating & Demolition Ltd., echoed that. "It's readily available for people to buy false results for Hazmat reports," Holloway said. "Even if they're not buying false ones, so-called consultants can just go out and write whatever they want, and it's not enforced. They're not taking adequate samples to protect the workers and the public. It's too easy for us to still be exposed to asbestos." Heslop advises homeowners to pay attention to some important details when shopping for someone to tear their old house down. Seeing as each city and municipality has its own particular bylaw requirements governing building demolition, Heslop says clients should consult with their local city hall before getting a demolition permit. "The lowest quote is not always the cheapest in the end," he warns. "Always ask for a minimum of five references and visit at least three of the completed job sites. Walk around and look into any forest or bush area for demolition debris hidden by the contractor." Because asbestos insurance is costly, and not all hazardous material consultants and asbestos abatement contractors have it, Heslop says, "you must ask if they have it." He strongly advises people in the market for a contractor to make sure they chose one with a proven track record of protecting their clients from any liabilities. Clients should also ask the hazardous material consultant and asbestos abatement and demolition contractors to include them on their asbestos-coverage insurance, as a co-rider. He does so as standard practice, and is covered for $5 million. "That way my clients know I'm protecting them," he said. "If I screw up, they're covered. I would like to see consultants have to do the same thing." If a consultant won't back up his report, Heslop said, "I'd be very leery of doing business with him." Heslop added that a "good contractor" will give his clients receipts indicating what material was dumped, and where. "Ultimately, it all falls back on the homeowner, unless he's on the contractor's insurance." Don Whyte, executive director of the Hazardous Materials Association, finds it "extremely frustrating" that there is no certification-training program for test sampling consultants in B.C., like there is in Alberta. His association represents 15 hazardous materials contractors, mostly in the Lower Mainland. "We're the people who endeavour to do this properly," he said. "Our contractors are out trying to perform to an industry standard and they're continuously being undermined by contractors that are not only circumventing the regulations but deliberately circumventing, and sometimes quite sophisticatedly. They're getting to be very good at it and sometimes they're smarter than the regulatory agencies." Whyte said WorkSafe BC doesn't recognize who's competent and who's not when it comes to both contractors and consultants who analyze test samples. "There's no bridge between WorkSafe BC and the Ministry of the Environment, and there should be. Those two agencies operate in isolation from one another on these issues. There's a lot that could be done." Al Johnson, vice president of Prevention Services, WorkSafe BC, concedes there is a problem with regulating consultants. "You or I could hang out a shingle tomorrow and start up in this business," he noted. However, he added, certification is not a be-all and end-all solution, either. "Just because you have a driver's licence," Johnson said, "it doesn't mean you are driving it correctly." Certain financial considerations make it tempting for some developers to cut corners. A safety officer with a hazardous material abatement company who, like the consultant, spoke on condition of anonymity, said developers find it cheaper to do business with private labs in the United States, over which B.C. officials have no oversight. "People are getting 'clean' reports that are not necessarily clean," the safety officer said. "Homeowners typically go for the cheapest report. Anybody would. You get what you pay for." Whyte agreed. "They call them sweatshop labs down there." Moreover, as Holloway explained, the cost of doing things the right way can be "astronomical" because drywall containing asbestos must be shipped to Alberta. "We can't accept it in our landfills here. When drywall decomposes it makes a gas, and their water table in Alberta is lower, it doesn't leach. Scientifically, it can't go here." Because it's expensive to ship the drywall to Alberta, that's the reason why you sometimes see it dumped in local parks, at the sides of streets and in ditches. Those consultants and contractors who insist on earning an honest living sometimes feel like they're pushing a rock uphill, only to have it roll down again. "The good companies, if they don't like the report, they will do samples themselves and pay for it out of their own pocket if they have to, to keep the workers safe. The bad companies just demo it, throw it in a box and take it to the dump," Heslop said. Some operators providing asbestos abatement service do so without any procedures in place or qualifications to assess the risk a house might represent. "I've had houses where I know there's been asbestos," Heslop said. "I've given the owner a price; he's basically said f-you. And I come back on the weekend, and school-age kids are in there ripping drywall out that I know is contaminated. I phone up WCB, they come out, shut them down, and decontaminate the kids. The kids go home, and they'll find out in 20 plus years if they're alive or dead. They've got no recourse. The homeowner might get a fine or he might not." "When they're 40 and they have a family, they're going to be on their death bed. And it's not a pleasant death - it hurts," Heslop said. "If your kid's going to work on the weekend removing drywall," he advised, "pay him $50 to stay home, out of your own pocket." Al Johnson, of WorkSafe, has 17 inspectors in the Lower Mainland, working six days a week to ensure asbestos is being properly identified and removed during residential building demolitions. "We have had some success in putting some people out of work," he said. "I think we've made some good solid headway." He pointed out that not all infractions are the result of devious conduct. "In some cases it's a lack of understanding." Johnson said the fines for companies caught not properly handling or removing material that contains asbestos range from $2,500 to $500,000. A stop work order is usually the first step, with repeat fines being multiplied by a percentage of the business operator's payroll. "The larger the company, the larger the fine," Johnson said. The safety officer, who requested anonymity, believes WorkSafe is trying their best, but added, "It's like playing whack-a-mole right now." According to Whyte, roughly 100 houses are being demolished in the Lower Mainland every month. "We just don't have the manpower to do the enforcement," he said. Some in the business consider the fines to be light. "A lot of these guys are like 'that's just the price of doing business,'" the safety officer said. "Unfortunately, they don't calculate in the price of these kids' health or the neighbours' health, or the people breathing it in as the truck goes down the road." Whyte and other people in the business think jail time is appropriate, in some cases. "It's criminal activity," Whyte said. "These guys should be charged with assault." He noted that between 1996 and 2005 there were 307 work-related fatalities in B.C., and of those, 145 were asbestos related. That's 15 victims each year. Holloway agreed. "They should be able to make people do jail time for this. They're poisoning people." Heslop said it's up to the politicians "to sit down and give the proper people authority to actually do something. Like jail time would be nice." "It would be great to have jail time, but that's unrealistic." Imposing severe fines, he figures, is a more practical solution. "If you hit them hard enough, they'll see it's cheaper to do it right." Last year a Surrey businessman in the building demolition trade was sentenced to 60 days in prison for civil contempt of court after he ignored a court order telling him to stop exposing his employees to carcinogenic asbestos. Interestingly, Arthur Moore, who was then doing business as AM Environmental, wasn't jailed for putting his workers at risk by exposing them to asbestos fibres but rather, was jailed for ignoring a court order that warned him not to put them at risk. Back in August, 2010, a B.C. Supreme Court judge in Vancouver had banned Moore from being in the asbestos abatement business and demolition or drywall business after WorkSafe BC went after him. Despite being served with the court order, Moore continued in the business under various different names, working on as many as 15 sites. More court hearings followed, with the British Columbia Court of Appeal eventually finding he had "grievously endangered workers under his direction" by failing to provide them with proper safety gear or training. Moore apologized to the court, saying he wouldn't do it again. Nevertheless, Justice Richard Goepel sentenced him to 60 days in jail for having "deliberately flaunted for an extended time a court order intended to protect worker safety." He did so, Goepel noted, within a day of being told by the court not to. "Such conduct cannot go unpunished," the judge said. ASBESTOS UPDATE: Sunderland Buildings on Asbestos Risk List ----------------------------------------------------------- Sunderland Echo reported that some of Wearside's biggest tourist attractions are among 37 council-owned buildings on the Asbestos Risk Register. According to the report, Sunderland Museum and Winter Gardens, Monkwearmouth Station Museum and Washington F Pit Museum are listed as containing the potentially deadly material. Other civic buildings on the register include the Civic Centre, Jacky White's Market, Washington Arts Centre, Silksworth Ski Slope, Silksworth Tennis Centre and the city's Central Library, the report said. Some of the affected buildings, built in the mid 20th century, have exceeded their original life expectancy but are still being used. Properly managed, asbestos is not deemed to be a risk. However, the concern is that as the civic buildings deteriorate in condition, so does the asbestos in them. Earlier this year, the Echo revealed how 65 per cent of schools in the city also contained the material. Hetton School has had to shut off a section of its building after adverse weather conditions disturbed the asbestos fibres. When built, many of the civic buildings contained a large amount of amosite, commonly referred to as "brown" asbestos and sometimes "gray" asbestos -- one of the more hazardous forms of the material. If asbestos is damaged then the fibres can be released and breathed in. A large exposure can cause mesothelioma. Visitors to some attractions did not seem overly concerned about the presence of the material. Helen Swain, 33, who was visiting the Museum and Winter Gardens with daughter, Summer, three, said: "My brother-in-law works in asbestos removal so I know how common it can be. "Too many buildings have it in these days, but I would not be put off going somewhere just because there was asbestos present." Karen Devlin, 28, visiting the museum with niece Gemma, seven, added: "I bet most buildings you go in have asbestos. I would like to think everything is being done to get rid of it, though." Councillor Mel Speding, cabinet secretary at Sunderland City Council, said: "We take the issue of asbestos very seriously. "Asbestos was a common building material in the 1960s and is present in many buildings constructed during this time. However, if asbestos is in good condition and unlikely to be disturbed, it is often safer to leave it in place. "The council has an asbestos management policy, which complies with current legislation and the safe management of asbestos in council and other public building and is kept under constant review. "It has an ongoing inspection programme in place of buildings where asbestos is present." ASBESTOS UPDATE: Rwanda Gov't. to Eradicate Asbestos Roofing ------------------------------------------------------------ Jean de la Croix Tabaro, writing for AllAfrica.com, reported that more than one million square metres of asbestos roofing have to be cleared and disposed of by 2016, an exercise that will cost both government and the private sector an estimated Rwf23b. According to the report, eradicating the material not only requires logistical support, but also specialised experts to ensure that the toxic substance is handled in a way that will not harm human life. Rwanda Housing Authority (RHA), which is spearheading the exercise, says several people from construction enterprises, civil society, Police and inmates have been trained to do the work, the report said. "Those are the only people who have the mandate to remove, transport and bury asbestos in designated areas," said Eric Kananga, the in charge of asbestos eradication in RHA. Kananga was addressing technicians at the 5th training on asbestos eradication in Kigali at the weekend. About 2,000 personnel have been trained. The government has so far disposed of 13 per cent of asbestos since 2011. Budget constraints: Efforts to eradicate asbestos started in October 2009, when Cabinet gave a six-month period within which people or institutions with asbestos on their roofs should have got rid of them. However, this deadline was not met. RHA is decrying budgetary constraints. "The budget is still a challenge, given that individuals say they do not have enough money to replace the asbestos," Kananga said. As far as public structures, which include public hospitals, schools and government buildings are concerned, institutions and districts are looking at the government treasury. "Technicians are now available; all we are waiting for is money to pay them. Since most of the houses are public buildings, we are expecting State budget to cater for the exerciser," said Solange Mukasonga, the mayor of Nyarugenge District. She said they are sensitising the private sector on the dangers of asbestos so that they appreciate the urgency of the exercise. Bishop Smaragde Mbonyintege, the spokesperson for the Catholic Church, which has a biggest number of asbestos roofs after the public sector, told The New Times that government has a big role to play in the activity because those who used asbestos did it legitimately. "We asked for incentives for the exercise. We recognise it is in good faith that we have to get rid of asbestos but we asked government for help," he said. Only public institutions are certain to receive government support. ASBESTOS UPDATE: Nottingham Plumber Fined for Asbestos Work ----------------------------------------------------------- A Nottinghamshire-based plumber has been prosecuted and fined after carrying out unlicensed asbestos work that placed a young family in danger. Dean Fisk attended a hearing at Nottingham Magistrates' Court on May 13, at which he pleaded guilty to breaches of both Regulations 10(1)(a) and 16 of the Control of Asbestos Regulations 2006. An investigation by the Health & Safety Executive (HSE) revealed the plumbing professional had installed a new galvanised water tank in the loft space of a house in Gardendale Avenue, Clifton in January last year. During the installation process, an asbestos box was removed from around the old tank, but an examination of the substance was not carried out prior to its removal, leaving a potential risk that the homeowners may now have been exposed to dangerous asbestos fibres. HSE inspector Kevin Wilson commented: "This family home would not have been contaminated if the asbestos had been identified by Dean Fisk before the work was started. Work could then have been undertaken without disturbing the asbestos or have been carried out by a suitably trained person." In total, he was fined GBP5,000 and ordered to pay prosecution costs of GBP4,000. He was also ordered to pay compensation to the family of GBP2,870. The news follows the recent case of two contractors from G Evans (Services) in Staffordshire, with the pair prosecuted by the HSE after carrying out unlicensed asbestos removal at Glenthorne Community Primary School in 2009. Staffordshire County Council was fined GBP10,000 over the incident after pleading guilty to breaching Section 3(1) of the Health and Safety at Work etc Act 1974. Over the last three decades, Hodge Jones & Allen solicitors in London has earned its unique reputation in the legal profession by representing ordinary people caught up in the most extraordinary events. ASBESTOS UPDATE: More Money for Mesothelioma Research Would Help ---------------------------------------------------------------- Letters sent to The Wall Street Journal said more money for mesothelioma research would help. Anthony R. Palmer, M.D., of Durango, Colorado, stated, "So I can't get a free six-inch Subway sandwich with chips and soda from a pharmaceutical company during a brief lunch break between patients to be detailed on a drug, but "some asbestos lawyers send elaborate gift baskets to doctors at holidays, offer free tickets to professional sports events or offer paid work as expert witnesses" ("The Long Trial: Doctors, Lawyers Ally Over Deadly Cancer," page one, May 6). Asbestos mesothelioma plaintiffs lawyers and their medical collaborators are a disgrace to both professions and responsible in part for the unaffordable cost of health care in the U.S." Lee M. Krug, M.D., David S. Ettinger, M.D., and Mary Hesdorffer, of Mesothelioma Applied Research Foundation, in Alexandria, Virginia, stated, "Mesothelioma is a horrible cancer. Those of us who have cared for these patients have witnessed the devastating effects this disease has on patients and their families. There is a desperate need to find better treatments that will improve the lives of asbestos victims. From our point of view as care providers and researchers, the minuscule fraction of money allocated to funding research for this rare disease is disheartening. Some law firms have acknowledged this funding gap and have supported research in the field. However, this philanthropy must be provided with no strings attached, without the expectation of getting legal referrals in return. While the Mesothelioma