/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/130621.mbx C L A S S A C T I O N R E P O R T E R Friday, June 21, 2013, Vol. 15, No. 122 Headlines ACTAVIS INC: High Court Says 11th Cir. Erred in Tossing FTC Suit ALLSCRIPTS HEALTHCARE: Awaits Order on Bid to Dismiss Merger Suit ALLSCRIPTS HEALTHCARE: Awaits Ruling in "Pain Clinic" Suit ALLSCRIPTS HEALTHCARE: "PHI" Parties Proceeding With Discovery AMERICAN EQUITY: Might Lose $17.5MM Due to "Improper Sales" Suit ASSURED GUARANTY: Jefferson County's Sewer Debt Suit Still Stayed ASSURED GUARANTY: "MDL 1950" Remains Pending in New York Court BARBARA'S BAKERY: Prelim. Injunction Bid in False Ad Suit Denied BEBELOVE: Recalls 5,600 Baby Bath Seats Due to Drowning Hazard BUY BUY BABY: Recalls Idea Baby Bath Seats Over Drowning Risk CANADA: Class Action Against RCMP May Take Years Before Trial CAPITAL ONE: Gets Favorable Ruling in "Lynch" Debt Collection Suit CARRIAGE SERVICES: Discovery in "Leathermon" Ready to Proceed CHELSEA & SCOTT: Recalls 1,950 Idea Baby Bath Seats CHICAGO TITLE: Judge Ups Award Against Capital Title to $1.3-Mil. CHRYSLER GROUP: Recalls 1.56 Million Older-Model Jeeps CINTAS CORP: 6th Cir. Rejects Gender Bias Class Suit COLUMBIA BANKING: West Coast Bancorp Merger Suit Consolidated DERMATECH: McCarthy Tetrault Discusses Class Action Ruling DERMATECH: McMillan Discusses Class Action Ruling DFC GLOBAL: Continues to Defend Class Suits in Canada vs. Units DUN & BRADSTREET: Enters Accord to Settle TCPA Violations Suit DUN & BRADSTREET: Discovery Starts in O&R Antitrust Lawsuit EBAY INC: Judge Tosses Sellers' Class Action Over Listing Charges FOREST RIVER: Recalls 221 Forester and Other Models of Motorhomes FREDDIE MAC: Discovery Proceeds in "OPERS" Securities Suit FREDDIE MAC: No Summary Judgment Yet in Kuriakose Suit FREDDIE MAC: May Have to Indemnify Goldman et al. in IPO Suit FREDDIE MAC: Lawsuits Over Real Estate Transfer Taxes Stayed GENERAL MOTORS: Recalls 3,456 GMC, Chevrolet, Buick and Saab SUVs HANSEN MEDICAL: Securities Suit Parties Yet to File Settlement HEALTH NET: Obtains Final Approval of "Eddings" Suit Settlement HSBC USA: Readies Portion of Settlement in Antitrust Suit HSBC USA: Moves to Consolidate Checking Account Overdraft Suit HSBC USA: Still Faces Lawsuits Over Lender-Placed Insurance HSBC USA: Court Yet to Rule on Plaintiffs' Appeal in Madoff Suit INNOVATION VENTURES: Hermida Suit Stayed Pending Transfer to MDL JUNIPER NETWORKS: Dismissal Sought in Retirement System's Suit KERYX BIOPHARMA: Motion for Lead Plaintiff & Counsel Pending MANULIFE FINANCIAL: Investor Class Action Hearing Begins MCKESSON CORPORATION: Settles Suit Over PSS World Acquisition MELLANOX TECHNOLOGIES: May Face Class Action Over TASE Delisting METABOLIX INC: Awaits Decision on Bid to Dismiss "Coyne" Suit MORGAN STANLEY: ERISA Litigation Dismissed MORGAN STANLEY: "Coulter" Action Dismissed MORGAN STANLEY: Files Answer to Amended Pass-Through Cert. Suit MORGAN STANLEY: IndyMac MBS Suit Stayed Pending Settlement Talks MORGAN STANLEY: BofA Settles Suit v. Countrywide Financial NATIONAL BEEF: Recalls 22,737 Pounds of Raw Ground Beef Products NATURA PET: Recalls Specialized Dry Pet Foods Due to Health Risk NELNET INC: Unit's Bid to Appeal in "Yaakov" Suit Denied in May NOVA SCOTIA HOME: Province Denies Responsibility in Abuses NOVATION COMPANIES: Dismissal of Fund's Securities Suit Reversed OSKRI CORP: Recalls Coconut, Fig and Almond Dark Chocolate Bars PANTRY INC: Still Faces 5 Hot Fuel Class Suits PANTRY INC: Suit Over FACT Act Violation Stayed Pending Appeal PAPA JOHN'S: Enters Settlement in Suit Over "Unsolicited" Text Ad PAPA JOHN'S: 14,000 Plaintiffs Could Be Added in FLSA Suit PAPA'S GRILL: N.C. Appeals Court Weighs Spam Faxes Class Action PEABODY ENERGY: Moves to Dismiss New Claims in ERISA Lawsuit PET VALU: Stikeman Elliot Discusses Opt-Out Period Ruling PROLOR BIOTECH: Faces Six Class Suits Over Proposed OPKO Merger QUALITY INN: Worker Justice Center Files Class Action RANGE RESOURCES: Settles Class Action for $87.5 Million SEALED AIR: Awaits Settlement Funding in Canadian Asbestos Suit SMITHKLINE BEECHAM: 'Flonase' Antitrust Suit Deal Gets Final Okay SOUTHERN CO: Appeal From Hurricane Katrina Suit Dismissal Pending SOUTHERN STAR: Continues to Defend Price I and II Litigation STARBUCKS CORP: ADA Violations Suit to Include Calif. Stores STEC INC: Court Approves $35.8MM Settlement of Securities Suit STEC INC: State Securities Claims Could Be Released STERLING FINANCIAL: Awaits Order on Motion to Junk Stock Suit STERLING FINANCIAL: July 11 Hearing on ERISA Suit Settlement TAMARA YOUNKER: Dental Class Action Nears Resolution TANGOE INC: Connecticut Court Consolidated 3 Securities Suits TEMPUR-PEDIC INT'L: Awaits Prelim. OK of Merger Suits Settlement TEMPUR-PEDIC INT'L: Continues to Defend Two Securities Suits TIP TOP: Recalls 18,000 Pounds of Roasted Chicken Product UNITED ONLINE: Completes Distribution of Settlement in Fraud Suit UNITED ONLINE: June Hearing Set in Suit Over "Unfair Competition" UNITED ONLINE: No Trial Date Yet in "Trilegiant" Suit UNITED ONLINE: Awaits Court Ruling on Consolidation Motion UNITED STATES: ACLU Files Class Action Over Border Patrol Coercion WILLIAMS COMPANIES: Plans to Seek Review of Antitrust Suit Ruling WILLIAM COMPANIES: Estimates $32MM Loss in Dispute v. FHRA WILLIS: Faces Another Class Action Over Stanford Ponzi Scheme * Battea Reports $678MM Settlement Distributions in 1st Qtr. 2013 * Consumer Goods Manufacturers Face Class Action Risks * Firm Launches Deepwater Horizon Oil Spill Claims Website * U.S. Supreme Court Grapples With Class Actions Asbestos Litigation ASBESTOS UPDATE: Specialty Products Wants $1BB Appeal In 3rd Cir. ASBESTOS UPDATE: Metex Mfg. Can Join in Home Insurance Proceeding ASBESTOS UPDATE: No Asbestos Indemnification For Celotex Corp. ASBESTOS UPDATE: Graham Corp. Continues to Defend Exposure Suits ASBESTOS UPDATE: Toro Company Continues to Defend PI Suits ASBESTOS UPDATE: Met-Pro Corp. Paid $740,000 to Settle Claims ASBESTOS UPDATE: OP-TECH Paid $100,000 Settlement to Labor Dept. ASBESTOS UPDATE: Navistar Int'l. Continues to Defend PI Suits ASBESTOS UPDATE: J. C. Penney Recorded $20MM Liability Estimate ASBESTOS UPDATE: Deadly Dust Dumped Near Sydney Childcare Centre ASBESTOS UPDATE: Toxic Fibro Scare on Harbour Bridge ASBESTOS UPDATE: Concerns on Deadly Dust After Newcastle Explosion ASBESTOS UPDATE: Secondary Exposure Suit Filed by Worker's Ex-wife ASBESTOS UPDATE: Fibro Found in 80% of Schools in Warrington ASBESTOS UPDATE: Shipyard Workers Urged to Call Victims Center ASBESTOS UPDATE: Worcester Meso Victim Wins Compensation Battle ASBESTOS UPDATE: Hampshire Killed by Toxic Dust & Cigarettes ASBESTOS UPDATE: State Probes Fibro Claims at Lahaina Surf ASBESTOS UPDATE: Retired Nurse Seeks Former Colleagues' Help ASBESTOS UPDATE: Agent Censured on Asbestos Claims ASBESTOS UPDATE: Wife Exposed to Asbestos Wins $27MM ASBESTOS UPDATE: Mesothelioma Victim Gives Voice to Other Victims ASBESTOS UPDATE: Fibro Removal Bids in for Armory ASBESTOS UPDATE: Thieves Broke Asbestos Panels in Garage ASBESTOS UPDATE: Baron and Budd Calls Attention to Fibro Exposure ASBESTOS UPDATE: Tow Law Fire Destroys Fibro-Containing Building ASBESTOS UPDATE: For One Victim, Justice is a Moving Target ASBESTOS UPDATE: Cwmcarn High School Removal Action "Frustration" ASBESTOS UPDATE: Outrage Over Denial of Compensation to Veterans ASBESTOS UPDATE: Toxic Dust Cleaned Up in Bendigo Street ASBESTOS UPDATE: More Australian Jails Pose Risk ASBESTOS UPDATE: Most Philippine Schools Still Use Fibro in Labs ASBESTOS UPDATE: Deadly Fibro an NBN Issue, Says Liberals ASBESTOS UPDATE: ADAO Gets 2013 Silver Stevie(R) Award ASBESTOS UPDATE: 3rd Wave of Australian Meso Victims Diagnosed ASBESTOS UPDATE: Architect Denies Darwin Bldg. Contains Asbestos ASBESTOS UPDATE: Fibro Halts Demolition at Ivy Ridge Nursing Home ASBESTOS UPDATE: Fibro Discovery Could Slow Down Ind. Fire Probe ASBESTOS UPDATE: Gov. Furious as Cwmcarn Asbestos Saga Goes On ASBESTOS UPDATE: Fibro Panels Dumped at Newbiggin Land ASBESTOS UPDATE: Asons Solicitors Warn of Secondary Exposure ASBESTOS UPDATE: "Drug House" Asbestos Spurs Rising Frustration ASBESTOS UPDATE: Suit Remanded Over Ambiguous Contract Provisions ASBESTOS UPDATE: Crane Co. Allowed to Amend Answer to Widow's Suit ASBESTOS UPDATE: Appeal From Dismissal of Suit v. Developer Denied ASBESTOS UPDATE: Ct. Rules on Insurance Issue in Lukens PI Suits ASBESTOS UPDATE: Integrity Not Required to Pay Congoleum Claims ********* ACTAVIS INC: High Court Says 11th Cir. Erred in Tossing FTC Suit ---------------------------------------------------------------- A divided U.S. Supreme Court on June 17, 2013, issued a ruling in the case, FEDERAL TRADE COMMISSION v. ACTAVIS, INC., ET AL., No. 12-416. In a 43-page decision, the Supreme Court held that the Eleventh Circuit erred in affirming the dismissal of the FTC's complaint. According to Actavis' May 7, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2013, the U.S. Federal Trade Commission and the State of California on January 29, 2009, filed a lawsuit in the United States District Court for the Central District of California (Federal Trade Commission, et al. v. Watson Pharmaceuticals, Inc., et al., USDC Case No. CV 09-00598) alleging that the Company's September 2006 patent lawsuit settlement with Solvay Pharmaceuticals, Inc., related to AndroGel 1% (testosterone gel) CIII is unlawful. The complaint generally alleged that the Company improperly delayed its launch of a generic version of Androgel in exchange for Solvay's agreement to permit the Company to co-promote Androgel for consideration in excess of the fair value of the services provided by the Company, in violation of federal and state antitrust and consumer protection laws. The complaint sought equitable relief and civil penalties. On February 2 and 3, 2009, three separate lawsuits alleging similar claims were filed in the United States District Court for the Central District of California by various private plaintiffs purporting to represent certain classes of similarly situated claimants (Meijer, Inc., et al., v. Unimed Pharmaceuticals, Inc., et al., USDC Case No. EDCV 09-0215); (Rochester Drug Co-Operative, Inc. v. Unimed Pharmaceuticals Inc., et al., Case No. EDCV 09- 0226); (Louisiana Wholesale Drug Co. Inc. v. Unimed Pharmaceuticals Inc., et. al, Case No. EDCV 09-0228) . On April 8, 2009, the Court transferred the government and private cases to the United States District Court for the Northern District of Georgia. On April 21, 2009 the State of California voluntarily dismissed its lawsuit against the Company without prejudice. The Federal Trade Commission and the private plaintiffs in the Northern District of Georgia filed amended complaints on May 28, 2009. The private plaintiffs amended their complaints to include allegations concerning conduct before the U.S. Patent and Trademark Office, conduct in connection with the listing of Solvay's patent in the Food and Drug Administration's "Orange Book," and sham litigation. Additional actions alleging similar claims have been filed in various courts by other private plaintiffs purporting to represent certain classes of similarly situated direct or indirect purchasers of Androgel (Stephen L. LaFrance Pharm., Inc. d/b/a SAJ Dist. v. Unimed Pharms., Inc., et al., D. NJ Civ. No. 09-1507); (Fraternal Order of Police, Fort Lauderdale Lodge 31, Insurance Trust Fund v. Unimed Pharms. Inc., et al.,D. NJ Civ. No. 09-1856 ); ( Scurto v. Unimed Pharms., Inc., et al., D. NJ Civ. No. 09- 1900 ); ( United Food and Commercial Workers Unions and Employers Midwest Health Benefits Fund v. Unimed Pharms., Inc., et al., D. MN Civ. No. 09-1168 ); ( Rite Aid Corp. et al. v. Unimed Pharms., Inc. et al., M.D. PA Civ. No. 09-1153); (Walgreen Co., et al. v. Unimed Pharms., LLC, et al., MD. PA Civ. No. 09-1240 ); ( Supervalu, Inc. v. Unimed Pharms., LLC, et al, ND. GA Civ. No. 10- 1024); ( LeGrand v. Unimed Pharms., Inc., et al ., ND. GA Civ. No. 10-2883); ( Jabo's Pharmacy Inc. v. Solvay Pharmaceuticals, Inc., et al ., Cocke County, TN Circuit Court Case No. 31,837). On April 20, 2009, the Company was dismissed without prejudice from the Stephen L. LaFrance action pending in the District of New Jersey. On October 5, 2009, the Judicial Panel on Multidistrict Litigation transferred all actions then pending outside of the United States District Court for the Northern District of Georgia to that district for consolidated pre-trial proceedings (In re: AndroGel Antitrust Litigation (No. II), MDL Docket No. 2084 ), and all currently-pending related actions are presently before that court. On February 22, 2010, the judge presiding over all the consolidated litigations related to Androgel then pending in the United States District Court for the Northern District of Georgia granted the Company's motions to dismiss the complaints, except the portion of the private plaintiffs' complaints that include allegations concerning sham litigation. Final judgment in favor of the defendants was entered in the Federal Trade Commission's action on April 21, 2010. On April 25, 2012, the Court of Appeals affirmed the dismissal. On December 7, 2012, the U.S. Supreme Court granted the FTC's Petition for a Writ of Certiorari. The hearing on the petition was held on March 25, 2013. On July 20, 2010, the plaintiff in the Fraternal Order of Police action filed an amended complaint adding allegations concerning conduct before the U.S. Patent and Trademark Office, conduct in connection with the listing of Solvay's patent in the Food and Drug Administration's "Orange Book," and sham litigation similar to the claims raised in the direct purchaser actions. On October 28, 2010, the judge presiding over MDL 2084 entered an order pursuant to which the LeGrand action, filed on September 10, 2010, was consolidated for pretrial purposes with the other indirect purchaser class action as part of MDL 2084 and made subject to the Court's February 22, 2010 order on the motion to dismiss. In February 2012, the direct and indirect purchaser plaintiffs and the defendants filed cross-motions for summary judgment, and on June 22, 2012, the indirect purchaser plaintiffs, including Fraternal Order of Police, LeGrand and HealthNet, filed a motion for leave to amend and consolidate their complaints. On September 28, 2012, the district court granted summary judgment in favor of the defendants on all outstanding claims. The plaintiffs have appealed. According to the Supreme Court: (a) Although the anti-competitive effects of the reverse settlement agreement might fall within the scope of the exclusionary potential of Solvay's patent, this does not immunize the agreement from antitrust attack. (b) While the Eleventh Circuit's conclusion finds some support in a general legal policy favoring the settlement of disputes, its related underlying practical concern consists of its fear that antitrust scrutiny of a reverse payment agreement would require the parties to engage in time-consuming, complex, and expensive litigation to demonstrate what would have happened to competition absent the settlement. (c) The Supreme Court declines to hold that reverse payment settlement agreements are presumptively unlawful. A copy of the ruling is available at: http://www.supremecourt.gov/opinions/12pdf/12-416_m5n0.pdf BREYER, J., delivered the opinion of the Court, in which KENNEDY, GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. ROBERTS, C. J., filed a dissenting opinion, in which SCALIA and THOMAS, JJ., joined. ALITO, J., took no part in the consideration or decision of the case. ALLSCRIPTS HEALTHCARE: Awaits Order on Bid to Dismiss Merger Suit ----------------------------------------------------------------- Allscripts Healthcare Solutions, Inc., is awaiting a court decision on its motion to dismiss a merger-related class action lawsuit, according to the Company's May 10, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2013. On May 2, 2012, a lawsuit was filed in the United States District Court for the Northern District of Illinois against the Company, Glen Tullman, the former Chief Executive Officer, and William Davis, the former Chief Financial Officer of the Company, by the Bristol County Retirement System for itself and on behalf of a purported class consisting of stockholders, who purchased Allscripts common stock between November 18, 2010, and April 26, 2012. The Complaint alleges that the Company, Mr. Tullman and Mr. Davis made materially false and misleading statements and/or omissions during the putative class period regarding the Company's progress in integrating Allscripts' and Eclipsys Corporation's business following the August 24, 2010 merger and that the Company lacked a reasonable basis for certain statements regarding the Company's post-merger integration efforts, operations, results and projections of future financial performance. A lead plaintiff has been appointed and on January 10, 2013, the Plaintiff filed an amended complaint. On March 14, 2013, the Company filed a motion to dismiss the lead plaintiff's amended complaint. The Company says it intends to vigorously defend against these claims. Based in Chicago, Illinois, Allscripts Healthcare Solutions, Inc. -- http://www.allscripts.com/-- is a provider of clinical, financial, connectivity and information solutions and related professional services that empower hospitals, physicians and post- acute organizations to deliver world-class outcomes. The Company's businesses deliver innovative solutions that provide physicians and other healthcare professionals with just-right, just-in-time information, connect them to each other and to the entire community of care, and transform healthcare by improving the quality and efficiency of patient care. ALLSCRIPTS HEALTHCARE: Awaits Ruling in "Pain Clinic" Suit ---------------------------------------------------------- Allscripts Healthcare Solutions, Inc., is awaiting a court decision on Pain Clinic of Northwest Florida, Inc.'s motion seeking leave to file a second amended complaint, according to the Company's May 10, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2013. On December 27, 2012, Pain Clinic of Northwest Florida, Inc. filed a Complaint in the Circuit Court of the 11th Judicial Circuit in and for Miami-Dade County, Florida, against the Company. On January 29, 2013, a First Amended Complaint was filed in this lawsuit through which the following three additional plaintiffs were added: American Pain Care Specialists, LLC; Advanced Pain Specialists, Inc.; and South Baldwin Family Practice, LLC. The four plaintiffs seek to certify a class of all similarly situated physician-customers that purchased the MyWay product and seek damages for various claims, including breach of warranty and unjust enrichment. On February 5, 2013, the Company filed a motion to compel arbitration and to dismiss or stay the lawsuit during arbitration, and a motion to stay discovery during arbitration, which were both denied by the trial court. The Company has appealed the denial of the motion to compel arbitration and to dismiss or stay the lawsuit during arbitration, and is currently pursuing that appeal before Florida's Third District Court of Appeal. On April 19, 2013, the plaintiffs filed a motion seeking leave to file a Second Amended Complaint, through which the plaintiffs intend to drop the claim for breach of warranty, and add claims for tortious interference with business relationships, violations of Florida's Deceptive and Unfair Trade Practices Act (Fla. Stat. Section 501.201, et seq.), and violations of various other states' consumer protection laws. In the event the trial court grants that motion, the Company will thereafter file an appropriate response to the Second Amended Complaint. The Company intends to vigorously defend this matter. Based in Chicago, Illinois, Allscripts Healthcare Solutions, Inc. -- http://www.allscripts.com/-- is a provider of clinical, financial, connectivity and information solutions and related professional services that empower hospitals, physicians and post- acute organizations to deliver world-class outcomes. The Company's businesses deliver innovative solutions that provide physicians and other healthcare professionals with just-right, just-in-time information, connect them to each other and to the entire community of care, and transform healthcare by improving the quality and efficiency of patient care. ALLSCRIPTS HEALTHCARE: "PHI" Parties Proceeding With Discovery -------------------------------------------------------------- The parties in the class action lawsuit initiated by Physicians Healthsource, Inc. are proceeding with discovery, according to Allscripts Healthcare Solutions, Inc.'s May 10, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2013. On May 1, 2012, Physicians Healthsource, Inc. ("PHI") filed a class action Complaint in U.S. District Court for the Northern District of Illinois against the Company. The Complaint alleges that on multiple occasions between July 2008 and December 2011, Allscripts or its agent sent advertisements by fax to the Plaintiff and a class of similarly situated persons, without first receiving the recipients' express permission or invitation in violation of the Telephone Consumer Protection Act, 47 U.S.C. Section 227 ("TCPA"). The Complaint seeks $500 for each alleged violation of the TCPA, treble damages if the Court finds the violations to be willful, knowing or intentional, and injunctive and other relief. Allscripts was served with the Complaint and PHI's Motion for Class Certification on May 7, 2012. Discovery in this matter had been stayed pending a decision of the 7th Circuit Court of Appeals in the case of Holtzman v. Turza, which could address claims at issue in this case. Although a decision in the Holtzman case has not yet been issued, on March 28, 2013, the Court effectively lifted the stay, requiring the Company to file its responsive pleading and respond to written discovery promulgated in June 2012. Allscripts filed its Answer and Affirmative Defenses on April 19, 2013. The parties are proceeding with discovery. The Company says it intends to vigorously defend against these claims. Based