Applied Research Foundation would never have been able to provide the $8.4 million in grants without that support, it doesn't make referrals to specific law firms. Instead of criticizing the donations by attorneys to research, the focus should instead be placed on creating an appropriate system to increase research funding. Imagine if even 1% of the $18 billion in trust funds used for asbestos litigation could go to research. This should be analogous to research support received by pharmaceutical companies for which there are clear-cut guidelines regarding the disclosures investigators must make about financial conflicts of interest. Furthermore, the process for distributing the money needs to be equitable and directed at funding the most promising research, where all grant applications are reviewed by physician-scientists who specialize in the field, much like what is done at the NIH and many foundations. While patients and their families are certainly entitled to compensation for their suffering, we believe they would rather have longer and healthier lives with better therapies for this dreadful disease." Robert Miller, of Plantation, Florida, stated, "I am overwhelmed by the altruism of the plaintiffs bar. Certainly these charitable instincts will continue long after the passing of the last mesothelioma client. Anybody taking bets on that?" Linda Reinstein, Co-founder and President of Asbestos Disease Awareness Organization, in Redondo Beach, California, stated, "As a mesothelioma widow, I am appalled by the four-part series concluding with "Doctors, Lawyers Ally Over Deadly Cancer." The article makes no mention of the culpability of the companies that have knowingly exposed workers to asbestos or of key facts related to asbestos use in the U.S. Although asbestos has been known to cause disease since 1906, the U.S. imported 1,160 tons last year to "meet manufacturing needs." An estimated 35 million buildings across the nation contain asbestos-contaminated materials. Several U.S. financial institutions and mutual funds currently hold shares in foreign asbestos mining and manufacturing companies. Since the first article in the series was published on March 11, approximately 1,500 Americans have died from asbestos-related disease. American families, like my own, will continue to suffer until the U.S. exits the toxic asbestos trade." ASBESTOS UPDATE: Councilor Lends Support to Asbestos Walk --------------------------------------------------------- Busselton-Dunsborough Mail reported that when Cr John McCallum farewelled 35 walkers with a $300 donation from Busselton city on Monday morning it was with a lot of emotion. According to the report, the walkers started in Dunsborough on the 2013 Asbestos Diseases Society of Australia walk for research and awareness and are due to finish at Parliament House. Cr McCallum's "best mate" passed away from the disease mesothelioma early this month, the report related. Among the walkers was former MP Larry Graham. "I chaired the parliamentary committee into the town of Wittenoom, which gave me an enormous insight into the asbestos diseases," he said of the former asbestos mining town. "I've been working with them for years and was in the previous walk, from Kalgoorlie." The number of walkers is expected to multiply quite significantly by the time they reach Perth. Supporters are Walking from Dunsborough to Perth to fund lifesaving medical research and to raise awareness of the killer asbestos fibres being released from the decaying asbestos products that are still in homes and commercial and public buildings. The face of this year's walk is Bev Bertocchi, who lost both her husband and her mother-in-law to the deadly asbestos cancer, mesothelioma. "Bev's strength is an inspiration to us all," Asbestos Diseases Society of Australia president Robert Vojakovic said. Donations to the walk can be made by visiting their website at www.asbestosdiseases.org.au, by telephone on 9344 4077 or by posting to Asbestos Diseases Society of Australia, PO Box 1394, Osborne Park 6916, with cheques or money orders made out to 'Asbestos Diseases Society of Australia Walk 2013'. ASBESTOS UPDATE: Registers Being Checked in S. Australian Schools ----------------------------------------------------------------- ABC News reported that the South Australian Government is looking at whether other schools have asbestos issues, after children were potentially exposed to the dangerous material at Littlehampton Primary School. According to the report, it revealed 47 students and four teachers might have been affected in 2009 when interactive white boards were being installed on the walls of two classrooms where asbestos was present. The school's asbestos register was updated in 2010 to show there was asbestos in the walls. But the whiteboard renovation work was drawn to the principal's attention only last month. Premier Jay Weatherill said the Government was checking to make sure asbestos registries were accurate and up-to-date for all schools. "It shouldn't have happened, I'm sure parents are very anxious and we're affording them all the support about medical advice and attention that they request," he said. ASBESTOS UPDATE: Indian Environment Minister Denies Fibro Hazards ----------------------------------------------------------------- The Telegraph reported that India's environment ministry has ignored domestic laws and reneged on its own pledge by telling a global convention there is not enough evidence to show that asbestos is hazardous to health, a non-government group said. The group, called Toxics Watch Alliance, has complained to the Centre that the ministry delegation's position at the UN's Rotterdam Convention in Geneva earlier this month was contrary to Indian laws and the ministry's own earlier decision. Toxics Watch Alliance said the ministry delegation had told the convention that studies by Ahmedabad's National Institute of Occupational Health (NIOH) had shown no hazards from white chrysotile asbestos, widely used in the construction industry to make asbestos-cement material. The convention was debating the need to include chrysotile asbestos into a special list of hazardous substances that would make it obligatory for exporting countries to alert importing countries about shipments. In a letter to Prime Minister Manmohan Singh, Toxics Watch Alliance has said it appears (asbestos) industry representatives have "overwhelmed government representatives who were made to take a position against human health and the environment". The group has cited several domestic laws that classify asbestos as a hazardous substance. The ministry's own vision statement says: "Alternatives to asbestos may be used to the extent possible and use of asbestos may be phased out." Toxics Watch Alliance also cited a concept paper by the Union labour ministry circulated at an India-European Union conference on occupational health that said the Indian government was "considering a ban on the use of chrysotile asbestos in India to protect the workers and general population against primary and secondary exposure to chrysotile form of asbestos". It said the ministry stand this year was a "volte-face" over its support for the listing of asbestos as a hazardous substance indicated by the environment ministry's own delegation at the previous Rotterdam Convention meeting in 2011. "In 2011, India received a standing ovation for its support, we are saddened by what happened this year," said Gopal Krishna, a representative of Toxics Watch Alliance in New Delhi. The Union environment secretary and the head of the environment ministry delegation to the convention this year were not available for comment. Another member of the delegation declined to provide any response. Toxics Watch Alliance has said documents it obtained through the Right to Information Act have shown that the chrysotile asbestos industry had provided Rs 16 lakh to the NIOH study that cost about Rs 60 lakh. The non-government group said the documents also reveal that a review committee of the NIOH study had said that the report of the findings would be "finalised after due discussions with the asbestos industry". The International Agency for Research on Cancer had said in 2009 that "there is sufficient evidence in humans for the carcinogenicity of all forms of asbestos". ASBESTOS UPDATE: Head Teachers "Childish" Over Cwmcarn Fibro Row ---------------------------------------------------------------- South Wales Argus reported that a Caerphilly councillor accused a group of headteachers of playground behaviour after they said the authority showed Cwmcarn High School "favourable treatment." According to the report, the teachers made the claim after the council agreed to pay GBP1 million to remove asbestos from the Cwmcarn site. An open letter, signed by 12 of the county's 14 head teachers and sent to pupils and councillors last week, blasted the plan as "an inappropriate use of public funds" and called on the council to withhold the money in light of the 21st Century Schools programme, which will eventually see three county secondary schools close. Risca West councillor David Rees said: "I would have expected to see such behaviour in the playground, not by leaders of our most important assets for children. The school is going through a difficult time already, this should have been managed a lot better." Pupils from Cwmcarn are currently being taught at the Learning Zone in Ebbw Vale. Kelly East, a Cwmcarn parent who campaigned to save the school earlier this year, said pupils have taken the letter to heart. "The council unanimously approved us having a grant, which means it is not a complete handout of money to the school," she said. "It's saddening that people in high stations haven't taken into consideration the pupils, some of whom have exams and have been upset on Facebook." The letter also accused Cwmcarn's head teacher Jacqui Peplinski of suggesting the school's future would be guaranteed following the asbestos repairs. A council spokeswoman said the decision taken by members stands and the school is responsible for any overspend. The funding will be released on a staged basis once the council is satisfied works are compliant along the way. Mrs Peplinski responded on the school's website, stating that the purpose of the grant is the removal of the asbestos, not school improvements. Head teachers who signed the letter THE letter was signed by John Kendall, head teacher at Risca Comprehensive, on behalf of Peter Ward at Bedwas High School; Ravi Pawar at Blackwood Comprehensive; Owain ap Dafydd at Ysgol Gymraeg Cwm Rhymni; Heather Duncan at Lewis Girls' School; Chris Parry at Lewis Pengam; Lesley Perry at Newbridge School; Chris David at Oakdale Comprehensive; Tim Williams at Pontllanffraith Comprehensive; Robert Davies at Rhymney Comprehensive; Ian Kilcoyne at St Cenydd Comprehensive; and Kerry Davies at St Martin's School. The deputy head teacher of Heolddu Comprehensive in Bargoed, which was the only Caerphilly secondary school apart from Cwmcarn not to sign, said he had no comment. Last week Mr Kendall, who is also chairman of the Caerphilly Secondary Heads Association, refused to discuss the letter "pending discussion with the council". ASBESTOS UPDATE: Co. Boss Given Six Months for Factory Demolition ----------------------------------------------------------------- Belfast Telegraph reported that a company owner who demolished a disused factory in a built up residential area despite knowing there was more than 250 tonnes of asbestos has been handed a six month jail term. However John Lewis, trading as John Lewis Plant Hire and Contracts, walked free from Belfast Crown Court after His Honour Judge Kinney suspended the jail term for two years, the report said. He told Lewis, whose company address was given as the Lany Road in Moira, it was his view that "this was a deliberate breach by the defendant of his obligations" to ensure the health and safety of not just employees but also the wider public, the report related. "The dangers of asbestos are obvious and well recognised," said Judge Kinney who revealed that reports from the Health and Safety Executive showed there was an "imminent risk to health" because of the way the asbestos had been handled. He had earlier heard how Lewis' company had demolished two other factories in the Broadway Industrial Estate, just off Rodden Street in the Village area of south Belfast and had employed a specialist disposal firm to deal with asbestos in 2008. However despite having a survey which proved there was the potentially lethal material in the third building, they went back to demolish it in February 2011 and were only stopped when officials from the Health and Safety Executive intervened. Prosecuting lawyer Peter Magill had recounted how there was a total of 1,300 square metres of asbestos insulating board and cement on the site, amounting to some 250 tonnes. The proper disposal of the material, he told the court, had left Belfast City Council with a bill for GBP290,000 (pounds). The former owner of the company, Mr John Lewis, had pleaded guilty to five offences relating to the management of asbestos under the Health and Safety at Work act on February 8, 2011. With the court having heard how Lewis agreed to demolish the factory in exchange for the "scrap value" of metal at the site, Mr Magill said that whatever had happened, "it was clear that he was carrying out his work in an unsafe fashion". "Unsafe to his workers and unsafe to the surrounding area which was in the heart of the city and where there would be a large number of members of the public and indeed, a primary school not far distant," said the lawyer. Defence lawyer Joe Lindsay told the court that as a result of this case and other matters Lewis, who had been in the trade in excess of 40 years, was now bankrupt. Revealing how employees of John Lewis were found on site hand picking pieces of asbestos out of the contaminated rubble without appropriate protection, Louis Burns, Principal Inspector for HSENI's Major Investigation Team said: "The dangers of asbestos are well known. It is vital that buildings are properly surveyed for asbestos and that asbestos is removed by a licensed asbestos contractor prior to demolition. If these vital steps are not followed there is the potential for asbestos to be released and spread in an uncontrolled manner. This potentially gives rise to serious health concerns." ASBESTOS UPDATE: ADEM Issues Statement on Asbestos Removal ---------------------------------------------------------- Lance Griffin, writing for Dothan Eagle, reported that the Alabama Department of Environmental Management issued a written statement regarding an exterior asbestos abatement that occurred last month at the Saints Apartments, a building recently purchased by the Dothan Downtown Redevelopment Authority. The Historic Preservation Commission declined to award an "after the fact" certificate of appropriateness for the abatement last week after some members raised questions about the abatement process. Commission members asked for documentation that the company performing the abatement followed proper procedure. Ron Gore, Air Division Chief for the Alabama Department of Environmental Management, provided the following statement to the DDRA: "The asbestos work that was done at the abandoned house on that street corner was in compliance with all asbestos regulations. 1. An inspection was made for the presence of asbestos-containing materials (ACM) by a licensed inspector. The only ACM present was the siding on the exterior of the building. 2. A proper written notification was submitted to ADEM prior to ACM removal by Alabama Environmental, Inc. 3. Alabama Environmental, a company certified as an asbestos removal company by ADEM, removed the siding, although any trained or untrained company was authorized to remove it. The use of a certified company ensured that the exposure of the public to asbestos fibers was minimized. 4. The ACM siding was taken to the Dothan landfill which is authorized by ADEM to receive them. The above procedures satisfy all requirements of the asbestos regulations, whether this was a renovation or demolition, or whether or not it was a building subject to the regulations." HPC members Ed Vaughn, Sam Newton and Mark Pepe said they needed substantial documentation to show that all proper environmental procedures had been followed in the abatement. It is not yet known if the DDRA will make another request for an after-the-fact certificate of appropriateness for the asbestos removal. The HPC meets again June 13. ASBESTOS UPDATE: Lung Cancer Widow Claims Asbestos Damages ---------------------------------------------------------- Tony Green, writing for Get Surrey, reported that a widow stricken by terminal lung cancer due to years spent washing her husband's asbestos-contaminated overalls is now battling for record GBP500,000 compensation -- following his death from the same disease. According to the report, Monica Haxton, 66, watched her husband Ronald succumb to mesothelioma -- an incurable cancer of the lining of the lungs associated with asbestos exposure and caused by his years spent working as an electrician for Philips Electronics UK Ltd in Guildford. She nursed him through his final illness after Mr Haxton's symptoms surfaced in June 2008, and witnessed the 'terrific suffering' he went through until his death in July 2009, her barrister, Harry Steinberg, told London's High Court, the report said. Barely two years later, Mrs Haxton began experiencing the same symptoms of breathlessness as her husband, said the barrister, and a diagnosis of malignant mesothelioma was confirmed in January last year. Her life expectancy would have been another 23 years but for the disease, but has now been 'drastically curtailed', said Mr Steinberg, who added: "This is a devastating illness...the prognosis is bleak." Mr Haxton worked for Guildford-based Philips Electronics for 42 years, the court heard, and was 'exposed to a very large quantity of asbestos dust on a daily basis' during the early part of his career. The exposure occurred as he worked alongside teams of laggers stripping away asbestos and applying new layers of lagging, said Mr Steinberg, adding that the company has admitted liability, although it is disputing the value of the widow's claim. The Haxtons wed in 1964 and she was exposed to asbestos in the early years of their marriage while 'washing his contaminated overalls by hand', the court heard. The material was routinely used in the workplace until the 1980s and 90s when its risks became well-known. Asbestos dust and fibres are notorious for staying dormant in the body for decades before the extent of damage becomes clear. Mrs Haxton, from Sutton, worked as a ward clerk at St Anthony's Hospital, Cheam, before her illness forced her to stop work. She is suing Philips Electronics for exposing her to injury through her husband's work. The court heard Philips has offered Mrs Haxton GBP310,000 to settle her case, but is disputing her claim to another GBP221,000 to reflect her 'loss of dependency' on her husband. The company argues that figure should be reduced to take account of Mrs Haxton's own much reduced life expectancy. Partly because she is claiming damages for her own injuries, as well as for her husband's death, Mrs Haxton's claim is believed to be the largest ever made in a mesothelioma case. The High Court will give its ruling on her case at a later date. ASBESTOS UPDATE: Blackpool Man Succumbs to Mesothelioma ------------------------------------------------------- Rebecca Draper, writing for Blackpool Gazette, reported that a man died of a tumour brought about by his long-term exposure to asbestos, and inquest heard. John Woolhouse worked at Imperial Chemical Industries (ICI) for many years since joining as a youth trainee in 1960, and for a long time he worked as a forklift truck driver. Blackpool Coroner, Anne Hind, heard every couple of years, the company would shut down and the asbestos lagging was removed from the pipes and vessels for maintenance and inspection. In a statement before his death, Mr Woolhouse, 69, of Elms Avenue, Lytham, said: "It was not a clean process, and no tenting was put up or protective equipment that I could see. "I have been exposed to all manner of chemicals with ICI; something which has caused my wife and myself some considerable concern, although this now pales into insignificance now I have been diagnosed with mesothelioma." Mrs Hind said: "It has to be acknowledged that this exposure was over a very long period of time in one form or another." Mr Woolhouse, who died on December 26 last year at Trinity Hospice, had a tumour in the lining of his left lung which had spread to other parts of his body, caused by the mesothelioma which is a cancer caused by exposure to asbestos. Recording a verdict of death by industrial disease, Mrs Hind said: "The thing that is most frightening is that it was all so long ago when the exposure took place. "It's like a ticking time bomb." ASBESTOS UPDATE: Australian Gov't. to Invest $10.5MM for Safety --------------------------------------------------------------- The OHS News reported that Australian Government will invest more than $10.5 million to establish a national approach in protecting the people from asbestos-related diseases. This was revealed by the Minister for Employment and Workplace Relations, Bill Shorten, the report said. "Asbestos is a cruel, indiscriminate killer, and because of its widespread use over much of the 20th century, it remains a persistent threat to Australians," said Mr Shorten. "In 2010, 642 Australians died from mesothelioma, and for every death attributed to mesothelioma, it's estimated two further people die from lung cancer caused by exposure to asbestos. "Over the next 20 years, up to 40,000 Australians are expected to be diagnosed with an asbestos-related disease. There are children not yet born who'll die of an asbestos-related disease." Just this year, Mr Shorten introduced legislation into Parliament to establish the Asbestos Safety and Eradication Agency. "This is an example of this Government's commitment to protect Australians by leading the first nationally coordinated approach to handling asbestos beyond our workplaces." One of the agency's missions is to implement a plan to address illegal dumping, to encourage safe disposal across the country, and to establish a strategy for the staged removal of asbestos- containing materials from government and commercial structures. The Bill to establish the agency is now before the House of Representatives. It is the Government's objective that the agency will start operations from July 1, 2013. ASBESTOS UPDATE: Queen Elizabeth II Stadium Fibro Cleanup Underway ------------------------------------------------------------------ Asleigh Stewart, writing for The Press, reported that the cleanup of asbestos unearthed at Queen Elizabeth II Stadium is under way, but it is not known when it will be finished. According to the report, a small amount of asbestos piping was found buried at the site during the demolition of the earthquake- damaged complex. Some areas near where the piping was unearthed are now closed to allow environmental testing as a precaution, the report said. Results from the tests will be known and will determine when the cleanup can be completed. The closure includes a public walking track, despite it not being close to where the piping was found. The Christchurch School of Gymnastics, which borders the stadium, will remain open during the cleanup. Chief executive Avril Enslow said the school had been "fully informed" by the Christchurch City Council and the Canterbury Earthquake Recovery Authority (Cera) and was "perfectly happy" to stay open. "Cera are very cautious, so if there was any danger to us or members of the public they would let us know," she said. "If they say it's safe for us to be there we are quite happy to do so." A Cera spokeswoman said there was minimal risk to surrounding areas. "Only the areas that need to be closed to assess for risk have been closed as there is no wish to create unnecessary disruption," she said. ASBESTOS UPDATE: S. Australia Gov't Fails to Check Schools ---------------------------------------------------------- Lauren Novak, writing for Herald Sun, reported that the State Opposition has accused the Government of failing to properly inspect asbestos in schools or keeping inaccurate records. According to the report, Opposition education spokesman David Pisoni said documents obtained under Freedom of Information laws showed there were 29,102 school sites in SA were asbestos was present. He told the news agency the documents showed many had "not been inspected for up to nine years". This meant the Education Department had "failed to annually inspect schools registered as having asbestos or has failed to keep accurate records", he said. Education Minister Jennifer Rankine said the government had spent nearly $11 million removing asbestos in schools since 2010. Infrastructure Minister Tom Koutsantonis said he had "no evidence" that annual checks were not undertaken. He said less than one per cent of school sites contained asbestos materials that were recommended for immediate removal. The 2011-12 Asbestos Risk Reduction Report showed 78 per cent of sites were asbestos-free or contained asbestos materials "that do not pose an immediate exposure risk and can be scheduled for removal at suitable times in conjunction with other building work", he said. ASBESTOS UPDATE: Surrey Company Fined for Poole Asbestos Breaches ----------------------------------------------------------------- BBC News Dorset reported a decorating company has been fined GBP45,000 after it exposed staff and members of the public to potentially fatal asbestos material in Dorset. According to the report, Surrey-based MJC Decorating and Refurbishing Ltd failed to check for asbestos and use protective clothing when refurbishing offices in Poole. At Bournemouth Crown Court, the company pleaded guilty to three breaches of the Control of Asbestos Regulations 2006. The Health and Safety Executive (HSE) said it was "a very serious incident". HSE inspectors found the company had removed ceilings at the two- storey Sentinel House block at the Nuffield Industrial Estate without carrying out a survey for asbestos. 'Totally needless' The agency said four employees and 14 agency staff working under the control of MJC were exposed to asbestos dust and fibres that can cause respiratory problems and even incurable lung diseases. It said MJC workers wore normal work clothes that became contaminated with asbestos fibres. This may have led to the exposure of many more members of the public during their journey to and from the site over a two-week period in 2009. HSE inspector Helena Tinton said: "Regulations on dealing safely with asbestos have been in place for many years and are widely known in the industry. "This totally needless incident would not have happened if MJC had carried out proper assessments and had trained staff on site." The company, based at London Road, North Cheam, in Sutton, Surrey was fined a total of GBP45,000 and ordered to pay GBP36,943 in costs. ASBESTOS UPDATE: ART Pays Out RMB250MM to 3,600 Claimants --------------------------------------------------------- Samantha Moolman, writing for Creamer Media's Mining Weekly, reported that the Asbestos Relief Trust (ART) marks its tenth year of existence in July, having provided compensatory relief for mineworkers suffering from asbestos-related diseases (ARDs) since July 2003. According to the report, the ART has, to date, paid more than R250-million in claims to 3 639 qualifying asbestos workers and their dependants, as well as to claimants who lived near certain mines and suffered from environmental exposure to asbestos. The trust has processed about 14 500 applications so far, 30% of which represented claimants suffering from compensable ARDs, the report said. ART manager Tina da Cruz tells Mining Weekly that the trust will observe the ten-year milestone by hosting a series of lectures and panel discussions focused on the medical aspect of ARDs in Johannesburg, Cape Town and Kuruman -- where most of the trust's claimants and potential claimants reside. Details of the events are still being finalised, but Da Cruz can confirm that the lecture series will tap into the minds of experts who have been working with the ART since its inception. She adds that, while the events will seek to inform the general public, it will also target former mineworkers who could be potential claimants. "This marks an important time in the business cycle of the mining sector to assess the work done by the Asbestos Relief Trust," comments ART chairperson Piet van Zyl. He adds that, while the trust has faced challenges in the last decade, it has been able to provide compensation in addition to that provided by the Compensation Commissioner in terms of the Occupational Diseases in Mines and Works Act (Odimwa). "This is an important medium in terms of how to deal with legacy issues in our mining industry," Van Zyl avers. The trust, unprecedented in South Africa, was established as a result of an out-of-court settlement in 2003 with former asbestos- mining companies Griqualand Exploration & Finance Company, or Gefco, and African Chrysotile Asbestos (ACA), which fell under mine holding company Gencor. The settlement stipulated that the companies compensate former employees, their dependents and communities living in close proximity to their mines who contracted ARDs as a result of the mines' operations. "The ART is an effective, efficient and well-run organisation, bringing tangible benefits to communities affected by asbestos mining," says human rights lawyer Richard Spoor, who represented the mineworkers during the 2003 asbestos litigation case. Spoor is currently representing more than 17 000 current and former mineworkers affected by silicosis in a class-action lawsuit launched against South African gold mines in December. He highlights the Asbestos Relief Trust as a model for precedence, which might pave the way for the ongoing fight to compensate silicotic mineworkers. Meanwhile, Da Cruz says the establishment of the ART has been a significant learning curve for the trustees, who have continuously developed the ART's policies and procedures to give effect to the primary objective of the trust deed -- to disperse compensation fully, fairly and as effectively as possible. One of the biggest challenges faced by the trustees in the last decade has been to ensure the availability of funds for the 25 years the trust has been in existence. The ART is, nevertheless, actuarially solvent, with a further R306-million -- inclusive of investment income -- available to provide for future claims likely to be lodged over the next 15 years. Further, should claims continue to be filed when the life of the trust reaches completion, the trustees will have the power to extend the life of the ART by another five years, provided it still has funds. Da Cruz tells Mining Weekly, however, that there has been a marked decrease in the number of claims received in each month. She says incoming claims peaked in 2005 and 2006, when the ART received an average of 300 applications a month. However, the number of claims began to decrease in 2007 and 2008. As a result, the trustees embarked on a claimant outreach programme to find potential claimants. "Owing to the migrant labour system, we know many workers hailed from neighbouring States, such as Lesotho, Swaziland and Botswana, and, because of this fairly aggressive campaign, we found other potential claimants, particularly in Lesotho," says Da Cruz. Currently, the ART is receiving between 10 and 12 new applications a month, some of which are filed by claimants who applied in earlier years but did not have a compensable asbestos- related disease at the time. Over the years, however, these claimants developed an ARD and are now eligible for compensation. Moreover, some claimants, who have already received compensation for an ARD, may have since developed cancer. Da Cruz says the trust makes provision for this and will accept an additional claim in such cases. She adds that most of the claims currently filtering in are for asbestos-related mesothelioma -- a rare but aggressive type of cancer affecting the membrane lining of the lungs and abdomen. Unfortunately, owing to the nature of this disease, most of these claimants will pass away within 12 to 18 months of diagnosis. While the ART has been able to provide compensatory relief for many victims of ARD, Da Cruz says working for the trust has been an emotionally draining job, as many claimants have died in the past ten years. "There are also many impoverished people in the community who the trust cannot help, as it is beyond our mandate," she adds. Da Cruz highlights several asbestos-related issues that need to be managed by government, including the establishment of a dedicated compensation fund for individuals who have developed ARDs as a result of environmental exposure to asbestos, but who do not qualify to claim from existing trusts, which cover only certain former asbestos mines. "These individuals currently have nowhere to turn to, unless the mining company responsible for the pollution can be brought to book," she says. Other issues include the need to rehabilitate primary and secondary sources of asbestos pollution and increase and improve medical surveillance for former asbestos miners and communities living in the vicinity of asbestos mines. Da Cruz also highlights the need for the State to improve education and disseminate more information about the dangers of asbestos. ASBESTOS UPDATE: Sarnia Park Partly Closed Due to Toxic Dusts ------------------------------------------------------------- CTV London reported that the City of Sarnia is closing a portion of Centennial Park to the public after soil samples taken in late April were found to contain asbestos. According to the report, in a statement, city manager Lloyd Fennell said "This process may take a while and the public's cooperation in staying out of the park is greatly appreciated." Until further tests can be done to determine the risks to the public, the city has decided to follow the recommendations of a consultant to close the park, the report related. According to the consultant areas where people can come into direct contact with soil, (areas with no vegetation) and where ground cover could be disturbed by activity are considered to be most 'at risk.' More samples have been sent to a lab specializing in soil containing asbestos to ensure there were no errors in the original results. Previous samples from other areas of the park are also being re-tested. The city says it is working with the organizers of affected events to find alternate venues. The Dow People Place remains open and the city says it will try to keep the waterfront walkway open where possible. An area of the park had already been closed earlier in May after high levels of lead were found in the soil. ASBESTOS UPDATE: 7 Countries Block Moves to Limit Fibro Shipping ---------------------------------------------------------------- Tim Povtak, writing for Asbestos.com, reported that the Canadian government finally stopped defending the chrysotile asbestos industry, but seven other countries took its place at the United Nations' Rotterdam Convention Conference, blocking all attempts to put the toxic mineral on a hazardous substances list. According to the report, it was the fourth time the effort to tighten the worldwide shipping regulations of asbestos failed, but the first when Canada was not stopping the move. Russia, Zimbabwe, Kazakhstan, India, Kyrgyzstan, Vietnam and Ukraine all opposed the listing, while Canada remained neutral for the first time, the report noted. Canada was the last Western power to stop endorsing the use of asbestos worldwide, prompted by public pressure and the closing of its last asbestos mine in 2012. Although an overwhelming majority of the 143 countries attending the conference favored adding chrysotile asbestos to the hazardous substances list, protocol requires unanimous agreement. The convention, according to the report, does not ban the trading of hazardous substances, but it makes the exportation more difficult by requiring Prior Informed Consent (PIC) before they are shipped. The PIC allows still-developing countries the right to refuse the shipment, or at least be better prepared for the danger