in Chicago, Illinois, Allscripts Healthcare Solutions, Inc. -- http://www.allscripts.com/-- is a provider of clinical, financial, connectivity and information solutions and related professional services that empower hospitals, physicians and post- acute organizations to deliver world-class outcomes. The Company's businesses deliver innovative solutions that provide physicians and other healthcare professionals with just-right, just-in-time information, connect them to each other and to the entire community of care, and transform healthcare by improving the quality and efficiency of patient care. AMERICAN EQUITY: Might Lose $17.5MM Due to "Improper Sales" Suit ---------------------------------------------------------------- American Equity Investment Life Holding Company estimates a probable loss of $17.5 million in relation to its possible settlement of In Re: American Equity Annuity Practices and Sales Litigation, according to the company's May 8, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2013. In recent years, companies in the life insurance and annuity business have faced litigation, including class action lawsuits, alleging improper product design, improper sales practices and similar claims. The company is currently a defendant in a purported class action, McCormack, et al. v. American Equity Investment Life Insurance Company, et al., in the United States District Court for the Central District of California, Western Division and Anagnostis v. American Equity, et al., coordinated in the Central District, entitled, In Re: American Equity Annuity Practices and Sales Litigation, in the United States District Court for the Central District of California, Western Division (complaint filed September 7, 2005) (the "Los Angeles Case"), involving allegations of improper sales practices and similar claims. The Los Angeles Case is a consolidated action involving several lawsuits filed by individuals, and the individuals are seeking class action status for a national class of purchasers of annuities issued by the company; however, no class has yet been certified. The named plaintiffs in this consolidated case are Bernard McCormack, Gust Anagnostis by and through Gary S. Anagnostis and Robert C. Anagnostis, Regina Bush by and through Sharon Schipiour, Lenice Mathews by and through Mary Ann Maclean and George Miller. The allegations generally attack the suitability of sales of deferred annuity products to persons over the age of 65. The plaintiffs seek rescission and injunctive relief including restitution and disgorgement of profits on behalf of all class members under California Business & Professions Code section 17200 et seq. and Racketeer Influenced and Corrupt Organizations Act; compensatory damages for breach of fiduciary duty and aiding and abetting of breach of fiduciary duty; unjust enrichment and constructive trust; and other pecuniary damages under California Civil Code section 1750 and California Welfare & Institutions Codes section 15600 et seq. The company participated in mediation sessions with plaintiffs' counsel since 2011 where potential settlement terms have been discussed. Based upon the current status of those discussions, the $17.5 million litigation liability represents the Company's best estimate of probable loss with respect to this litigation. However, a formal settlement has not been reached, the potential settlement has not been reviewed by the court and other factors could potentially result in a change in this estimate as further developments take place. In light of the inherent uncertainties involved in the pending purported class action lawsuit, there can be no assurance that such litigation, or any other pending or future litigation, will not have a material adverse effect on the Company's business, financial condition, or results of operations. ASSURED GUARANTY: Jefferson County's Sewer Debt Suit Still Stayed ----------------------------------------------------------------- In August 2008, a number of financial institutions and other parties, including Assured Guaranty Ltd.'s subsidiary, Assured Guaranty Municipal Corp. ("AGM"), and other bond insurers, were named as defendants in a civil action brought in the circuit court of Jefferson County, Alabama, relating to the County's problems meeting its sewer debt obligations: Charles E. Wilson vs. JPMorgan Chase & Co et al (filed the Circuit Court of Jefferson County, Alabama), Case No. 01-CV-2008-901907.00, a putative class action. The action was brought on behalf of rate payers, tax payers and citizens residing in Jefferson County, and alleges conspiracy and fraud in connection with the issuance of the County's debt. The complaint in this lawsuit seeks equitable relief, unspecified monetary damages, interest, attorneys' fees and other costs. On January 13, 2011, the circuit court issued an order denying a motion by the bond insurers and other defendants to dismiss the action. The Defendants, including the bond insurers, have petitioned the Alabama Supreme Court for a writ of mandamus to the circuit court vacating such order and directing the dismissal with prejudice of plaintiffs' claims for lack of standing. On January 23, 2012, the Alabama Supreme Court entered a stay pending the resolution of the Jefferson County bankruptcy. The Company says it cannot reasonably estimate the possible loss or range of loss, if any, that may arise from this lawsuit. No further updates were reported in the Company's May 10, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2013. Assured Guaranty Ltd. -- http://www.assuredguaranty.com/-- is a Bermuda-based holding company incorporated in 2003 that provides, through its subsidiaries, credit protection products to the United States and international public finance, infrastructure and structured finance markets. The Company applies its credit underwriting judgment, risk management skills and capital markets experience to offer insurance that protects holders of debt instruments and other monetary obligations from defaults in scheduled payments, including scheduled interest and principal payments. ASSURED GUARANTY: "MDL 1950" Remains Pending in New York Court -------------------------------------------------------------- During 2008, nine putative class action lawsuits were filed in federal court alleging federal antitrust violations in the municipal derivatives industry, seeking damages and alleging, among other things, a conspiracy to fix the pricing of, and manipulate bids for, municipal derivatives, including guaranteed investment contracts ("GICs"). These cases have been coordinated and consolidated for pretrial proceedings in the U.S. District Court for the Southern District of New York as MDL 1950, In re Municipal Derivatives Antitrust Litigation, Case No. 1:08-cv-2516 ("MDL 1950"). Five of these cases named both Assured Guaranty Ltd.'s subsidiaries, Assured Guaranty Municipal Holdings Inc. ("AGMH") and Assured Guaranty Municipal Corp. ("AGM"): (a) Hinds County, Mississippi v. Wachovia Bank, N.A.; (b) Fairfax County, Virginia v. Wachovia Bank, N.A.; (c) Central Bucks School District, Pennsylvania v. Wachovia Bank, N.A.; (d) Mayor and City Council of Baltimore, Maryland v. Wachovia Bank, N.A.; and (e) Washington County, Tennessee v. Wachovia Bank, N.A. In April 2009, the MDL 1950 court granted the defendants' motion to dismiss on the federal claims, but granted leave for the plaintiffs to file a second amended complaint. In June 2009, interim lead plaintiffs' counsel filed a Second Consolidated Amended Class Action Complaint; although the Second Consolidated Amended Class Action Complaint currently describes some of AGMH's and AGM's activities, it does not name those entities as defendants. In March 2010, the MDL 1950 court denied the named defendants' motions to dismiss the Second Consolidated Amended Class Action Complaint. In March 2013, the putative class plaintiffs served a Third Consolidated Amended Class Action Complaint that does not list AGMH or AGM. The complaints in these lawsuits generally seek unspecified monetary damages, interest, attorneys' fees and other costs. The Company cannot reasonably estimate the possible loss, if any, or range of loss that may arise from these lawsuits. Four of the cases named AGMH (but not AGM) and also alleged that the defendants violated California state antitrust law and common law by engaging in illegal bid-rigging and market allocation, thereby depriving the cities or municipalities of competition in the awarding of GICs and ultimately resulting in the cities paying higher fees for these products: (f) City of Oakland, California v. AIG Financial Products Corp.; (g) County of Alameda, California v. AIG Financial Products Corp.; (h) City of Fresno, California v. AIG Financial Products Corp.; and (i) Fresno County Financing Authority v. AIG Financial Products Corp. When the four plaintiffs filed a consolidated complaint in September 2009, the plaintiffs did not name AGMH as a defendant. However, the complaint does describe some of AGMH's and AGM's activities. The consolidated complaint generally seeks unspecified monetary damages, interest, attorneys' fees and other costs. In April 2010, the MDL 1950 court granted in part and denied in part the named defendants' motions to dismiss this consolidated complaint. In 2008, AGMH and AGM also were named in five non-class action lawsuits originally filed in the California Superior Courts alleging violations of California law related to the municipal derivatives industry: (a) City of Los Angeles, California v. Bank of America, N.A.; (b) City of Stockton, California v. Bank of America, N.A.; (c) County of San Diego, California v. Bank of America, N.A.; (d) County of San Mateo, California v. Bank of America, N.A.; and (e) County of Contra Costa, California v. Bank of America, N.A. Amended complaints in these actions were filed in September 2009, adding a federal antitrust claim and naming AGM (but not AGMH) and Assured Guaranty US Holdings Inc. ("AGUS"), among other defendants. These cases have been transferred to the Southern District of New York and consolidated with MDL 1950 for pretrial proceedings. In late 2009, AGM and AGUS, among other defendants, were named in six additional non-class action cases filed in federal court, which also have been coordinated and consolidated for pretrial proceedings with MDL 1950: (f) City of Riverside, California v. Bank of America, N.A.; (g) Sacramento Municipal Utility District v. Bank of America, N.A.; (h) Los Angeles World Airports v. Bank of America, N.A.; (i) Redevelopment Agency of the City of Stockton v. Bank of America, N.A.; (j) Sacramento Suburban Water District v. Bank of America, N.A.; and (k) County of Tulare, California v. Bank of America, N.A. The MDL 1950 court denied AGM and AGUS's motions to dismiss these eleven complaints in April 2010. Amended complaints were filed in May 2010. On October 29, 2010, AGM and AGUS were voluntarily dismissed with prejudice from the Sacramento Municipal Utility District case only. The complaints in these lawsuits generally seek or sought unspecified monetary damages, interest, attorneys' fees, costs and other expenses. The Company cannot reasonably estimate the possible loss, if any, or range of loss that may arise from the remaining lawsuits. In May 2010, AGM and AGUS, among other defendants, were named in five additional non-class action cases filed in federal court in California: (a) City of Richmond, California v. Bank of America, N.A. (filed on May 18, 2010, N.D. California); (b) City of Redwood City, California v. Bank of America, N.A. (filed on May 18, 2010, N.D. California); (c) Redevelopment Agency of the City and County of San Francisco, California v. Bank of America, N.A. (filed on May 21, 2010, N.D. California); (d) East Bay Municipal Utility District, California v. Bank of America, N.A. (filed on May 18, 2010, N.D. California); and (e) City of San Jose and the San Jose Redevelopment Agency, California v. Bank of America, N.A (filed on May 18, 2010, N.D. California). These cases have also been transferred to the Southern District of New York and consolidated with MDL 1950 for pretrial proceedings. In September 2010, AGM and AGUS, among other defendants, were named in a sixth additional non-class action filed in federal court in New York, but which alleges violation of New York's Donnelly Act in addition to federal antitrust law: Active Retirement Community, Inc. d/b/a Jefferson's Ferry v. Bank of America, N.A. (filed on September 21, 2010, E.D. New York), which has also been transferred to the Southern District of New York and consolidated with MDL 1950 for pretrial proceedings. In December 2010, AGM and AGUS, among other defendants, were named in a seventh additional non-class action filed in federal court in the Central District of California, Los Angeles Unified School District v. Bank of America, N.A., and in an eighth additional non-class action filed in federal court in the Southern District of New York, Kendal on Hudson, Inc. v. Bank of America, N.A. These cases also have been consolidated with MDL 1950 for pretrial proceedings. The complaints in these lawsuits generally seek unspecified monetary damages, interest, attorneys' fees, costs and other expenses. The Company cannot reasonably estimate the possible loss, if any, or range of loss that may arise from these lawsuits. In January 2011, AGM and AGUS, among other defendants, were named in an additional non-class action case filed in federal court in New York, which alleges violation of New York's Donnelly Act in addition to federal antitrust law: Peconic Landing at Southold, Inc. v. Bank of America, N.A. This case has been consolidated with MDL 1950 for pretrial proceedings. The complaint in this lawsuit generally seeks unspecified monetary damages, interest, attorneys' fees, costs and other expenses. The Company cannot reasonably estimate the possible loss, if any, or range of loss that may arise from this lawsuit. In September 2009, the Attorney General of the State of West Virginia filed a lawsuit (Circuit Ct. Mason County, W. Va.) against Bank of America, N.A. alleging West Virginia state antitrust violations in the municipal derivatives industry, seeking damages and alleging, among other things, a conspiracy to fix the pricing of, and manipulate bids for, municipal derivatives, including GICs. An amended complaint in this action was filed in June 2010, adding a federal antitrust claim and naming AGM (but not AGMH) and AGUS, among other defendants. This case has been removed to federal court as well as transferred to the S.D.N.Y. and consolidated with MDL 1950 for pretrial proceedings. The complaint in this lawsuit generally seeks civil penalties, unspecified monetary damages, interest, attorneys' fees, costs and other expenses. The Company cannot reasonably estimate the possible loss, if any, or range of loss that may arise from this lawsuit. No further updates were reported in the Company's May 10, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2013. Assured Guaranty Ltd. -- http://www.assuredguaranty.com/-- is a Bermuda-based holding company incorporated in 2003 that provides, through its subsidiaries, credit protection products to the United States and international public finance, infrastructure and structured finance markets. The Company applies its credit underwriting judgment, risk management skills and capital markets experience to offer insurance that protects holders of debt instruments and other monetary obligations from defaults in scheduled payments, including scheduled interest and principal payments. BARBARA'S BAKERY: Prelim. Injunction Bid in False Ad Suit Denied ---------------------------------------------------------------- Erin Silber and Olympia Moro initiated related actions as proposed class actions against Barbara's Bakery, Inc. on November 5 and December 11, 2012, respectively. The Plaintiffs allege that the Defendant falsely represents the content and quality of its products as "All Natural," when, in fact, the products contain purportedly "unnatural" ingredients. According to the Plaintiffs, consumers relied on these misrepresentations and were deceived into purchasing the Defendant's products during the period of time beginning September 21, 2006, and continuing through the conclusion of the action. On March 18, 2013, the Plaintiffs moved for a Preliminary Injunction to enjoin the Defendant from continuing to propagate allegedly fraudulent and misleading marketing statements in connection with its cereal products. District Judge William F. Kuntz, II, denied the Plaintiffs' motion in all respects, saying the Plaintiffs are required to show, but have not shown, irreparable injury. Rather, he said, the Plaintiffs may be adequately compensated through monetary damages. Moreover, he added, the Defendant would be severely burdened by having to alter its product packaging on a nationwide scale, which burden would clearly exceed any hardship to the Plaintiffs caused by waiting to adjudicate these cases on their merits. "As the parties are well aware, a Settlement Agreement is pending in Trammell v. Barbara's Bakery, Case No. 3:12-cv-02664 (N.D. Cal. May 23, 2012) (Breyer, J.), an earlier filed case in the Northern District of California (the "Proposed Settlement")," Judge Kuntz further said. "The Proposed Settlement was noticed on both the instant E.D.N.Y. dockets on April 26, 2013, and it includes a motion before the District Court for the Northern District of California to enjoin Moro and Silber. In its briefing before this Court, Defendant notes Trammell was initiated 5 months before Silber (and 6 months before Moro). . . . The parties in Trammell reached a settlement in principle in January 2013 through arm's length negotiations, which resulted in a 45-page settlement agreement with hundreds of pages of exhibits, submitted to the Northern District of California District Court on April 19, 2013. Id. The Proposed Settlement contemplates the same relief requested by Plaintiffs here namely, that the Court enjoin Defendant from using the words "All Natural," "No Artificial Additives," "No Artificial Preservatives," and "No Artificial Flavors" from its product labels and advertisements. . . . Defendant has already agreed to this condition per the Proposed Settlement, and will be under court order to comply if and when the settlement is approved by the Northern District of California court. "Accordingly, although this settlement does not influence this Court's decision that Plaintiffs are not entitled to preliminary injunctive relief, this Court looks forward with interest to the Northern District of California court's ruling on the Trammell parties' motion for preliminary approval of the settlement," Judge Kuntz concluded. The related cases are ERIN SILBER, Plaintiff, v. BARBARA'S BAKERY, INC., Defendant, NOS. 12-CV-5511 (WFK) (RLM), (E.D.N.Y.), and OLYMPIA MORO, Plaintiff, v. BARBARA'S BAKERY, INC., Defendant, 12-CV-6087 (WFK) (RLM), (E.D.N.Y.). Olympia Moro is represented by Juan Eneas Monteverde, Esq. -- jmonteverde@faruqilaw.com -- Nadeem Faruqi, Esq. -- nfaruqi@faruqilaw.com -- & Javier O. Hidalgo, Esq. -- jhidalgo@faruqilaw.com -- at Faruqi & Faruqi, LLP. Barbara's Bakery, Inc., is represented by Barbara A. Lukeman, Esq. -- blukeman@nixonpeabody.com -- at Nixon Peabody LLP, Clement Leo Glynn, Esq. -- cglynn@glynnfinley.com & James Michael Hanlon, Esq. -- jhanlon@glynnfinley.com -- at Glynn & Finley, LLP. A copy of the District Court's June 14, 2013 Decision and Order is available at http://is.gd/sAMgs8from Leagle.com. BEBELOVE: Recalls 5,600 Baby Bath Seats Due to Drowning Hazard -------------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with BeBeLove, of Pico Rivera, California, announced a voluntary recall of about 5,600 Baby Bath Seats. Consumers should stop using this product unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. The bath seats fail to meet federal safety standards, including the requirements for stability. Specifically, the bath seats can tip over, posing a risk of drowning to babies. No incidents or injuries have been reported. This recall includes all BeBeLove E-Zee(TM) Bath Seats. The recalled products are plastic bath seats designed for children between 5 and 10 months old. They have a white base with suction cups on the bottom, a back/arm support, a detachable back support bar that folds under the seat for storage and a detachable T-bar front stabilizer that folds forward for entry. The back/arm support is gray, blue or pink. "Made in Taiwan" and "BBL" are engraved on the underside of the seat base and "BeBeLove" is printed on a sticker in the center of the back/arm support. Picture of the recalled products is available at: http://is.gd/XrF3Sm The recalled products were manufactured in Taiwan and sold at Amazon.com, Diapers.com, Overstock.com and other online retailers from May 2011 through November 2012 for between $19 and $30. Consumers should immediately stop using the recalled bath seats and contact BeBeLove for a full refund. BeBeLove may be reached toll-free at (888) 464-1218, from 9:00 a.m. to 5:00 p.m. Pacific Time Monday through Friday, or visit the firm's Web site at http://www.bebeloveusa.com/and click on the Recall Contact tab at the top of the page for more information. BUY BUY BABY: Recalls Idea Baby Bath Seats Over Drowning Risk ------------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with Buy Buy Baby and importer, Liberty Procurement Co. Inc., of Union, New Jersey, announced a voluntary recall of about 34,000 Idea Baby Bath Seats. Consumers should stop using this product unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. The bath seats fail to meet federal safety standards, including the requirements for stability. Specifically, the bath seats can tip over, posing a risk of drowning to babies. No incidents or injuries have been reported. This recall includes Idea Baby brand infant bath seats. The recalled product is a bath seat designed for children five months to ten months old. The seat is made of pink or blue plastic and has four suction cups on the bottom. An oval-shaped arm rail runs from the seat back and connects two side posts and the seat front post. Two