it presents. Russia Leads in Asbestos Production Chrysotile has been the most prevalent of the six types of asbestos, but is the only one not on the PIC list. Its extensive use has continued in many still-developing countries, which covet its cost effectiveness, despite its well-known dangers. It also is financially rewarding for the major producers and exporters. Russia produced approximately 1 million tons of asbestos in 2012, which was more than double the amount produced in China, the second largest producer. This was the first time Russia has been represented at the Rotterdam Convention Conference. It also was the first appearance for Zimbabwe, which is expected to reopen its asbestos mines later this year. At the last conference in 2011, the Canadian delegation worked behind the scenes to block the hazardous substance listing, which sparked a public outcry within the country and a change in policy. Asbestos is the naturally occurring mineral that was used so extensively through much of the 20th century for its ability to insulate, fireproof and strengthen most everything. It also has been proven to cause mesothelioma, lung cancer, asbestosis and a variety of other respiratory diseases. Every year, an estimated 10,000 people in the United States die from an asbestos-related disease and more than 100,000 die around the world. Neither the United States nor Canada has banned the use of asbestos, but both countries strictly regulate its use internally. Asbestos use in the United States peaked in the mid-'70s and has fallen dramatically in the past four decades. Mesothelioma Not Declining Because there is such a long latency period (10-50 years) between exposure to asbestos and mesothelioma development, an estimated 3,000 Americans each year still are diagnosed with the disease, which has no cure. "I'm upset that countries that continue to produce chrysotile, or are considering reopening mines like Zimbabwe, can block action on chrysotile," said Ken Rosenman, M.D., chief of the Division of Occupational and Environmental Medicine at Michigan State University. "This will prolong the hazards of asbestos, and cause health risks again in the future. It will continue to lead to a double standard for health because the more developed countries are not using asbestos now." The news produced outrage among the asbestos awareness groups around the world, many of which had believed Canada's switch had weakened the defense of the asbestos industry. And, like Rosenman told Asbestos.com, the still-developing countries using asbestos will face bigger problems in the future. "Tyrannical forces have [] seized control of the Rotterdam Convention; the United Nations protocol which was born in hope, has today been buried in ignominy," wrote Laurie Kazan-Allen, coordinator of International Ban Asbestos Secretariat. "The Convention's impotence allows the status quo to continue. The global trade in deadly asbestos will remain unregulated." Kazan-Allen now refers to the countries that blocked the listing as "The Dirty Seven." ASBESTOS UPDATE: Planned Lordswood Depot "Too Close" to Houses -------------------------------------------------------------- BBC News Kent reported that residents opposed to plans to turn part of a waste site in Medway into a depot which would handle asbestos waste have voiced their anger at a public meeting. According to the report, Asbestos First wants to turn part of its land in Lordswood into a waste transfer station with asbestos being temporarily stored in locked skips. The asbestos removal company said the skips would be sealed and kept under 24-hour surveillance. Opponents claim "a hazardous operation" should not be in a residential area, the report related. 'Fibrous asbestos' The proposed site off North Dane Way is close to a housing estate and is adjacent to the Lordswood sports and leisure centre. Local resident Ian McKeand, whose father died of mesothelioma -- the cancer associated with asbestos, was at the public meeting at the Bridgewood Manor Hotel, in Chatham, the report said. "We don't know what state the asbestos is going to be in," he said. "If the bags are ripped before they get there, there could be fibrous asbestos coming from these vehicles before it's actually bagged correctly and taken off site." Safety record Deputy leader of Medway Council, Alan Jarratt, whose ward includes the site, added: "If it becomes a transfer station it will become a focal point for every cowboy builder in the area potentially, and that's one of the big worries." Asbestos First said it had been handling asbestos safely for 25 years. It withdrew an earlier planning application to allow for a public consultation, but said it now planned to resubmit it to the council. Managing director Debbie Hales said: "We are planning on adding a waste transfer station to our current site in Lordswood so that we can simply transfer waste from our vans, and the waste containers within them, into sealed lockable skips. "I don't want the vans having to travel up and down to the landfill site on a daily basis. Environmentally it's not the most sensible thing to do." ASBESTOS UPDATE: Ugandans At Risk of Cancer Due to Roofing ---------------------------------------------------------- Flavia Lanyero, writing for Daily Monitor, reported that in Kampala and several parts of the country, you will not miss to find a building with asbestos roofs. A quick survey will see fingers pointed at schools such as Makerere College School, Kibuli Secondary School, Kololo SS, Kyambogo College School, Nabisunsa Girls School and Mengo SS. In the countryside, you will meet the roofs in schools such as Kigezi High and Ndejje SS and a number of technical colleges, police and army barracks' among others. Most of such buildings were constructed between the 1950s and 1960s and efforts by the Ministry of Health calling on such schools and police authorities to change the roofs, have often fallen on deaf ears, the report said. According to experts, materials containing asbestos are hazardous to humans and pose a public health risk. Dr Gerald Mutungi, the in-charge of non-communicable diseases at the Ministry of Health, says all forms of asbestos are carcinogenic to humans -- meaning that they can cause different cancers. Among the cancers Dr Mutungi mentions, include cancers of the ovary, lung, mesothelioma and cancer of the larynx. He adds that exposure to asbestos also causes breathing complications and respiratory tract infections. Medical reports indicate that a person who is exposed to broken asbestos faces a higher risk of developing such ailments. Impact on children According to Dr Mutungi, effects of exposure to asbestos may not show in the short term but could take 10-20 years and at which point, the disease may become untreatable. "Students have no danger by just sitting in class but once the asbestos is disturbed and broken, inhalable fibres are released and this is dangerous," Dr Mutungi says. "Anything can happen to a school or any building so we have over the years been giving the Ministry of Education guidance to replace the asbestos with iron sheets." School authorities say they have often expressed worry about the wellbeing of their students and inefficiency of the Ministry of Education to remove the asbestos roofs. An administrator at Kololo SSS, who preferred to speak on condition of anonymity because of the sensitivity of the matter, said the parliamentary Public Accounts Committee, visited the school early last year to see if the asbestos roofs were removed but despite confirming that the roofs were still there, no further action was since taken. Although the roofs were still intact, the administrator wondered whether the ministry first wanted to see a catastrophic incident before taking action. In many barracks, police officers are housed in asbestos-roofed houses, although they are condemned by the International Labour Organisation (ILO) convention 162, 1986, which provides for the replacement of asbestos or certain types of asbestos or products containing asbestos with other materials or products evaluated as less harmful. In 2003, former Police Boss Katumba Wamala launched a process to rid all police houses of asbestos roofed-houses. The project was, however, only implemented in a few barracks around Kampala. Deputy Police Spokesperson Patrick Onyango says the police are constrained by finances and only those in Arua Police Barracks have been replaced. The commissioner in-charge of planning at the Ministry of Education, Mr Godfrey Dhatemwa, says currently there is no plan to un-roof asbestos from schools because it would take a while for the asbestos to be removed yet there is no money for the exercise. This means that schools will have to endure asbestos roofs for a while longer. The World Health Organisation (WHO) recommends that countries take public health actions, including replacing asbestos with safer substitutes to prevent diseases. ASBESTOS UPDATE: Top French Politician Cleared Over Fibro --------------------------------------------------------- Sky News reported that a leading French politician has been cleared on appeal of a manslaughter charge connected with thousands of deaths caused by exposure to asbestos. The court's decision on Martine Aubry, who led the ruling Socialist party before the court proceedings, clears the way for her to return to top-level politics. The politician -- who had stood against Francois Holland in the primary to become the party's presidential candidate last year on a slightly more left-wing platform -- is now free to bid for a seat in his government. "The courts today recognised that no fault or negligence could be attributed to me," Ms Aubry, who is currently the mayor of the northern city of Lille, said in a statement. "Everybody knows that I have always acted as an official and as a minister to defend and reinforce the rights of workers and protect them from occupational hazards." The case against Ms Aubry relates to her time as a senior official in the ministry of social affairs, before she became a major figure in French politics. As the ministry's director of industrial relations from 1984-87, Ms Aubry is accused of having helped to delay the implementation in France of a 1983 EU directive designed to strengthen the protection of workers dealing with asbestos. The examining judge in the case said Ms Aubry had bowed to pressure from industrialists lobbying against a complete ban on the use of the material and that she ignored warnings from French health authorities of a mushrooming epidemic of cancers and terminal lung diseases. Ms Aubry, the daughter of former European Commission President Jacques Delors, was one of many figures caught up in a far- reaching probe into how the French authorities handled the emerging evidence of the dangers posed by asbestos between 1970 and 1997, when the material was finally banned. The specific charges against her related to the case of workers employed at the Fereo-Valeo auto-components factory in Normandy. Asbestos was once widely used for car brake pads. An estimated 3,000 people die prematurely every year in France as a result of asbestos poisoning and there have been predictions that the death rate could nearly treble over the next decade because of exposure in the 70s and 80s. ASBESTOS UPDATE: Bassetlaw Residents Angered Over Fibro Dump ------------------------------------------------------------ Worksop Guardian reported that residents and council officers were left appalled after asbestos was left dumped by the side of the road. According to the report, just one week after Bassetlaw Council announced that it would actively seek to prosecute fly-tippers, a Worksop Guardian reader contacted the newspaper to report a waste dump on Red Lane in Carlton Forest. A specialist team were sent by the council to the site, where they discovered a number of broken asbestos sheets amongst bags of household rubbish, the report said. The environmental health team were able to find address details to trace some of the waste, and will issue a fixed penalty notice shortly. Julie Leigh, portfolio holder for environment and leisure, said: "Fly-tipping is unacceptable and in this latest case, very dangerous. I am appalled that people think they can get away with leaving asbestos at the side of the road and feel they can dump waste with impunity." "We all have a responsibility to keep Bassetlaw clean and tidy and I would urge anybody who spots fly-tippers to call the council's hotline. Fly-tipping is a problem and we need your help to gather evidence which can lead to a prosecution or serve fixed penalty notices." In the last year Bassetlaw Council spent around GBP60,000 cleaning up almost 900 fly-tipping incidents, 35 involving asbestos. Fly-tipping carries a fine of up to GBP50,000 and 12 months' imprisonment if convicted in magistrates' court, and an unlimited fine and up to five years' imprisonment if in crown court. To report fly-tipping, call the hotline on 01909 534501 ASBESTOS UPDATE: MP's Fury at Insurers Over Asbestos ---------------------------------------------------- The Shields Gazette reported that insurance industry "leeches" are avoiding paying millions of pounds to victims of a deadly dust, Jarrow MP Stephen Hepburn claimed. According to the report, speaking during Prime Minister's Questions in Parliament, Mr Hepburn accused the Government of pandering to the insurers, rather than helping those suffering from terminal condition mesothelioma, caused by exposure to asbestos fibres. The disease is rife in former heavy industrial areas, such as South Tyneside, the report said. His comments follow details of the new Mesothelioma Bill, announced in the Queen's Speech. Under the legislation, asbestos victims can submit claims, even if their former insurer or employer has gone out of business. But only those diagnosed with the killer disease after July 25 last year can make a claim, and Mr Hepburn says this means many victims will get "nothing." In reply, Deputy Prime Minister Nick Clegg said the date is the only way victims could have a "reasonable expectation" of being compensated. But Mr Hepburn said: "Does the Deputy Prime Minister agree with me that it's wrong and unfair that those leeches in the insurance industry who are bankrolling the Tory party are getting away with millions and millions, when working-class people who have been negligently poisoned by their employers are getting away with nothing?" In reply, Mr Clegg said he was "hugely sympathetic" to those victims unable to trace their former insurer or employer, but added: "We did announce our intention to introduce the scheme on July 25, 2012, and it is from that date people have a reasonable expectation, if they are diagnosed with asbestos-related cancer and meet the eligibility criteria, to receive a payment. "But because we have also decided to pay dependants of people who have died with that cancer, the scheme will not be able to pay dependants of every person who has died and that is the reason we have taken the approach that we have." ASBESTOS UPDATE: Canberra Family Exposed to Deadly Asbestos ----------------------------------------------------------- Tom McIlroy, writing for The Canberra Times, reported that WorkSafe ACT will refer a Canberra builder to the Director of Public Prosecutions after workers put a Kambah family at risk of asbestos-related illnesses. According to the report, parents Justin and Erin Thompson were forced to leave their home for more than three weeks after builders used angle grinders to cut through asbestos sheeting during bathroom renovations, contaminating the family's home. "Our neighbour came over and told us he thought there was asbestos being placed out the front of our house," Mr Thompson told the news agency. "He confronted the builder and the guy told him he didn't know what he was talking about, so our neighbour called WorkSafe and they tested it and confirmed it was very dangerous." Along with their five-year-old son and three-year-old daughter, the couple lived in the home during renovations, with Ms Thompson cleaning toxic fibres from surfaces in the kitchen and living area. Despite assurances from the builder that the asbestos "was not the dangerous kind", the family will require ongoing annual medical tests for life-threatening illnesses, including mesothelioma. Mr Thompson said a $6000 deposit paid to the builder had not been returned, and the work he had completed on site was "shoddy, dangerous and appalling". With their bathroom still incomplete, the family has been forced to use a makeshift outdoor bathroom until their replacement builders can complete the renovation. More than 120 personal items, including dozens of contaminated children's toys, had to be destroyed by authorities to prevent further risk to the family. Fairfax Media sought comment from the builder on Friday night but did not receive a response. The company website says it has a reputation for success and has achieved commercial recognition and membership in the Housing Industry Association of Australia. WorkSafe ACT Commissioner Mark McCabe said three prohibition notices, two improvement notices and two infringements had been issued to the company. "There is no such thing as asbestos which is not dangerous so this is very concerning, especially coming from an established company who members of the public would assume they can trust," he said. "We are treating this case very seriously and my advice for anyone worried about what work is being undertaken at their home is to immediately contact ACT Planning and Land Authority or WorkSafe and we will investigate." NSW Electrical Trades Union assistant secretary Neville Betts said the case was one of the most extreme he had seen. "The poor buggers sat through three days of asbestos risk because of the dodgy builder," he said. "I have had a quick chat to some other union members and we have asked the family to give us a list of the children's toys so we can replace them." The couple said they were touched by offers of assistance but did not wish to receive donations. ASBESTOS UPDATE: Exhibit of Asbestos History in McLean County ------------------------------------------------------------- Mary Ann Ford, writing for Pantagraph, reported that Ron Thacker only worked at Bloomington's