star-shaped spinning toys are on the front of the seat rail above the front post. Between the two spinning toys is a round, inset plastic disc with the words "www.ideababy.com," "Idea Baby" and "Made in Italy." Pictures of the recalled products are available at: http://is.gd/wOMd96 The recalled products were manufactured in Italy and sold at Buy Buy Baby and Bed Bath & Beyond stores and online at buybuybaby.com and bedbathbeyond.com from September 2012 through April 2013 for about $40. Consumers should immediately stop using the recalled bath seats. If purchased at a Buy Buy Baby store or online, consumers should return the bath seats to any Buy Buy Baby store to receive a store credit. If purchased at a Bed Bath & Beyond store, consumers should return the bath seats to the store where purchased to receive a store credit. Buy Buy Baby, toll-free at (877) 328-9222 anytime, or online at http://www.buybuybabycom/or at http://www.bedbathandbeyond.com/then click on Safety and Recalls at the bottom of the homepage of either site for more information. CANADA: Class Action Against RCMP May Take Years Before Trial ------------------------------------------------------------- Canadian Press reports that the lawyer representing a former RCMP officer who claims she was sexually harassed on the job says a proposed class-action lawsuit could take years before it makes it to trial. Janet Merlo, who left the RCMP in 2010 after a 19-year career on the force, has filed a lawsuit that alleges years of name-calling, sexist pranks and requests for sexual favors, and she wants to have the case certified as a class action. But the case is already bogged down by legal arguments from both sides, including a motion from the federal government to strike parts of Ms. Merlo's claim and potentially have the case thrown out because Merlo didn't file it in time. Ms. Merlo's lawyer, David Klein, is accusing the federal government of trying to delay the case, and he says Ottawa and the RCMP should instead sit down with Merlo and other women and negotiate a fair end to the lawsuit. Mr. Klein says roughly 300 current and former RCMP officers have approached him with stories of harassment. A hearing to determine whether to certify the case as a class action won't happen until at least December, and Mr. Klein says it could be years before the case -- if it proceeds -- actually makes it to trial. The RCMP has also issued denials in several sexual abuse and harassment lawsuits against the force and its officers. But an internal report, released last year in response to the number of high-profile allegations of sexual harassment, suggests gender- based harassment was common among the female officers who participated in a study where they detail their experiences of being bullied by colleagues and superiors. In response to the report's recommendations, Deputy Commissioner Craig Callens announced the creation of a 100-member team dedicated to investigating harassment complaints. The highest-profile sexual abuse and harassment lawsuit involves Cpl. Catherine Galliford, a former spokeswoman for the Air India and Robert Pickton cases. Cpl. Galliford filed a lawsuit last year alleging years of abuse by numerous officers. Const. Karen Katz also has a lawsuit alleging a colleague harassed and sexually assaulted her, as well as a second lawsuit that alleges more widespread abuse spanning her entire career. CAPITAL ONE: Gets Favorable Ruling in "Lynch" Debt Collection Suit ------------------------------------------------------------------ BRIAN T. LYNCH, Plaintiff, v. CAPITAL ONE BANK (USA), N.A., et al., Defendants, CIVIL ACTION NO. 12-992, (E.D. Penn.), stems from allegedly fraudulent actions taken by Capital One Bank and Capital One Services and Capital One's collection attorneys against Mr. Lynch in a collection lawsuit within the Bucks County Court of Common Pleas. Mr. Lynch seeks to bring his claim as a class action on behalf of "[a]ll persons who have been the subject of collection law suits [sic] brought by Defendants for which the Defendants attach as corroborative exhibits and/or as evidence written agreements . . ." which are inapplicable. Capital One filed a motion to dismiss the Plaintiff's second amended complaint on September 6, 2012. On June 14, 2013, District Judge Mitchell S. Goldberg granted Capital One's motion but provided the Plaintiff with leave to amend. "Because the second amended complaint fails to assert facts that would plausibly establish an injury that was proximately caused by a misrepresentation by Capital One, Plaintiff's RICO claims will be dismissed. Further, because Plaintiff has not established that he justifiably relied upon the alleged misrepresentation, leading to an injury, Plaintiff's UTPCPL claims shall also be dismissed. Finally, because Plaintiff has agreed to withdraw his claim for breach of contract, we will dismiss this claim as well," ruled Judge Goldberg. "We find, however, that Plaintiff could potentially state a claim if he relied upon Capital One billing statements that calculated payments pursuant to an inapplicable Cardmember Agreement, and if such reliance proximately caused a financial injury to Plaintiff. Accordingly, we will grant leave to amend," he added. Brian T. Lynch is represented by Stuart A. Eisenberg, Esq., at McCullough Eisenberg LLC. Capital One Bank (USA), N.A. and Capital One Services, LLC, are represented by Kevin Batik, Esq. -- kbatik@mcguirewoods.com -- at McGuire Woods, LLP. A copy of the District Court's June 14, 2013 Memorandum Opinion is available at http://is.gd/iTK6tifrom Leagle.com. CARRIAGE SERVICES: Discovery in "Leathermon" Ready to Proceed ------------------------------------------------------------- Discovery in the suit Leathermon, et al. v. Grandview Memorial Gardens, Inc., et al. Case No. 4:07-cv-137 is ready to proceed, according to Carriage Services, Inc.'s May 8, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2013. On August 17, 2007, five plaintiffs filed a putative class action against the current and past owners of Grandview Cemetery in Madison, Indiana, including Carriage Services, Inc.'s subsidiaries that owned the cemetery from January 1997 until February 2001, on behalf of all individuals who purchased cemetery and burial goods and services at Grandview Cemetery. Plaintiffs are seeking monetary damages and claim that the cemetery owners performed burials negligently, breached Plaintiffs' contracts and made misrepresentations regarding the cemetery. The Plaintiffs also allege that the claims occurred prior, during and after the company owned the cemetery. On October 15, 2007, the case was removed from Jefferson County Circuit Court, Indiana to United States District Court, Southern District of Indiana. On April 24, 2009, shortly before Defendants had been scheduled to file their briefs in opposition to Plaintiffs' motion for class certification, Plaintiffs moved to amend their complaint to add new class representatives and claims, while also seeking to abandon other claims. The company, as well as several other Defendants, opposed Plaintiffs' motion to amend their complaint and add parties. In April 2009, two Defendants moved to disqualify Plaintiffs' counsel from further representing Plaintiffs in this action. On June 30, 2010, the Court granted the Defendants' motion to disqualify Plaintiffs' counsel. In that order, the Court gave Plaintiffs 60 days within which to retain new counsel. On May 6, 2010, Plaintiffs filed a petition for writ of mandamus with the Seventh Circuit Court of Appeals seeking relief from the trial court's order of disqualification of counsel. On May 19, 2010, the Defendants responded to the petition of mandamus. On July 8, 2010, the Seventh Circuit denied Plaintiffs' petition for writ of mandamus. Thus, pursuant to the trial court's order, Plaintiffs were given 60 days from July 8, 2010 in which to retain new counsel to prosecute this action on their behalf. Plaintiffs retained new counsel and the trial court granted the newly retained Plaintiffs' counsel 90 days to review the case and advise the Court whether or not Plaintiffs would seek leave to amend their complaint to add and/or change the allegations as are currently stated therein and whether or not they would seek leave to amend the proposed class representatives for class certification. Plaintiffs moved for leave to amend both the class representatives and the allegations stated within the complaint. Defendants filed oppositions to such amendments. The Court issued an order permitting the Plaintiffs to proceed with amending the class representatives and a portion of their claims; however, certain of Plaintiffs' claims have been dismissed. Discovery in this matter will now proceed. CHELSEA & SCOTT: Recalls 1,950 Idea Baby Bath Seats --------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with Chelsea & Scott Ltd., of Lake Bluff, Illinois, announced a voluntary recall of about 1,950 Idea Baby Bath Seats. Consumers should stop using this product unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. The bath seats fail to meet federal safety standards, including the requirements for stability. Specifically, the bath seats can tip over, posing a risk of drowning to babies. No incidents or injuries have been reported. This recall includes Idea Baby brand infant bath seats made for One Step Ahead. The recalled bath seat is designed for children five months to ten months old. The seat is made of white plastic with blue trim and has four suction cups on the bottom. An oval- shaped arm rail runs from the seat back and connects two side posts and the seat front post. Two star-shaped spinning toys are on the front of the seat rail above the front post. Between the two spinning toys is a round, inset plastic disc with the words "www.onestepahead.com," "One Step Ahead," "Idea Baby" and "Made in Italy." Pictures of the recalled products are available at: http://is.gd/RAnkyz The recalled products were manufactured in Italy and sold exclusively at Onestepahead.com from February 2013 through May 2013 for about $40. Consumers should immediately stop using the recalled bath seats and contact Chelsea & Scott for instructions to receive a full refund. Chelsea & Scott may be reached toll-free at (866) 271- 4536, 8:00 a.m. to midnight Monday through Friday and 8:00 a.m. to 5:00 p.m. Saturday and Sunday, or online at http://www.onestepahead.com/,then click on Safety and Recalls at the bottom of the page for more information. CHICAGO TITLE: Judge Ups Award Against Capital Title to $1.3-Mil. ----------------------------------------------------------------- Jeremy Heallen, writing for Law360, reports that a Texas federal judge on June 3 upped an award against Capital Title of Texas LLC to about $1.3 million for its refusal to honor an agreement to defend Chicago Title Insurance Co. against a class action involving premium discounts. U.S. District Judge Sidney A. Fitzwater awarded $615,000 in attorney's fees and costs to Chicago Title while upholding a $748,000 judgment it recovered against Capital after a jury found the latter contractually liable for defense