UNARCO plant for a couple of years as a young man in the early 1950s, but it left an indelible imprint on his life -- and his lungs. According to the report, Thacker, now 77, is among more than 100 workers who contracted asbestosis, an incurable lung disease, from the asbestos used at the factory to make insulation for such things as pipes and boilers. "I used to grind this stuff with a grinder," he told the news agency, adding the company knew asbestos was deadly, but that fact was never revealed to workers. "Every year we had to go in for a chest X-ray," he said. "I thought they had our good in mind." Instead, the company used the X-rays to determine whether workers had the beginning stages of asbestosis. If the X-ray revealed a spot on the lungs, the company "would find a reason to let you go," said Thacker, who is working with others on a new exhibit at the McLean County Museum of History detailing UNARCO's history in Bloomington, and the long-reaching effects of asbestos. The company, first known as the Union Asbestos & Rubber Co, relocated from Cicero to Bloomington in 1951. UNARCO was purchased by Owens-Corning in 1970, and the plant closed two years later. UNARCO filed for bankruptcy in 1982 and the plant, at 1111 W. Perry St., was razed in 1991. Dozens of lawsuits have been filed over the years by victims and survivors of workers exposed when they worked at the plant; in almost every case, juries sided with the victims, finding that workers were not warned of the dangers of asbestos when they worked at the factory. Jury awards totaled in the tens of millions of dollars. While Thacker didn't see any effects of the disease until 2007, when he was hospitalized for what was thought to be pneumonia but actually was asbestosis, his brother, Leslie, who worked at the plant for eight years, died from an advanced form of the disease in 1981 at age 49. Their father, Charles Thacker, who also worked at the plant for several years, died of the disease at 71 in 1977, said Ron Thacker. "Do I sound angry? You bet. I can't stand somebody doing something shady," said Thacker, who became a minister, most recently at Danvers Baptist Church. Mike Matejka, director of government affairs for Great Plains Laborers District Council, is guest curator for the exhibit, A Deadly Deception: The Asbestos Tragedy in McLean County, scheduled to open in 2015. He's been working on the project for three years. One component of the exhibit will be a memorial to people who died after exposure to the asbestos used at the plant -- either those who worked there, family members exposed when plant workers came home with the asbestos fibers on their clothing, or workers who used products made at the plant, said Susan Hartzold, the museum's curator. "We don't want just a list of names," said Hartzold. "These are people. They died because the company thought of the bottom line." Hartzold wants to make 8-by-10 collages of each person and create collage books to include in the exhibit. "We have 104 people on the list," she said. "But I'm sure there are hundreds more." The exhibit also will include a history of asbestos; information about the extensive list of products that contained the material; a history of UNARCO; information about the lawsuits filed by victims and/or their families; and a look at the process to remove asbestos. "It's a catastrophe that didn't happen just one day; there have been multiple slow deaths over decades of intensive suffering," said Matejka. "This exhibit is important to remind ourselves . . . to honor the workers and families; to look at the larger social questions . . . to ask what's still going on out there now with the emerging technology . . ." Thacker believes his strong faith in God is why he's still around, saying, "He had another plan for me." Thacker was in and out of the hospital several times in 2007 and saw his condition worsen -- much like what happened to his brother. On the 12th day of his last hospital stay that year, he said a prayer: "I said, 'Lord, I'm not scared of dying but if you stop this, I'll tell everyone who did it.'" Thacker was not hospitalized again until recently, but he's back on his feet again. ASBESTOS UPDATE: Fixing Hakea Prison's Asbestos to Cost $2.5MM -------------------------------------------------------------- Beatrice Thomas, writing for The West Australian, reported that fixing asbestos contamination at Hakea Prison will cost taxpayers $2.5 million after a damning report found it posed high health risks to staff, prisoners and the public. According to the report, the hazardous materials assessment report, obtained by the State Opposition, found materials containing asbestos in the ceiling spaces of all seven blocks inspected by consultant SW19 over two weeks in March. It said the risk of disturbance in all areas was medium to high, with the risk of exposure also medium to high in all but one ceiling space, the report related. Medium risk was described as asbestos materials that posed "an increased risk to personnel or the general public". The report found in blocks 1,2,3,4,6,7 and the administration block a "friable" asbestos, which over time becomes a powder form. It recommended in all cases that it be eliminated. The Department of Corrective Services said it was evaluating tenders and expected the work to cost about $2.5 million and be carried out "as soon and as safely as practicable". However, Asbestos Diseases Society president Robert Vojakovic said normal building vibrations could disturb and distribute friable asbestos and called on the affected blocks to be immediately closed. "This material must be removed as soon as possible," he said. "If there is a risk, this area must be immediately barricaded." Prison officers union secretary John Welch said that he had asked the department to analyse the asbestos. "Generally our members are very worried about the recognition of friable asbestos," he said. Shadow corrective services minister Paul Papalia said a register should be established of prison officers and prisoners exposed or potentially exposed to asbestos, and baseline health checks done. He said Corrective Services Minister Joe Francis' "off-hand" response last month -- when it emerged WorkSafe had issued his department with orders to fix the hazards -- was inappropriate. Mr Francis said at the time it was not "rocket science" and works would be done when juveniles being housed at Hakea after a January riot at Banksia Hill detention centre were moved back. He said this week WorkSafe had assessed the asbestos as being stable enough to grant the department an extension to rectify the situation. ASBESTOS UPDATE: Asbestos, A Killer 40 Years Later -------------------------------------------------- Heidi Turner, writing for Lawyers and Settlements, reported that anyone who has lived with someone with mesothelioma or asbestosis will tell you that such diseases, caused by asbestos exposure, are horrific and painful for their victims. Unfortunately for victims, exposure to asbestos fibers 40 years ago can result in such fatal conditions today. And it is not just the people who worked directly with asbestos that are at risk. According to the report, a lawsuit filed in New Orleans, and reported by The Louisiana Record, alleges that a woman was exposed to asbestos and developed mesothelioma because her husband worked with the material and brought it home on his clothing. The lawsuit (case no. 2013-02388) claims the defendants knew about the hazards associated with asbestos but did not warn employees of the danger to them or the danger to their family members because the asbestos can be carried on clothing. Family members who were exposed to asbestos because their loved ones worked with the material have an increased risk of developing serious, life-threatening conditions as a result, the report said. They had no idea they were being exposed to such a serious toxin, or that the toxin could cause devastating illness decades after the exposure. Lawsuits against companies accused of not properly protecting their employees are prevalent in the courts, with new lawsuits frequently being filed. Many such lawsuits involve long lists of defendants, as some employees worked for a variety of companies during their asbestos exposure. Unfortunately for some employees, some employers may have allowed their workers to be exposed to asbestos simply to save some money, and such activities may still be occurring today. An article in Surrey Now in British Columbia claims that many business owners put employees, especially young employees, at risk of asbestos exposure to save money. Although the article is from Canada, it is reasonable to assume that business owners in the US would do the same, especially with some receiving penalties for doing exactly that. According to the article, buildings constructed before 1984 could contain a lot of asbestos. Employees responsible for the demolition of those buildings can be protected from asbestos exposure if they are given proper safety gear and procedures for handling and disposing of the material, but doing so costs developers more money. The cheaper solution is to pretend there is no asbestos in the building and not provide safety gear and training for employees. That puts employees at risk of facing a horrific disease, decades after they were exposed to the toxin. ASBESTOS UPDATE: Judge Takes 2 Years to Decide in Dumping Case -------------------------------------------------------------- Natalie O'Brien, writing for The Sydney Morning Herald, reported that a Sydney judge has taken more than two years to make a decision in a case against the founder of the Clean Up Israel environmental campaign, who has been accused of causing land and water pollution by allegedly dumping asbestos-contaminated waste on his property in Wollondilly. According to the report, Justice Rachel Pepper from the Land and Environment Court has acknowledged the delay in the case against Phillip Foxman and his company Foxman Environmental Development Services was "unacceptable and regrettable". But it has also been revealed that the delay has affected other prosecutions relating to the incident and stalled any development or clean-up on the site since the alleged dumping in 2010. The Land and Environment Court said it aimed to deliver most reserved judgments within three months, the report said. "However, competing demands, complex cases and judicial leave can sometimes make this deadline unattainable," it said. Justice Pepper reserved her decision in the matter after eight days of hearings in February and March 2011. Inspired by the Clean Up Australia campaign, Mr Foxman gained international recognition when he founded Clean Up Israel in the wake of the collapse of the bridge over the polluted Yarkon River during the Maccabiah Games in 1997. Four Australian athletes died and more than 70 others were injured. But Mr Foxman and his company were then accused of dumping up to 35,000 tonnes of soil contaminated with pieces of asbestos on a property at Wollondilly where he was constructing several buildings. Mr Foxman defended the action and said last week the delay had had an enormous effect on him and his business and it was "extraordinary and unjust to have to wait so long". "I have had no way of clearing my name and that has had a devastating effect," he said. "It is a horrible situation ? I have not been able to put a shovel in the ground for three years." Mr Foxman denied illegally dumping waste on the site, saying he had development approval to build on the site on Evelyns Range Road and had transported soil to be used that had been through a recycled screening process. ASBESTOS UPDATE: Firm Build Execs Plead No Contest in Fibro Case ---------------------------------------------------------------- Victor A. Patton, writing for Merced Sun-Star, reported that the state criminal case against three former executives of the defunct nonprofit Firm Build culminated with the trio pleading no contest to felony charges of exposing high school students to cancer- causing asbestos. According to the report, the plea agreement was reached with Rudy Buendia III, 50, Patrick Bowman, 46, and Joseph Cuellar, 73. They pleaded no contest to felony treating, handling or disposing of asbestos in a manner which caused an unreasonable risk of serious injury to the nine students, with knowing or reckless disregard for the risk, the report said. All three also pleaded no contest to illegally diverting construction funds. In addition, Cuellar pleaded no contest to felony failure to pay payroll taxes, while Buendia entered a plea of no contest to felony worker's compensation violations. They're scheduled to be sentenced by Merced County Superior Court Judge John Kirihara on July 12 to three years and eight months in prison. With sentencing credits, they're eligible to serve about half of that time in prison. In March, the defendants were convicted on federal charges of violating asbestos laws. They're due to be sentenced on the federal charges by Judge Lawrence J. O'Neill on June 3. They each face between 24 and 27 months in federal prison. Under the terms of the plea agreement with Merced County prosecutors, the trio will serve the state and federal sentences at the same time, which means they will spend about two years in prison, authorities said. Merced County District Attorney Larry Morse II said he was pleased with the outcome. Morse praised his staff's work on the Firm Build investigation, launched by his office six years ago. The case was prosecuted by Deputy District Attorney Walter Wall and Deputy Attorney General Brett Morris. "We feel very vindicated by the nature of these pleas," Morse said. "We believe it validates everything we've said and done for the last several years." Morse said his thoughts are with the students who were exposed to asbestos in the case, saying that he hopes they will be adequately cared for, should they develop health problems because of the exposure. "Because these were 'at-risk' kids, they were not deemed as worthy of the protection that should have been afforded them in a school program," Morse said. Defense attorneys Kirk McAllister, Ralph Temple and Douglas Foster, who represent Buendia, Bowman and Cuellar respectively, all declined comment after the hearing. The defendants were in key oversight positions with Firm Build. They were accused of cutting corners on a renovation project by using at least nine high school vocational students to remove asbestos from the Automotive Training Center at Castle Commerce Center from September 2005 to March 2006. According to court documents, the students and others removed and disposed of about 1,000 linear feet of pipe insulation and additional tank insulation at the 2245 Jetstream Drive building in Atwater -- which the defendants knew contained asbestos. The students, according to the documents, removed the cancer- causing substance without proper protective equipment or taking proper safety measures. When the incident occurred, Bowman was Firm Build's board president and coordinator of the Workplace Learning Academy, which was created at the Valley Community School to teach trade skills to at-risk students. Buendia was Firm Build's project manager, and scouted and determined the nonprofit's projects. Cuellar was an administrative manager who had the contractor license that Firm Build used to find grant funding, procure contracts and pull permits for projects, according to investigators. ASBESTOS UPDATE: Fraud Makes Asbestos Illness Situation Worse ------------------------------------------------------------- A letter to The Wall Street Journal from Joan Claybrook, president of Public Citizen 1982-2009 and head of the National Highway Traffic Safety Administration 1977-1981, said fraud makes asbestos illness situation worse. Ms. Claybrook wrote, "Your extensive coverage of asbestos highlighting fraud in the trusts created by Congress to limit the liability of asbestos companies after they exposed millions of workers to the deadly toxin, misses the point. Neither the Journal nor independent studies have documented significant fraud. The trusts were created to compensate victims while enabling companies to use the bankruptcy law to shed total liability in exchange for partial payment to victims and to continue as viable companies. But hundreds of thousands of their victims weren't so lucky. They are dead. Many more are sick and suffering. Ten thousand more will die this year. They were never told asbestos was deadly. Although the asbestos companies concealed the deadly nature of their products for decades, they also have a history of trying to limit or eliminate payments for the deaths they caused. The latest attempt is the so-called FACT Act (Furthering Asbestos Claim Transparency, H.R. 982). It requires the trusts to publicly reveal extensive personal information about the victims and allows asbestos defendants to demand any additional information from the trusts back to any claim ever filed and paid. This could delay medical bill payments until the victims die (mesothelioma victims usually die within four to 18 months of diagnosis), saving hundreds of millions of dollars for the companies but victimizing the asbestos victims once again. What's wrong with this picture? Lots. There is no evidence to support assertions of significant fraud in claims by asbestos victims. Human error in data entry is not fraud. Out of millions of claims filed at the company asbestos trusts, the Journal's extensive investigation identified an error and anomaly rate of only 0.35%, much of that due to mistakes by the trusts, not the victims. The GAO conducted studies of fraud in the handling of asbestos claims to the trusts and found none. Asbestos victims who suffer horrible deaths are often grossly undercompensated, receiving only a small percentage of what the companies owe them. According to the RAND Institute, the median payment is 25%, but some are paid as little as 1.1%, placing huge burdens on their families. Asbestos victims have not been allowed to publicly testify during the recent House Judiciary Subcommittee hearings on H. R. 982 after the industry urged the committee to require so-called transparency in claims to the trusts. Some transparency! Americans continue to be exposed to asbestos. The U.S. is one of only two industrialized countries that have not banned asbestos imports, assuring more claims. The bottom line is that compared with the huge coverup by cruel asbestos companies indifferent to so many tragic deaths, a rare example of fraud in asbestos claims is an anthill versus a nuclear explosion. The pending industry legislation would invite invasions of privacy and exposure of claimants to potential identity theft and other criminal mischief. It is just another ploy by the companies to avoid paying their debt to those they harmed." ASBESTOS UPDATE: Plea for Info After Sheffield Man's Death ---------------------------------------------------------- Richard Blackledge, writing for The Star, reported that the partner of a Sheffield man who died from asbestos-related cancer is appealing for help about how he breathed in the deadly dust. According to the report, Keith Furniss, from Walkley, died nearly two years ago aged 72, just a month after his diagnosis. He told his partner Glenis he remembered working with asbestos during his career at steelworks Jessop-Saville and at Sheffield Corporation, the report related. Glenis, 57, has now instructed specialist lawyers at legal firm Irwin Mitchell, who are seeking information about the working conditions at the two sites, the report said. She said: "We were absolutely devastated when doctors said Keith was suffering from mesothelioma and that he had just a few weeks left. "I don't think I'll ever get over his life being cut short so suddenly in such a terrible way. "I've lost my soul mate to this illness and that's why I'm determined to find out more about how he came to be exposed to asbestos and why." Simone Hardy, from Irwin Mitchell's Sheffield office, said: "Unfortunately, we know very little about the roles Keith did. "However, we hope that his former colleagues can help shed some light on the working conditions he endured and the asbestos exposure that ultimately led to his death. "Mesothelioma is an aggressive and incurable cancer and causes so much distress to victims like Keith and their families. "Sadly, many employers did not do enough to manage the risks of asbestos exposure despite knowing how dangerous it is. "People have the right to work in a safe environment without the risk of illness. "We hope that our investigations can finally help Glenis obtain the justice that she deserves in Keith's memory." Keith first showed the effects of mesothelioma around Christmas 2010, complaining of flu-like symptoms. He twice needed to have fluid drained from his lungs, and was diagnosed in summer 2011, dying just one day after being admitted to St Luke's Hospice in Whirlow. An inquest last year found he was a victim of asbestos exposure. Anyone with information about how Keith came into contact with asbestos is asked to email simone.hardy@irwinmitchell.com or call 0114 2744420. ASBESTOS UPDATE: Australian Gov't.'s $10.5MM Safety Plan Welcomed ----------------------------------------------------------------- Jessica Chambers, writing for Latrobe Valley Express, reported that a national plan to protect Australians from asbestos-related diseases has been cautiously welcomed by Gippsland's asbestos support group as the Federal Government announces funding. According to the report, the Federal Government's recently announced budget showed $10.5 million would be allocated over the next four years to establish an Asbestos Safety and Eradication Agency, which should be running in July. Gippsland Asbestos Related Disease Support chief executive Vicki Hamilton said while she was glad the much-needed agency would be established, she thought there should be more money put into it, the report related. "Good on them for taking the initiative, but we need to see a lot more money allocated to it, now and into the future," Ms Hamilton said. "If you're going to be fair dinkum about this and address this problem in a serious way there's got to be some serious money put into it." Ms Hamilton said her joy at the establishment of the agency had been tempered by uncertainty at how much money a Coalition Government would allocate to it, if it was elected in September, despite the bill receiving bi-partisan support, and is expected to pass later this year. "I'm hoping that if the opposition get into power after September that they will remember that they were supporting the asbestos eradication agency," Ms Hamilton said. A spokesperson for Employment and Workplace Relations Shadow Minister Senator Eric Abetz said the opposition was "most supportive" of the agency. "(Opposition leader) Tony (Abbott) made it very clear . . . that we are happy to commit to the same funding that Labor has agreed to in the budget and that's what we'll be doing," the spokesperson said. According to a statement from Workplace Relations Minister Bill Shorten, one of the first tasks for the ASEA would be tackling illegal dumping and encouraging safe disposal of asbestos and planning the removal of asbestos containing material from government and commercial buildings. The establishment of an independent national agency was a key recommendation of the Asbestos Management Review of 2010. ASBESTOS UPDATE: Sunshine Coast Fibro Disposal Rules Coming ----------------------------------------------------------- John Gleeson, writing for Coast Reporter, reported that the Sunshine Coast Regional District is developing new rules for the screening and handling of asbestos in landfills. According to the news agency, a staff report presented earlier this month to the infrastructure services committee recommended adding six new material types to the list for asbestos screening -- vinyl floor tile, sheet vinyl flooring with paper backing, ceiling tiles, stucco, roofing and cement panels (used in fireproofing). Asbestos screening procedures currently exist only for drywall and vermiculite. On May 9, the SCRD board adopted the proposed changes, setting an implementation date of Jan. 1, 2014, the report related. The added materials will mean changing landfill acceptance procedures, environmental technician Beth Brooks reported to the committee. "The identified materials will require sampling documentation for disposal," Brooks said. "If the material contains asbestos, customers will be able to bring the material to the Sechelt landfill provided they follow the asbestos disposal and acceptance procedures (double bagged using 6 mil plastic, 24-hour notice) and pay the associated tipping fee." Asbestos-contaminated drywall, she noted, is not accepted at SCRD landfill sites. Also under the new system, due to airspace requirements the Pender Harbour landfill will no longer accept asbestos waste effective Jan. 1, 2014. Procedural changes earmarked for the Sechelt landfill include installing a new camera at the weigh scale and creating an asbestos waste cell to receive the materials. The landfill will also establish set times and days for asbestos disposal. SCRD staff is collaborating on changes to the building permit process that will identify renovation and demolition projects that have asbestos-containing materials. An education campaign will also be undertaken. Given the new acceptance requirements and the increase in tipping fees for residential waste, more illegal dumping should be expected, Brooks said. The board agreed to amend the landfill site bylaw to include an offence for the undisclosed disposal of controlled or asbestos waste at landfill sites. However, a staff recommendation to include penalties under the adjudicator-based bylaw enforcement notification (BEN) system was put on hold until the BC Civil Liberties Association responds to the board's request for an opinion on the BEN system. Staff was also asked to report back on how the existing BEN system pilot program has been working for the SCRD -- specifically on how complaints of disputed tickets are dealt with -- and to include statistics from the District of Sechelt and Town of Gibsons in the analysis. ASBESTOS UPDATE: Widow Fights for Justice Over Fibro Exposure ------------------------------------------------------------- Samantha Lewis, writing for The Herts Advertiser, reported that Charles Baker, 72, died in January from a cancer of the lining of the lungs caused by inhaling asbestos dust allegedly while working at TA King and Son, in Sandridge Road, St Albans. According to the report, he passed away just nine months after being diagnosed with the disease and now his wife Shirley Baker is appealing to his former work mates to confirm he was exposed to the dangerous fibre between 1955 and 1966. She said: "His job meant he came into contact with asbestos every day and it was dirty and dusty work. He said he was never warned about how dangerous asbestos could be to his health or given any protective clothing or a mask to wear to protect him from the worst of it. "He worked with so many different people and in such a variety of well known buildings in St Albans and Hertfordshire that I'm sure there are people out there who can help me honour his memory." Mr Baker was a grandfather of two and was living in Lowestoft in Suffolk when he fell ill in 2011 complaining of chest pains, the report related. Initial tests failed to flag up any problems but following further investigations he was diagnosed with mesothelioma in May last year. After his death Mrs Baker, who was married to her husband for 47 years, contacted lawyers at Irwin Mitchell's to help her find out whether TA King and Son could have done more to protect him from asbestos exposure, the report said. According to the devastated widow he told her during his 10-year career at the firm he regularly came into contact with asbestos and would either have to chip off old asbestos lagging with a hammer or chisel or mix new asbestos paste to lag boilers and pipes. She added he particularly recalled working at St Michael's Manor, Hill End Psychiatric Hospital, St Albans Abbey and St Albans City Hospital. Mrs Baker went on: "It's been really hard to come to terms with losing Charles to such an awful illness and so soon after he was diagnosed. Just a year earlier he had been given the all-clear after suffering from prostate cancer, so it was a terrible blow to learn he was so sick again and he was unlikely to have long left. "His illness meant he was in pain and discomfort all the time; he was tired and short of breath and the chemotherapy really knocked him for six. "He was also upset that he wasn't well enough to do the gardening and help me round the house as he used to." Anyone with information is asked to contact Simone Hardy at Irwin Mitchell's on 0114 2744420 or email simone.hardy@irwinmitchell.com ASBESTOS UPDATE: Family of Asbestos Victim Pleas for Justice ------------------------------------------------------------ Thurrock Gazette reported that the devastated family of a carpenter who died of an asbestos-related disease have launched an emotional appeal for justice. According to the report, grandfather-of-two John Hammond was allegedly exposed to the deadly dust when working for West Thurrock-based Tunnel Portland Cement Company from 1962 to 1966 and 1969 to 1975, by which time it was called Tunnel Cement Limited. There was a Tunnel Asbestos factory on the site which manufactured asbestos products, the report related. A railroad went through the site and locomotives pulled trucks of asbestos powder along it. His job involved working by the side of the railway. John, 73, battled with breathing problems for many years. He suffered from pleural thickening and asbestosis, a lung disease caused by exposure to lethal asbestos fibres, which took his life on February 17 last year. His death left his wife of 49 years, Sylvia, three daughters and two grandsons distraught and desperate for justice. They are now asking his former colleagues to come forward with vital information. Daughter Nicola Bishop said: "Sadly, all those years he had spent working hard and looking forward to retirement were marred by constant visits to the doctors when his breathing became worse and his health deteriorated. "It was only following the post mortem we discovered his death was due to asbestosis." The family want workers from Tunnel Portland Cement Company Ltd, Tunnel Cement Limited or Tunnel Asbestos, to get in touch, particularly anyone who worked there between 1962 and 1975. Contact Alice Humphreys, at Irwin Mitchell, on 0870 1500100 or e- mail alice.humphreys@irwinmitchell.com ASBESTOS UPDATE: Stowey Quarry Fibro Dump Plans Go to Appeal ------------------------------------------------------------ BBC News Bristol reported that the firm behind plans for a hazardous waste dump at a quarry in Chew Valley near Bristol will appeal against the decision to refuse planning permission. According to the report, Bath and North East Somerset Council planners had recommended refusal of the proposal to dispose of materials including asbestos at Stowey Quarry. They said it had not been shown the quarry was an "appropriate location". Applicant Oaktree Environmental has lodged an appeal to be overseen by the Planning Inspectorate. The application is to use the site to bury 150,000 tonnes of waste a year over a 10-year period, but a petition against the plans received more than 4,000 signatures. The appeal will be heard in public in the autumn. Noise and dust The Stowey Quarry Action Group has been permitted to speak against the proposal at the appeal. It fears asbestos could leach via springs into the Chew Valley reservoir about 1.2 miles (2km) from the site. The impact of lorries travelling through villages carrying waste to the site, and noise and dust pollution, have also been raised as concerns. The group's Sally Monkhouse said it would be "co-ordinating a vigorous campaign on behalf of the community, along with the council, to fight this appeal". Conservative councillor Vic Pritchard, who represents Chew Valley South, said he is hoping to make a representation at the inquiry. He said: "From the outset I have been opposed to the intentions of that application, and I hope we can be successful." A spokesman for Oaktree Environmental said it did not wish to comment at this stage. ASBESTOS UPDATE: Sunderland Hospitals in Asbestos Registry List --------------------------------------------------------------- Sunderland Echo reported that asbestos is present in 28 hospital buildings across Sunderland. According to the report, 28 buildings are currently on the city's Asbestos Risk Register including theatre blocks and children's centres. But bosses at Sunderland Royal Hospital say the material presents no danger to patients and is properly managed. Information obtained by the Echo reveals Sunderland Royal Hospital's main building contains asbestos, along with the city's Eye Infirmary, the Niall Quinn Centre, the Genitourinary Medicine centre, the former neonatal unit and a number of others, the report said. Since January 2011, City Hospitals Sunderland has spent GBP153,667 on the maintenance and removal of asbestos from its buildings. A spokesman for the Trust said: "Asbestos was widely used in building and engineering up to the late 1980s and like other healthcare premises, it was installed in City Hospitals Sunderland's properties constructed prior to this time. "The trust has always placed a high priority on the health and safety of its staff, its contractors, its patients and other members of the public. "It recognises its duties and legal responsibilities under the Health and Safety at Work Act 1974 and the Control of Asbestos Regulations 2012 and has developed comprehensive procedures to manage the asbestos present in its buildings. "It has a dynamic asbestos management plan which sets out the trust strategy for compliance with all relevant health and safety legislation regarding asbestos management." Many of the hospital buildings were erected during the peak of asbestos use in the industry. These buildings often contained large amounts of amosite, commonly referred to as "brown" asbestos and sometimes "gray" asbestos -- one of the more hazardous forms of the material. As long as it is properly managed, the material presents no danger. Last month, the Echo revealed how 65 per cent of schools in the city contained the potentially deadly material. If the asbestos is damaged or disturbed then fibres can be released and breathed in. A large amount of exposure can cause mesothelioma. Asbestos campaigners have called for a national strategy to address the issue of the material still present in buildings which have often passed their original life expectancy. ASBESTOS UPDATE: House Committee Breaks Promise to Fibro Victims ---------------------------------------------------------------- Genevieve Bosilevac was diagnosed with mesothelioma just a few days before her 48th birthday in 2009. The cause was exposure to asbestos from products used in her family's business and home renovations. Since the diagnosis, she has devoted her energy and strength to fighting this disease and ensuring that her six-year- old twin sons have as much time with their mom as possible. Now, she is also turning her focus to Congress and H.R. 982, the so- called Furthering Asbestos Claim Transparency Act (FACT Act). But the Judiciary Committee announced that it will break a promise to hold a public asbestos victims' hearing and instead send the bill straight to a full committee markup scheduled for 10 a.m. Tuesday. There was no Subcommittee vote on the bill, but instead the full Committee will vote on it. Genevieve, along with two asbestos victims' widows, are urging the Committee to stop fast tracking the FACT Act and first follow through with their promise. "I traveled to Washington and attended a hearing in a wheelchair because I think this bill is so destructive to asbestos cancer victims and their families," said Bosilevac. "I just don't understand how Congress could enact such mean-spirited legislation." Other asbestos family survivors such as Judy Van Ness who lost her husband to asbestos-caused disease expressed outrage that Congress is moving to require asbestos victims and their families to make their personal information public. "The FACT Act forces the asbestos trust funds who administer claims to reveal on a public website personally identifiable information about us and our families including