fees and costs Chicago Title incurred warding off the failed class action. CHRYSLER GROUP: Recalls 1.56 Million Older-Model Jeeps ------------------------------------------------------ Christina Rogers of The Wall Street Journal reports that Chrysler Group LLC said June 18, 2013, it would recall 1.56 million older- model Jeeps with fuel tanks positioned behind the rear axle to resolve a dispute with federal regulators who said the vehicles posed an unacceptable risk of fires in rear-end crashes. The decision reverses the auto maker's previous rejection of a regulator's request to recall of as many as 2.7 million Jeeps. The recall covers 1993-1998 model year Jeep Grand Cherokee and 2002-2007 Jeep Liberty sport-utility vehicles. Chrysler said its dealers will install towing hitches on the back of vehicles that don't have them, putting more metal between the fuel tank and the rear of the car to absorb an impact. In addition, Chrysler said dealers would inspect and if needed replace at no cost to the owner non-Chrysler Mopar brand towing hitches on 1.14 million 1999-2004 Jeep Grand Cherokees. The National Highway Traffic Safety Administration said it would continue the nearly three-year-long inquiry, "pending the agency's review of the documents provided by Chrysler in its recall action." In a statement, the agency said "consumers impacted by the safety recall and customer satisfaction campaign should have their vehicles serviced promptly once they received notification." Chrysler, majority owned by Italy's Fiat SpA, reiterated in a statement that its Jeeps aren't defective. In a June 3 letter, NHTSA requested that Chrysler recall the vehicles based on the Government's analysis that the Jeeps had a much higher rate of fire in rear-end crashes than similar midsize SUVs, such as the Ford Explorer and Toyota 4Runner. NHTSA linked the fuel tank placement and design to fiery rear-end collisions that led to 51 deaths. Chrysler, in a rebuttal released earlier this month, said NHTSA's analysis was flawed, and that the Jeeps in question met all federal safety standards, and had better safety records than similar vehicles. A day after the agency issued its recall request, the driver of a 1993 Jeep Grand Cherokee Laredo was killed in Houston when his stalled vehicle was struck from behind by a Dodge Ram 4500 tow truck. "The force of the collision caused the Jeep to catch fire," according to the report prepared by the Harris County Sheriff's Office. The driver "died at the scene due to injuries sustained in the collision," it continued. NHTSA said it "is in communication with the local authorities who are investigating the crash." The agency declined to comment further on the recall request. A Chrysler spokesman said: "Reports indicate this was a high- speed, high-energy crash with a truck." "Notwithstanding those factors, we still are confident in the safety and integrity of our vehicles. Getting hit by a truck at highway speeds is a severe, high-energy crash that usually ends in tragedy." Chrysler's initial decision to reject the recall request was unusual but not unprecedented. Most auto makers agree to conduct recalls at NHTSA's request. Chrysler Chief Executive Sergio Marchionne endorsed the decision to fight NHTSA in a June 4 statement that was accompanied by what Chrysler called a "white paper" detailing what the company said were flaws in NHTSA's analysis. It is unclear how much the recall would cost Chrysler. Dealers said they expect a trailer hitch assembly to cost about $200 or less per vehicle. Clarence Ditlow, executive director for the Washington, D.C.-based nonprofit Center for Auto Safety, which had asked NHTSA to probe the Jeep fuel tank design in August 2010, said regulators should test the Company's recommended fix. "We call on NHTSA to do crash tests of Chrysler's proposed remedy, just as it did with Ford's proposed remedy for the Pinto in 1978," he said. Dealers said ahead of Tuesday's recall decision that potential buyers of Jeep's current models, which have their gas tanks located in front of the rear axle, haven't been put off by the controversy. "Honestly, I haven't been asked once about it," said Blake Helfman, general sales manager at River Oaks Chrysler Jeep Dodge Ram in Houston. "Sales are rocking and rolling for Jeep," he added. CINTAS CORP: 6th Cir. Rejects Gender Bias Class Suit ---------------------------------------------------- Carlyn Kolker, writing for Reuters, reports that the 6th U.S. Circuit Court of Appeals has knocked out a proposed class action against Cintas Corp, which makes corporate uniforms and apparel, over alleged discrimination in the company's hiring. The decision, which gives heavy deference to the Supreme Court's 2011 Dukes v. Wal-Mart decision, affirmed a trial court ruling that denied class certification to female job applicants who said they were rejected from sales representative positions because of their gender. The case had a long trajectory through the court system. Applicant Blanca Nelly Avalos first filed a hiring discrimination case against Cintas in federal court in California in 2004. The case was later transferred to Michigan, where it was consolidated with similar cases, with Tanesha Davis as name plaintiff. U.S. District Judge Sean Cox denied the proposed class in 2010, and the 6th Circuit heard an appeal in January 2012, six months after the Supreme Court in Dukes v. Wal-Mart limited the ability of plaintiffs in a discrimination case to sue as a group. The 6th Circuit took nearly 1-1/2 years to reach its decision, published on May 30. Written by U.S. appeals court Judge Danny Boggs and joined by Judges John Rogers and Jeffrey Sutton, it referenced Dukes v. Wal-Mart 37 times. Citing Justice Antonin Scalia's opinion in the Dukes case, the 6th Circuit said that the plaintiffs in the Cintas case did not meet the bar to show commonality under the federal rules of civil procedures governing class actions. The 6th Circuit also said that the plaintiffs' attempt to show discrimination in the hiring process based on the lack of women hired by the company was not appropriate because it would have denied Cintas's right to present individual defenses. The decision is "a two-pronged reinforcement of Dukes," said Heather Morgan, an attorney at Paul Hastings who represented Cintas. Subjective Criteria The 6th Circuit also rejected the plaintiffs' argument that the company's use of subjective criteria in its hiring process had a so-called disparate impact, adversely affecting women. Gregory Mersol -- gmersol@bakerlaw.com -- a partner at Baker & Hostetler who represents employers in litigation, said that was important for employers because "in almost any area you are going to have 'subjective criteria' in the hiring process." "It's going to remain hard for plaintiffs to attack subjective criteria, but that doesn't mean that employers can rest easy," said Mr. Mersol, who is not involved in the Cintas case. He noted that Cintas continues to face litigation by the Equal Employment Opportunity Commission. Judson Miner of Miner -- jminer@lawmbg.com -- Barnhill & Galland, who represented Davis, did not return a call for comment. The 6th Circuit's Cintas ruling has already been cited as precedent in one of the regional cases that plaintiffs are pursuing against Wal-Mart after the national Dukes case was dismantled. In the regional California case, Wal-Mart on June 3 submitted an opposition to class certification in federal court in San Francisco, referencing the Cintas decision in a section on the standards of proving commonality. The case is Tanesha Davis v. Cintas Corporation, U.S. Court of Appeals for the 6th Circuit, No. 10-1662. For plaintiffs: Judson Miner and Sarah Siskind of Miner, Barnhill & Galland and Morris Baller and Roberta Steele -- rsteele@gbdhlegal.com -- of Goldstein, Demchak, Baller, Borgen & Dardarian. For defendant Cintas Corporation: Nancy Abell -- nancyabell@paulhastings.com -- and Heather Morgan -- heathermorgan@paulhastings.com of Paul Hastings and Rachel Rowe -- rrowe@kmklaw.com -- of Keating, Muething & Klekamp. COLUMBIA BANKING: West Coast Bancorp Merger Suit Consolidated ------------------------------------------------------------- Parties in lawsuits filed over the acquisition of West Coast Bancorp by Columbia Banking System, Inc. agreed to consolidate the lawsuits in the Circuit Court of the State of Oregon for Multnomah County, according to Columbia Banking's May 7, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2013. On October 3, 2012, a class action complaint was filed in the Circuit Court of the State of Oregon for the County of Multnomah against West Coast, its directors, and the Company challenging the merger: Gary M. Klein v. West Coast Bancorp, et al., Case No. 1210-12431. The complaint names as defendants West Coast, all of the current members of West Coast's board of directors, and the Company. The complaint alleges that the West Coast directors breached their fiduciary duties to West Coast and West Coast shareholders by agreeing to the proposed merger at an unfair price. The complaint also alleges that the proposed merger is being driven by an unfair process, that the directors approved provisions in the merger agreement that constitute preclusive deal protection devices, that certain large shareholders of West Coast are using the merger as an opportunity to sell their illiquid holdings in West Coast, and that West Coast directors and officers will obtain personal benefits from the merger not shared equally by other West Coast shareholders. The complaint further alleges that West Coast and the Company aided and abetted the directors' alleged breaches of their fiduciary duties. Thereafter, a second lawsuit challenging the merger was filed in the Circuit Court of the State of Oregon for Clackamas County: Leoni v. West Coast Bancorp et al., Case No. CV12100728. The parties have previously stipulated to the consolidation of the two lawsuits for all purposes in the Circuit Court of the State of Oregon for Multnomah County, and the Company and West Coast have consented to the filing of an unopposed motion to consolidate both lawsuits and extending the time for defendants to file a responsive pleading until July 5, 2013. DERMATECH: McCarthy Tetrault Discusses Class Action Ruling ---------------------------------------------------------- Brandon Kain, Esq. -- bkain@mccarthy.ca -- at McCarthy Tetrault LLP reports that the B.C. Court of Appeal has ruled that plaintiffs in a certified class action cannot compel the production of information about class members from the third party physicians who treated them. The decision in Logan v. Hong, 2013 BCCA 249 is an important reaffirmation of the confidentiality principle inherent in the physician-patient relationship, and a reminder that class proceedings legislation cannot derogate from substantive rights. Background The Logan class action was certified in 2011, as Logan v. Dermatech, Intradermal Distribution Inc., 2011 BCSC 1097. The class consisted of all persons injected with the anti-wrinkle product "Dermalive", who thereafter developed granulomas (or red