the last four digits of our social security number, private work history and personal information of children exposed at an early age. This information could be used to deny employment, credit and health, life and disability insurance. It could also make us more vulnerable to identity thieves, con men and other types of predators," said Van Ness. Asbestos victims and survivors are opposed to the FACT Act because it would obstruct their access to justice, delay compensation for the astronomical medical bills they face and strip them of privacy. On March 20, House Judiciary Subcommittee Chair Spencer Bachus (R-AL) said "we are here today to do what is right for the victims." He then promised the victims an opportunity to publicly testify before his Subcommittee. Instead, they were invited to submit written comments and come to Washington to talk to Hill staff in a closed door "conversation" that would not be recorded or become part of the official record of the legislation. "We oppose the so-called FACT Act because it does not do a single thing to help us, our families, and countless other victims cope with the terrible effects of asbestos disease and death," said Susan Vento, widow of Rep. Bruce Vento (D-MN), who died of mesothelioma. "It's astonishing that, of all the issues Congress could be addressing relating to asbestos, they have chosen one that does nothing for victims, but rather one that gives additional tools to the asbestos industry to drag out these cases and escape accountability." Van Ness is a life-long Republican, so she appealed to the majority of members on the House Judiciary Committee as well as to the Democrats to consider the harm to victims of this legislation. She emphasized that this is not a political issue, it is a victim's rights issue. "My husband served in the U.S. Navy on the U.S.S. Charles Ware destroyer and the U.S. government did the honorable thing and compensated him fully. I expect the U.S. Congress to do right by these victims," she said. "I know you must be hearing from the asbestos companies that are fighting among themselves to avoid compensating the people they have injured and killed, but why in the world would you support that? I ask you to please think again about the harm you are doing to victims and their families with this one-sided bill," said Van Ness. Genevieve, Susan and Judy are part of a growing campaign of people across America who are suffering because of asbestos exposure. Many of them can't travel because of their illnesses. Others don't have the resources or the time to come all the way to Washington. But each and every one of them opposes any legislation that places the interests of the asbestos industry above the rights of innocent victims. For more information on the campaign, visit www.cancervictimsrights.org. ASBESTOS UPDATE: Levy Phillips Defeat LIRR's Summary Judgment Plea ------------------------------------------------------------------ On May 17, 2013, Justice Sherry Klein Heitler, the presiding judge for the New York City Asbestos Litigation, denied a motion for Summary Judgment brought by the Long Island Railroad ("LIRR") against personal injury claims1 brought by a Queens, NY, resident diagnosed with mesothelioma, an aggressive cancer caused by asbestos exposure. The injured party, Morton Frieder, was diagnosed with mesothelioma despite having never worked hands-on with asbestos-containing materials. However, Mr. Frieder spent seven years working in a diner located within the gated premises of the LIRR's Morris Park train repair yard, where asbestos-containing materials were used "routinely" by the LIRR. Lori Benavides, one of the plaintiffs' New York mesothelioma lawyers from the NYC-headquartered national asbestos law firm Levy Phillips & Konigsberg LLP ("LPK"), briefed and argued Plaintiffs' opposition to LIRR's motion. "The decision2 is an important victory for people like Mr. Frieder and many others who did not work directly with asbestos products and yet were diagnosed with mesothelioma, which is an asbestos-caused cancer," commented Ms. Benavides. In its motion, the LIRR argued that, (1) the LIRR did not employ Mr. Frieder nor own the trailer out of which the diner operated, and thus it owed no duty of care to Mr. Frieder to warn about the dangers associated with its use of asbestos at the yard, and (2) the plaintiffs did not establish that Mr. Frieder was exposed to asbestos from the LIRR workers' clothing. In her decision, Justice Heitler disagreed on both counts. The decision further reveals that, while Mr. Frieder never worked hands-on with asbestos, he testified that a "couple hundred" LIRR workers would dine at the diner during breakfast, coffee breaks and lunch daily. These LIRR workers never changed out of their work clothes before eating at the diner. When they came into the diner "they would bang off their boots, take their gloves off and throw them on the counter. If they had a coat or jacket on, they would just shake it off" causing "dust all over the place" that required Mr. Frieder and other diner workers to perform "really heavy sweeping and cleanup of the diner." Plaintiffs also submitted the testimony of two former employees of the LIRR ? George Muckian, a former LIRR boilermaker, and LPK's client Norman McCollum, a former LIRR electrician in the roundhouse at the Morris Park yard. Mr. Muckian testified regarding the asbestos cement and other asbestos materials he used while maintaining LIRR's powerhouse and equipment on trains that came into the yard. He explained that the work he did with the asbestos materials caused a lot of dust to be released into the air around him, landing on his clothes, his hair, and his hands. He then explained that workers, including himself, would then go into the diner, where he specifically recalled seeing Mr. Frieder daily, without first washing or changing out of their dusty clothes. Mr. McCollum's testimony provided further elaboration on the asbestos materials electricians and other workers at the yard used "routinely." Justice Heitler found that Mr. McCollum's testimony, in conjunction with Mr. Frieder's and Mr. Muckian's testimony, created a question of fact for a jury as to "whether LIRR workers with contaminated clothes entered the Diner and exposed Mr. Frieder to asbestos." With regard to LIRR's duty of care, Justice Heitler held that because, "it is evident that the LIRR controlled the circumstances of the Diner and was in the best position to identify and remedy the dangerous condition that allegedly gave rise to Mr. Frieder's injury," LIRR had a duty to prevent that harm. Because the LIRR owned the Morris Park facility, maintained a fence and front gate which prohibited entry to the yard by the general public, had exclusive control over the working conditions within the repair yard, its employees made up all of the Diner's patrons, it supplied power and heat to the diner, and had some say over the operating hours, the fact simply did not matter that Mr. Frieder's employer owned the trailer out of which the diner operated. Rather, "it was the LIRR, and not the Diner, that was in the best position to know about the use of asbestos on the premises and to take reasonable care to prevent Mr. Frieder's exposure thereto." Justice Heitler also rejected LIRR's reliance on Holdampf v. A.C. & S., Inc., 5 N.Y.3d 486 (2005), as "Holdampf is fundamentally distinguishable from the case at bar. Here, the LIRR had control of both the work site where the alleged exposure occurred and its employees. Unlike the husband in Holdampf who wore his asbestos- covered clothes home, the workers here never left the Morris Park facility and thus never left the LIRR's sphere of influence." Hence, "in such circumstances," a premise owner, such as LIRR, owes a duty of care to invitees, such as Mr. Frieder. The legal ruling, on behalf of Mr. Frieder, is an important one to people who develop mesothelioma, lung cancer or other asbestos- related diseases as the result of exposure to asbestos products used by others. "Unfortunately, asbestos is a powerful carcinogen that has a tendency to remain on the clothing of workers and remain in the environment long after it becomes airborne. This decision will help protect the legal rights of those that were innocently exposed to asbestos, even though they were not the ones directly working with products," explained Ms. Benavides, a mesothelioma attorney licensed to practice law in the states of New York, Massachusetts, Washington, Illinois, and Wisconsin. Mesothelioma is an asbestos-related cancer that occurs most commonly in the pleura or peritoneum that line the lungs and abdominal cavities, respectively. The disease occurs after a "latency period" of many decades, which explains why many people exposed to asbestos are diagnosed with mesothelioma many decades after the exposure itself occurs. For over a quarter of a century, mesothelioma lawyers at LPK have been among the pioneers of asbestos litigation in America. The firm's asbestos attorneys have been recognized as nationwide leaders in representing the rights of mesothelioma victims and their families. U.S. News & World Report and Best Lawyers have recently named the firm the 2013 Law Firm of the Year in plaintiff's product liability category. For more information about this or other mesothelioma lawsuits, please contact LPK's New York mesothelioma lawyers at 1-800- MESOLAW (1-800-637-6529) or submit an online inquiry on this website, 24 hours a day, 7 days a week. ASBESTOS UPDATE: Levy Phillips Opens Office in White Plains, NY --------------------------------------------------------------- Headquartered in New York City, the national asbestos law firm of Levy Phillips & Konigsberg LLP ("LPK") has recently opened new offices at 50 Main Street in White Plains, New York. LPK will better serve people suffering from mesothelioma, lung cancer, and asbestosis in the Hudson Valley, including Westchester, Putnam, Rockland, Orange, and Dutchess counties. Mesothelioma lawyers at LPK have been helping families affected by asbestos-related diseases throughout New York, New Jersey, and around the country for nearly 30 years. Westchester mesothelioma lawyers from LPK reside in the county and have represented members of the local community in personal injury and wrongful death lawsuits for decades. Law firm partners Robert I. Komitor and Audrey Perlman Raphael, both honored as "Best Lawyers in America" in mass tort litigation, have long and successful track records working with asbestos victims and their families in Westchester County. Mesothelioma attorney Brendan Tully was raised in Yorktown Heights and has represented families in Westchester County for many years. According to LPK partner Audrey Perlman Raphael, many Westchester County residents were exposed to asbestos and other toxic carcinogens while working in the automotive, electrical, sheet metal, manufacturing, plumbing, railroad, and construction industries. "There are numerous worksites throughout the Hudson Valley where our friends and neighbors were exposed to asbestos and other carcinogens. It is very important to have a local office to better serve victims of asbestos exposure in this area," said Audrey Perlman Raphael. Many workers have been diagnosed with mesothelioma caused by asbestos exposure at worksites, including Indian Point Nuclear Power Plant in Buchanan, Tarrytown Chevrolet Manufacturing Plant, Refined Sugar and Syrup Factory in Yonkers, New York Central Railroad Terminal in Yonkers, Bowline Powerhouse in Haverstraw, Orange and Rockland Powerhouse in Tompkins Cove, Lovett Power Station in Tompkins Cove, Peekskill Powerhouse, Fleischmann Manufacturing in Peekskill, Danskammer Powerhouse in Newburgh, and Kay-Fries Chemical in Stony Point. Workers in the Hudson Valley were also exposed to asbestos-containing materials in many automotive repair shops and automobile dealerships. Sadly, some workers could have carried asbestos dust home on their clothing, exposing family members to the carcinogen. Many women and young children are also exposed to asbestos during home renovations and from common household products and equipment. LPK brings decades of experience and expertise to the Hudson Valley. U.S. News & World Report and Best Lawyers have recently named LPK the 2013 Law Firm of The Year in the field of plaintiff's product liability litigation. The firm's mesothelioma lawyers have won numerous landmark jury verdicts across the country, including in Westchester and Schenectady Counties. Law firm partner Audrey Perlman Raphael's work in Westchester began in 1993 when she achieved an important victory in the United States Bankruptcy Court in White Plains. The case, Konefel v. Kaperonis1, culminated in an important decision holding that liability for intentional torts was not discharged in bankruptcy. LPK partner Jerome H. Block recently won a historic victory in the Southern District of New York2, White Plains Federal Court. Mr. Block's client, the widow of a former smoker who died of lung cancer, was awarded over a million dollars in damages against RJ Reynolds/American Tobacco. Westchester mesothelioma lawyers at LPK are proud to have represented residents of the Hudson Valley, and LPK is eager to help others who suffer from asbestos-related diseases. For more information about the law firm, please contact Audrey Perlman Raphael at 1.914.937.3690 or at araphael@lpklaw.com. ASBESTOS UPDATE: May Whitney Fibro Removal to Continue ------------------------------------------------------ Dan Waters, writing for Chicago Tribune, reported that asbestos abatement at May Whitney Elementary will continue this summer, with Lake Zurich Community Unit School District 95 officials hoping to eventually rid the entire building of the potentially hazardous mineral. According to the report, officials plan to remove floor tiles in four of the school's classrooms, a project that Lyle Erstad, director of facilities and grounds, said will close out abatement of the tiles on the first floor of May Whitney, located at 100 Church St. in Lake Zurich. But this summer's work -- slated to start in July -- won't entirely rid the building of asbestos, Erstad told the news agency. To do so, he said, the district will have to complete the project in stages. Crews removed some of the floor tiles last summer, and will continue to work their way through the school. "The goal would be to do a little bit every summer," he said. "We just have to be wise in what we do." The district was fined last year for violations in its asbestos management plan, including failure to notify the Illinois Department of Public Health before removing tile in another part of the building in 2011, according to department spokesperson Melaney Arnold. New board member Eileen Maloney, who campaigned on getting all district buildings up to code, said the district should focus on pipe fittings instead of floor tiles. "The floor tile is essentially encapsulated and has a lower rating in terms of hazard than pipe insulation," Maloney said. "Pipe insulation is among the highest." But the work that would need to be done to change the pipes would far exceed the labor to replace the floor tiles, Erstad said. He said many of the pipes are behind double ceilings and would require the classrooms to be cleared out, as well as necessitate ceilings and drywall being torn down. "Our goal would be to see that building asbestos-free," Erstad said. "We looked at the low-hanging fruit, in many respects." District 95 board members also expressed concern about the asbestos in the gym, but Erstad said because that project would take a significant amount of time to complete, such a project could not be done this summer. Erstad said the district picked an area that was easier to get to due to the fact that asbestos must get into the air to present a possible health risk. He said the asbestos is currently in "good condition," meaning the likelihood of it becoming airborne is low, according to a consulting firm that handles asbestos management for the district. "Even last summer, what we've tried to do in May Whitney is choose some areas that were easily accessible," Erstad said. Teachers will still have to box up everything in their classrooms, and cabinets will have to be taken out to remove all the tiles, Erstad told the board. Crews will then tent off the section of the school with the four classrooms, clear out the asbestos and ensure the area is clean before opening it back up. The project is out to bid, with results expected to be presented at the district's next board meeting. Erstad would not give early estimates of the project's cost, even in a general way. The district also will ask for an alternate bid on pipe fittings in a closet adjacent to the four classrooms. Erstad said that, like the floor tiles, the pipes in that closet are relatively easy to access. Asbestos problems are not unique to May Whitney, Erstad said. Part of the building was built in the 1920s, he said, and asbestos is often found in building materials from that time. He said other schools in the district also have asbestos, but the highest amount of the mineral can be found at May Whitney, making it a district priority. Erstad said he couldn't estimate when the abatement might be complete at May Whitney, though the four classrooms are expected to be done in time for next school year. "In considering the projects, we looked at a number of different factors," he said. "Based upon the determination of the condition of the materials themselves, we thought this was a viable option." ASBESTOS UPDATE: Bans Influenced by Mesothelioma "Visibility" ------------------------------------------------------------- Surviving Mesothelioma and Cancer Monthly reported that a team of Korean researchers studying the question on why some countries have banned asbestos while others have not says it is likely influenced by perception of mesothelioma risk as well as what neighboring countries are doing. According to the report, medical authorities around the world agree that the mineral asbestos is directly linked to development of mesothelioma, a virulent cancer of the linings around organs. Most often found in the pleura encasing the lungs, mesothelioma is usually the result of on-the-job exposure to asbestos dust. Asbestos