bumps) in the areas injected. In 2012, the plaintiff obtained an order requiring numerous third party physicians and clinics throughout Canada to provide the names, addresses and other contact information of persons to whom they had administered Dermalive. The purpose of the order was allow the plaintiff to provide the notice of certification required under s. 19 of the B.C. Class Proceedings Act to the class members by direct mailing. The physicians were granted leave to appeal that order to the Court of Appeal. The Logan Decision In reasons dated May 27, 2013, the Court of Appeal set the production order aside, finding that it "impermissibly pierces the physician-patient relationship in circumstances that do not meet the high test for such interference". Saunders J.A., who delivered judgment for the Court, held that the order was problematic even though it did not require disclosure of medical records per se, and related to a cosmetic treatment rather than one of a more sensitive nature (e.g., for mental health, sexual or procreative issues). She also found it irrelevant what proportion of the patients whose names were expected to be produced were members of the class. According Saunders J.A.: . . . [T]he judge erred in principle by elevating the purposes of the Class Proceedings Act and the search for legal redress above the fundamental principle of confidentiality that adheres, for the benefit of the community, to the physician-patient relationship . . . The value of redress through the justice system is significant. However, in my respectful view, one cannot say that recovery of money trumps the rights of the patient to keep private both the nature of medical services received and contact information held by the physician. (paras. 11 and 18) Significance The ruling in Logan will be important in future medical products and pharmaceutical class actions where plaintiffs seek information from third party physicians about the treatments provided to individual class members. The Court of Appeal's reasons are a clear indication that such information cannot be compelled in violation of patient confidentiality rights merely in order to facilitate the procedural aims of class actions. The principle of access to justice, in other words, has limits; it does not enable access to private medical information from third parties regarding patients who may or may not be members of the class. DERMATECH: McMillan Discusses Class Action Ruling ------------------------------------------------- Joan M. Young, Esq. -- joan.young@mcmillan.ca -- at McMillan LLP and Linda G. Yang (Summer Law Student), report that in a case that pitted privacy rights against the efficacy of class notification, the British Columbia Court of Appeal has come down squarely on the side of upholding privacy rights. Two years ago, the British Columbia Supreme Court certified a class proceeding against Dermatech, a French manufacturer, and its Canadian distributors, Intradermal Distribution Inc. and Vivier Pharma Inc., where it was alleged that the Defendants were negligent in the manufacture and distribution of Dermalive, a medical cosmetic product designed to be injected into patients to reduce wrinkles: Logan v Dermatech, Intradermal Distribution Inc. The class was approved for class members who developed granulomas in the areas injected with Dermalive. The potential class was estimated at 600, calculated on a study that indicated 5.5% of Dermalive users developed complications. Just under 11,000 syringes of Dermalive were distributed in Canada before sales ceased in 2007. Upon certification, the Plaintiff proposed to use direct mailing as the most effective way to give notice to class members. To do this, the Plaintiff successfully applied for an order forcing a large number of doctors who may have injected patients with Dermalive to provide the names, addresses, and other contact information of their patients to the class representative. None of the doctors was a party to the class proceedings. The doctors who were the subjects of this order applied successfully to the Court of Appeal to set aside the disclosure order. In analyzing the reasons for granting disclosure, the Court of Appeal held that the need for the representative class plaintiff to provide notice to the class did not meet the high threshold test for piercing the confidentiality of the doctor-patient relationship. In coming to this conclusion, the Court gave full weight to the principles of confidentiality and privacy guarding this relationship. These principles trump both the purposes of the Class Proceedings Act and the value of legal redress (i.e., recovery of money), especially since nearly 95% of those proposed patients to be contacted were not even expected to be class members. The Court added that the outcome would be the same even if the vast majority (e.g., 95%) of the patients were expected to be class members. The key driver for this result was the finding by the Court that maintaining confidentiality and privacy within the doctor-patient relationship is a fundamental principle that can only be overridden where there are serious health or safety concerns, or express legislative provisions compelling the release of information in the public interest. This has been a long-standing and significant part of the common law in Canada. The Court relied on historical case law, such as Halls v Mitchell, where Canada's highest court held that the patient has an absolute right to require that medical information be kept secret, unless there is some paramount reason which overrides it, such as individual or public safety, and McInerney v MacDonald, where it was held that medical information is highly private; going to the personal integrity and autonomy of the individual. The patient has a basic and continuing interest in the usage of and access to this information. The Court of Appeal made reference to the Canadian Medical Association's Code of Ethics which states similar principles in "Privacy and Confidentiality" as part of the "Fundamental Responsibilities" of doctors. The Class Plaintiff attempted to argue that there was a distinction to be drawn between releasing confidential medical records and releasing less sensitive patient contact information. The Court rejected this assertion, noting that the disclosure of contact information would still reveal the fact of a particular medical treatment. The nature of the medical treatment was also not viewed as a useful factor because privacy and confidentiality apply to cosmetic medical treatments as well as to the treatment of other medical issues. Previous decisions in which non-parties have been required to turn over confidential information for the purposes of identifying class members were distinguished by the Court, including Hoy v Medtronics Inc., where a judge ordered the defendant manufacturer to provide the names of the doctors and clinics to whom it had sold its product, noting that the manufacturer did not have a doctor-patient relationship with these doctors and clinics, who in turn were not in any way compelled to provide patient information as a result of the disclosure order. In Dalhuisen v Maxim's Bakery Ltd., where a judge ordered the BC Centre of Disease Control (CDC) to disclose the names and addresses of people infected with salmonella from eating the defendant's products, the Court noted that the information was transmitted to the CDC in the interest of public safety, a long-recognized reason to override doctor-patient confidentiality. In addition, since the CDC is a public body, the release of information was governed by the Freedom of Information and Protection of Privacy Act, which is not applicable to individual doctors. Finally, the Court of Appeal distinguished two cases in which physician-patient confidentiality was not even an issue. The first was Farkas v Sunnybrook & Women's College Health Sciences Centre, an Ontario Superior Court of Justice decision in which only one thing was clear: the information sought related only to class members. The second was Dominguez v Northland Properties Corporation, in which the order to disclose involved information held by the defendant employer and related solely to class members. The Court of Appeal pointed out that confidentiality issues in the employment context do not rise to the level of doctor-patient privilege. The Court of Appeal left two significant issues to be decided: whether ordering non-parties to disclose information is an impermissible transfer of class litigation costs, and whether it is within the jurisdiction of the court to order physicians outside British Columbia to provide the requested information. These interesting questions will be left to another case. DFC GLOBAL: Continues to Defend Class Suits in Canada vs. Units --------------------------------------------------------------- DFC Global Corp. continues to defend its subsidiaries against class action lawsuits pending in Canada, according to the Company's May 10, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2013. In 2003 and 2006, purported class actions were brought against the Company's wholly owned indirect Canadian subsidiary, National Money Mart Company ("NMM"), and Dollar Financial Group, Inc. in the Court of Queen's Bench of Alberta, Canada, on behalf of a class of consumers who obtained short-term loans from NMM in Alberta, alleging, among other things, that the charge to borrowers in connection with such loans was usurious under Canadian federal law (the "Alberta Litigation"). The actions seek restitution and damages, including punitive damages. In April 2010, the plaintiffs in both actions indicated that they would proceed with their claims. Demands for arbitration were served on the plaintiff in each of the actions, and NMM filed motions to enforce the arbitration clause and to stay the actions, which were denied in October 2012. In January 2013, NMM filed appeals of those rulings. To date, neither case has been certified as a class action. The Company is defending these actions vigorously. In 2004, an action was filed against NMM in Manitoba on behalf of a purported class of consumers who obtained short-term loans from NMM. In early February 2012, a separate action was filed against NMM and DFG in Manitoba on behalf of a purported class of consumers which substantially overlaps with the purported class in the 2004 action. The allegations in each of these actions are substantially similar to those in the Alberta Litigation and, to date, neither action has been certified as a class action. If either or both of these actions proceed, the Company intends to seek a stay on the grounds that the plaintiffs entered into arbitration and mediation agreements with NMM with respect to the matters which are the subject of the actions. The Company intends to defend these actions vigorously. As of March 31, 2013, an aggregate of approximately CAD31.9 million is included in the Company's accrued expenses and other liabilities relating to the purported Canadian class action proceedings pending in Alberta and Manitoba and for the settled class actions in