was once widely used in a variety of construction materials, including wallboard, paint, floor and ceiling tiles and cement blocks. Even in countries where asbestos is now banned, the presence of the material in existing buildings can pose a mesothelioma risk to demolition or renovation crews, as well as building inhabitants. According to researchers at the School of Public Health in Seoul, South Korea, of the 143 countries that used asbestos between 2003 and 2007, only 44 have now banned the substance. The team found a clear link between the tracking and visibility of mesothelioma in a country and whether or not that country had an asbestos ban in place. Countries with "more clearly-defined health-related infrastructures" kept better track of mesothelioma mortality, making the problem more visible to the public. Countries without mesothelioma databases were much less likely to have banned asbestos. The Korean team found that another big influence on a country's asbestos policy was the policy in surrounding countries. "Asbestos ban policy from adjacent countries might have facilitated the adoption of alternative solutions," observe the researchers. In Europe, asbestos bans tended to "spread" from Nordic countries toward the West. Meanwhile, the countries that make up the United Nations' Rotterdam Convention Conference failed to put asbestos on a global list of hazardous substances. Seven countries including Russia, Zimbabwe, Kazakhstan, India, Kyrgyzstan, Vietnam and Ukraine opposed adding asbestos to the list which would have made it more difficult to ship. Most surprising of all, the U.S. still does not have a comprehensive asbestos ban in place. The World Health Organization estimates that 90,000 annual mesothelioma deaths are directly attributable to asbestos exposure. The journal source is Bahk, J et al, "Why some, but not all, countries have banned asbestos", 2013, International Journal of Occupational and Environmental Health, pp. 127-135. ASBESTOS UPDATE: House Committee Passes Asbestos Transparency Bill ------------------------------------------------------------------ Chris Dickerson, writing for Legal Newsline, reported that the House Judiciary Committee on Tuesday passed legislation requiring more transparency from asbestos trusts. According to the report, the measure -- The Furthering Asbestos Claim Transparency (FACT) Act -- passed without proposed amendments from House Democrats who feared the bill would be a threat to privacy of asbestos victims. The committee voted 17-14 - - along party lines -- to pass HR 982. The report said the legislation would require asbestos personal injury settlement trusts authorized by federal bankruptcy law to disclose information on their claims on a quarterly basis and respond to information requests from parties to asbestos litigation. The bill also would require the trusts to file public reports providing information with each claim for compensation they receive and would require the trusts to provide information about claims to parties in an asbestos suit upon request. The measure is co-sponsored by Rep. Jim Matheson (D-Utah) and Blake Farenthold (R-Texas). Democrats proposed amendments mostly meant to limit what information about claimants could be made public. "What this bill does is allow asbestos victims to be re-victimized by exposing their health information to the public," Rep. John Conyers (D-Michigan) said during hearings Tuesday. The House panel passed a similar bill last year, but it never went to a full House vote. The U.S. Chamber of Commerce's Institute for Legal Reform praised Tuesday's action. "The asbestos compensation system should not allow fraud and abuse to drain the funds available to deserving claimants," ILR Executive Vice President Harold Kim said in a statement late Tuesday. "Exploitation of the system also saddles solvent companies, their shareholders, and employees with paying unjust claims. "Asbestos bankruptcy trusts have operated without adequate oversight for too long. Courts around the country have uncovered examples in which plaintiffs' lawyers have filed inconsistent or fraudulent claims with multiple trusts and in the court system. The bipartisan FACT Act would discourage such wrongdoing." ASBESTOS UPDATE: Fibro Contributes to Failing Grades of NJ SDs -------------------------------------------------------------- Kristen Griffin, writing for Mesothelioma Cancer Alliance, reported that a damning report rocked a community in New Jersey this week after the results revealed that virtually every school in the school district is facing considerable -- and oftentimes, dangerous -- problems. The architectural firm of Fraytak Veisz Hopkins Duthie explored each school in the Hamilton, New Jersey area and found that nearly half of the schools were contaminated with the lethal toxin asbestos and other schools failed to meet federal accessibility standards. However, the litany of issues now facing the Hamilton school district is far more comprehensive than just asbestos and accessibility concerns. Out of the twenty four schools, the architectural firm granted three Hamilton schools grades of "A," the report said. Unfortunately for school administrators and school board members, the failing conditions of the buildings did not come as a shock, the report said. In 2010, the school district was forced to cut $16 million from its overall budget in order to meet new regulations issued by the state. Reducing routine maintenance of school facilities was one of the tough budgetary decisions school district officials had to make. According to Jeff Hewitson, school board president, this "rob Peter to pay Paul" mentality left the school district in disarray. Among the faults found by the architectural firms include spacing issues, not enough bathroom facilities to meet the students and faculty needs, not enough emergency exits and electrical system problems. The ages of the school buildings range from over one hundred years old to facilities considered "newer," clocking in at just under a half of a century. Even the schools that received passing grades -- B's and C's -- have a number of structural concerns. Hewitson pointed out that the grades given reflected how well and thoroughly the buildings have been maintained, and how maintenance was reflected in the school district's budget. Possibly the most dangerous issues uncovered by the investigation was the discovery of asbestos and black mold. Though asbestos is a highly toxic carcinogen, it can be found in a variety of building materials including plumbing and electrical systems, floor and ceiling tiles and roofing. Exposure to asbestos can cause lung cancer and mesothelioma, a rare, yet deadly form of cancer that attacks the delicate lining of the lungs, heart or stomach. Now, the school board must decide what is more economically prudent: investing in the necessary repairs in existing schools or building entirely new structures. ASBESTOS UPDATE: Mesothelioma Victims in Line for GBP100,000 Bonus ------------------------------------------------------------------ Rob Smyth, writing for Burton Mail, reported that a forgotten generation of asbestos victims in Burton and South Derbyshire are to get GBP100,000 payouts. According to the report, up to 3,500 sufferers of the fatal lung disease mesothelioma will share in a GBP355 million pot from a new insurance levy. Although they inhaled asbestos fibres as long as 50 years ago the disease does not strike until later life. Half of the patients diagnosed die within a year because of the time delay victims are often unable to sue. They will now be able to claim six-figure sums if diagnosed after July 25, 2012. Benefits minister Lord Freud said: "The package will mean victims of this terrible disease and families receive a higher level of support and quickly." Mesothelioma UK have decided to back the campaign but said it could be extended. ASBESTOS UPDATE: Exposure to Toxic Dust Causes Grandfather's Death ------------------------------------------------------------------ The West Sussex Gazzette reported that a man who was hoping to move to Australia to be with his grandchildren died of a disease linked with asbestos exposure. According to the report, Dennis Grainger, 83, moved to Upper Beeding last year to live with his son, an inquest heard. He was planning to emigrate but he fell ill and was taken to Worthing Hospital in March. The report said Mr Grainger had malignant mesothelioma, a cancerous disease linked with asbestos exposure and his health rapidly deteriorated. He died at a nursing home on May 6, and an inquest into his death heard his exposure to asbestos may have been the cause of the tumour. Coroner Martin Milward recorded a death of mesothelioma, but not of industrial death as he could not be sure it was a direct result of his work. "I cannot infer he died of an industrial disease, so I will infer he died of mesothelioma," he said. Mr Grainger had worked as a painter and decorator for most of his life, where he lived in Harrogate, Yorkshire. He may have come into contact with the chemical through his work and once used asbestos when building his own shed. ASBESTOS UPDATE: NBN Work Contaminates Penrith Street with Fibro ---------------------------------------------------------------- Kevin Cheng, writing for Penrith Press, reported that two Penrith families have been forced to evacuate their homes, a staggering 18 days after being exposed to asbestos due to unsafe work on the National Broadband Network (NBN). According to the report, Matthew O'Farrell and Troy Lancaster are neighbours on the corner of Hornseywood Ave and Evan St and they said they -- along with their families -- were exposed to asbestos on May 7. According to a Penrith Council report, Telstra had contracted communications construction company Service Stream to do remediation work on several pits in Penrith to ensure the area was NBN-ready -- including five pits in Hornseywood Ave and nearby Evan St. This work, conducted by a subcontractor of Service Stream, involved checking and replacing existing Telstra pits in footpaths, with some up to 50 years old and containing asbestos material. Mr O'Farrell said he arrived home on May 8 to find workers -- who were not wearing safety equipment -- breaking up asbestos near his front yard. He saw the dust spray all over his house and front lawn. "My life changed forever that day," he told the news agency. "My family and friends were exposed to the deadly material known as asbestos. I became nervous, on edge and unsure of my family's future. "There was asbestos on the footpath, in my driveway in my neighbour's yard and on my shoes. The same shoes I go to the gym and the ones I walk inside my house where my baby and six-year-old daughter play." After the incident was reported to WorkCover, the subcontractor responsible was suspended. It is believe the subcontractor had worked on 20 other sites in the Penrith region. A report from an independent hygienist confirmed three of the pits tested positive for asbestos. "They lied and back-pedalled on every occasion," Mr O'Farrell said. "The more I looked the more asbestos I found. Then you think, 'Is it in my wife's lungs, my children's lungs and my baby's lungs?'." Mr Lancaster said he was scared for his own family. "Who will remediate our children's lungs? No one can. Will this cut their lives short and by how much?" he said. The two families are now staying at the Chifley Hotel in Penrith, with the asbestos still not removed from their homes - three weeks after contamination. A Telstra spokesman said the company was committed to cleaning up the site, despite three weeks already passing since contamination. "We've tried on a number of occasions to have an expert team clean up the sites but to date have not been able to get agreement from the residents to proceed," he said. "We have an obligation to the wider community to clean up these public sites as quickly as possible. We also have a directive from Comcare and a request from the council to clean up the sites and we want to get crews on-site as soon as possible. "Service Stream put a detailed remediation plan to residents yesterday and at this stage this will see the public sites cleaned tomorrow and, with the residents' approval, comprehensive cleaning of their properties will take place as well." Service Stream did not return calls made by the Penrith Press. Call 1800 067 225 if you have any concerns about asbestos contamination relating to NBN work near your home. ASBESTOS UPDATE: Widow of Mesothelioma Victim Appeals for Help -------------------------------------------------------------- This is Lancashire reports that the wife of a grandfather-of-four who died from an asbestos-related illness is appealing for his ex- colleagues to help lawyers investigate how he was exposed to the deadly dust. According to the report, Wilfrid Cuerden, from Clayton-le-Woods, was diagnosed with mesothelioma in March 2012 and believed the condition was caused by exposure to asbestos while working for Fox Brothers Plant Hire in Blackpool, in the 60s and 70s. He died in February, aged 71. His wife Dorothea, who has instructed specialist industrial disease lawyers at Irwin Mitchell in a bid to establish how and when he was exposed to the dust, is appealing for her husband's former co-workers at the Flyde Water Board to provide information about the working conditions he endured, the report said. At Fox Brothers, Wilfrid was a heavy plant machinery driver between 1968 and 1970 and was responsible for digging trenches before employees from the water board, who he worked with on major housing projects in Lytham St Annes, laid the pipes made from asbestos cement, the report related. Before his death, Wilfrid recalled the water board staff cutting the pipes to size with a hacksaw and he said he couldn't help but breathe in the asbestos fibres and dust. Katrina London, from Irwin Mitchell's Manchester office, is representing Dorothea. She said: "We hope that Wilfrid's former co-workers will come forward to help answer the many questions Dorothea has about her husband's asbestos exposure as well as what measures, if any, were in place to protect employees like him." Anyone with information about how staff at the Flyde Water Board were exposed to asbestos, contact Katrina London at Irwin Mitchell's Manchester office on 0161 838 7262 or email katrina.london@irwinmitchell.com. ASBESTOS UPDATE: Ulverston Widow Awarded Six-Figure Settlement -------------------------------------------------------------- Will Metcalfe, writing for North West Evening Mail, reported that a grief stricken widow has been awarded a six-figure settlement in an asbestos law suit. According to the report, Marian Wilson's husband, Peter, began suffering symptoms of mesothelioma in 2005 aged 55 but he died on August 31 2011 of the disease. Mr Wilson worked at Oxley Developments Company Ltd in Ulverston in the 1970s, helped build and maintain machinery insulated with asbestos rope and he cut lengths of the rope using a band saw, the report said. In 2006 the couple turned to law firm Irwin Mitchell for help in their battle for answers and an investigation into whether more could have been done to protect him at the Priory Park factory in Cumbria was launched on their behalf. Today expert industrial disease and asbestos lawyer Roger Maddocks, from Irwin Mitchell, confirmed Mrs Wilson has received a six-figure out-of-court settlement -- negotiated a day before the case was due to be heard in court. He said the funds would give her peace of mind and the future financial security that Peter would have provided had he not suffered from the illness. Mr Maddocks said: "This has been an extremely difficult time for Marian who has fought determinedly and tirelessly to get justice for her husband. "During the course of his employment at Oxley Developments Company Ltd, Peter was exposed to asbestos as he built and maintained the machinery and, sadly, he paid the ultimate price." At first Mr Wilson was told his condition might be asbestos related, but was then told by the specialists treating him that his condition was not malignant or related to his exposure to asbestos dust. As his condition developed expert medical evidence confirmed that he was now suffering from malignant mesothelioma caused by his exposure to asbestos dust. On 26 July 2011 Irwin Mitchell began High Court proceedings against Oxley Developments on Mr Wilson's behalf but he died weeks later in August 2011 but his widow continued the court battle on his behalf. Mr Maddocks added: "We were forced to issue proceedings in a bid to get justice for our client, but just a day before we were scheduled to go to court ? and five months after a judge found them to be responsible - Oxley Developments finally started negotiating a settlement, offering a six-figure sum. "Sadly, because of delays in his full diagnosis and the conduct of the defendants in refusing to take responsibility and then delaying their negotiations in terms of settlement, Peter died never knowing that justice had been done. "At least his loved ones now have financial security following his tragic death. It's only right that those people affected by exposure to asbestos through no fault of their own, or their families, are entitled to justice from their former employers." Mrs Wilson, 66, of Ulverston, says she is 'hugely relived' to have won her battle for justice in her husband's name. She said: "The past few years have been absolutely devastating, seeing Peter's health taken away by the mesothelioma. By the time he died two years ago he was incredibly ill, he had trouble breathing and he lost a lot of weight. "No amount of money will ever replace what I have lost, and since his death I have been determined to honour his name and get him the justice he deserves so I am hugely relieved his former employers have finally settled the case so I can start to move on with my life. "However, the way the company's insurers dealt with the claim has been appalling. They delayed making any firm proposal until the day before the case was due to go to court in London." ensure that victims of asbestos are given a fair route to justice." ********* 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. 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