Ontario, British Columbia, New Brunswick, Nova Scotia and Newfoundland that were settled by the Company in 2010. The settlements in those class action proceedings consisted of a cash component and vouchers to the class members for future services. The component of the accrual that relates to vouchers is approximately CAD18.4 million, the majority of which is expected to be non-cash. Although the Company believes that it has meritorious defenses to the claims in the purported class proceedings in Alberta and Manitoba and intends vigorously to defend against such remaining pending claims, the ultimate cost of resolution of such claims may exceed the amount accrued at March 31, 2013, and additional accruals may be required in the future. Berwyn, Pennsylvania-based DFC Global Corp. is an international non-bank provider of alternative financial services, principally unsecured short-term consumer loans, secured pawn loans, check cashing, money transfers and reloadable prepaid debit cards, serving primarily unbanked and under-banked consumers through the Company's retail storefront locations and its multiple Internet platforms in nine countries across Europe and North America. DUN & BRADSTREET: Enters Accord to Settle TCPA Violations Suit -------------------------------------------------------------- The Dun & Bradstreet Corporation reached a settlement in the suit Nicholas Martin v. Dun & Bradstreet, Inc. and Convergys Customer Management Group, Inc., No. 12 CV 215, according to Dun & Bradstreet's May 8, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2013. On January 11, 2012, Nicholas Martin filed suit against Dun & Bradstreet, Inc. and Convergys Customer Management Group, Inc. ("Convergys") in the United States District Court for the Northern District of Illinois. The complaint alleges that Defendants violated the Telephone Consumer Protection Act ("TCPA") (47 U.S.C. 227) because Convergys placed a telephone call to Plaintiff's cell phone using an automatic telephone dialing system ("ATDS") and because Dun & Bradstreet, Inc. authorized the telephone call. The TCPA generally prohibits the use of an ATDS to place a call to a cell phone for nonemergency purposes and without the prior express consent of the called party. The TCPA provides for statutory damages of $500 per violation, which may be trebled to $1,500 per violation at the discretion of the court if the plaintiff proves the defendant willfully violated the Act. Plaintiff sought to bring this action as a class action on behalf of all persons who Defendants called on their cell phone using an ATDS, where the Defendants obtained the cell phone number from some source other than directly from the called party, during the period January 11, 2010, to the present. Both Dun & Bradstreet, Inc. and Convergys answered the complaint on March 2, 2012. The matter has settled in principle. The proposed settlement agreement will be subject to approval by the Court. In accordance with ASC 450, "Contingencies," as of March 31, 2013, a reserve has been accrued by the company in this matter, which is reflected in our consolidated financial statements. The amount of such reserve is not material to the company's financial statements and an estimate of the additional loss or range of loss cannot be made. DUN & BRADSTREET: Discovery Starts in O&R Antitrust Lawsuit ----------------------------------------------------------- Formal discovery has begun and is in an early stage in the lawsuit O&R Construction, LLC v. Dun & Bradstreet Credibility Corporation, et al., No. 2:12 CV 02184, according to The Dun & Bradstreet Corporation's May 8, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2013. On December 13, 2012, plaintiff O&R Construction LLC filed a putative class action in the United States District Court for the Western District of Washington against D&B and an unaffiliated entity. The complaint alleges, among other things, that defendants violated the antitrust laws, used deceptive marketing practices to sell the CreditBuilder credit monitoring products and allegedly misrepresented the nature, need and value of the products. The plaintiff purports to sue on behalf of a putative class of purchasers of CreditBuilder and seeks recovery of damages and equitable relief. On February 18, 2013, the Company filed a motion to dismiss the complaint. On April 5, 2013, plaintiff filed an amended complaint in lieu of responding to the motion. The amended complaint dropped the antitrust claims and retained the class action and deceptive practices allegations. The Company filed a new motion to dismiss the amended complaint on May 3, 2013. The parties exchanged initial disclosures and completed the initial case management process in March 2013. Formal discovery has begun and is in an early stage. This litigation is at a very preliminary stage. EBAY INC: Judge Tosses Sellers' Class Action Over Listing Charges ----------------------------------------------------------------- Jon Hood, writing for ConsumerAffairs, reports that a federal judge has dismissed a class action lawsuit that claimed eBay should not have charged sellers each time it renewed listings for their products. The case involves eBay's "Good Til Canceled" feature, which automatically renewed unsold products' listings each month and charged a 35-cent "insertion fee" unless the seller canceled the post or sold the item. Sellers also got hit with charges for any extras they had chosen when listing their items. The lead plaintiff in the case, Richard Noll, claimed eBay didn't disclose the recurring charge and claimed the feature was offered at "no extra cost." U.S. District Judge Edward Davila dismissed charges of fraud, unfair competition and false advertising in 2012 but did not dismiss charges of breach of contract but let some of the other charges stand. Mr. Noll filed an amended complaint in June 2012. eBay then moved to dismiss the complaint, which Judge Davila granted. However, he granted Mr. Noll and his attorneys leave to amend some of the claims in the suit. FOREST RIVER: Recalls 221 Forester and Other Models of Motorhomes ----------------------------------------------------------------- Starting date: June 18, 2013 Type of communication: Recall Subcategory: Motorhome Notification type: Safety Mfr System: Electrical Units affected: 221 Source of recall: Transport Canada Identification number: 2013211 TC ID number: 2013211 On certain motorhomes, the Battery Isolation Manager (located inside the Battery Control Center) may develop a short circuit, which could result in a fire causing property damage and/or personal injury. Correction: Dealers will replace the Battery Isolation Manager with an updated version. Affected products: Makes and models affected ------------------------------------------- Model year Make Model affected ---- ----- -------- FOREST RIVER LEXINGTON 2014 FOREST RIVER SUNSEEKER 2014 FOREST RIVER FORESTER 2014 FOREST RIVER SOLERA 2014 FREDDIE MAC: Discovery Proceeds in "OPERS" Securities Suit ---------------------------------------------------------- Discovery is ongoing in the putative securities class action Ohio Public Employees Retirement System ("OPERS") vs. Freddie Mac, Syron, et al., according to Federal Home Loan Mortgage Corporation's May 8, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2013. This putative securities class action lawsuit was filed against Freddie Mac and certain former officers on January 18, 2008, in the U.S. District Court for the Northern District of Ohio purportedly on behalf of a class of purchasers of Freddie Mac stock from August 1, 2006 through November 20, 2007. The plaintiff alleges that the defendants violated federal securities laws by making false and misleading statements concerning our business, risk management and the procedures Freddie Mac put into place to protect the company from problems in the mortgage industry. The plaintiff seeks unspecified damages and interest, and reasonable costs and expenses, including attorney and expert fees. On April 10, 2008, the Court appointed OPERS as lead plaintiff and approved its choice of counsel. On September 2, 2008, defendants filed motions to dismiss plaintiff's amended complaint. On November 7, 2008, the plaintiff filed a second amended complaint. On November 19, 2008, the Court granted Federal Housing Finance Agency's motion to intervene in its capacity as Conservator. On April 6, 2009, defendants moved to dismiss the second amended complaint. On January 23, 2012, the Court denied defendants' motions to dismiss. On March 28, 2012, the plaintiff filed its third amended complaint, which included allegations based on a non-prosecution agreement entered into between Freddie Mac and the SEC on December 15, 2011. On April 26, 2012, defendants filed motions to dismiss the third amended complaint. The Court denied the motions on May 25, 2012. On August 17, 2012, plaintiff filed a motion to certify a class of plaintiffs comprised of purchasers of Freddie Mac stock from August 1, 2006 through November 20, 2007, which Freddie Mac has opposed. On April 10, 2013, the presiding judge in the case recused himself, and the case was assigned to a different judge. Discovery is ongoing. FREDDIE MAC: No Summary Judgment Yet in Kuriakose Suit ------------------------------------------------------ The U.S. District Court for the Southern District of New York is yet to rule on motions for class certification or summary judgment in Kuriakose vs. Freddie Mac, Syron, Piszel and Cook, according to Federal Home Loan Mortgage Corporation's May 8, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2013. Another putative class action lawsuit was filed against Freddie Mac and certain former officers on August 15, 2008 in the U.S. District Court for the Southern District of New York for alleged violations of federal securities laws purportedly on behalf of a class of purchasers of Freddie Mac stock from November 21, 2007 through August 5, 2008. The plaintiffs claimed that defendants made false and misleading statements about Freddie Mac's business that artificially inflated the price of Freddie Mac's common stock, and sought unspecified damages, costs, and attorneys' fees. On February 6, 2009, the Court granted Federal Housing Finance Agency's motion to intervene in its capacity as Conservator. On May 19, 2009, plaintiffs filed an amended consolidated complaint, purportedly on behalf of a class of purchasers of Freddie Mac stock from November 20, 2007 through September 7, 2008. Defendants filed motions to dismiss the complaint on February 24, 2010. On March 30, 2011, the Court granted without prejudice the defendants' motions to dismiss all claims, and allowed the plaintiffs the option to file a new complaint, which they did on July 18, 2011. On October 13, 2011, the defendants filed motions to dismiss the second amended consolidated complaint. On February 17, 2012, the plaintiffs served a motion seeking leave to file a third amended consolidated complaint based on the non-prosecution agreement entered into between Freddie Mac and the SEC on December 15, 2011. On September 24, 2012, the Court granted with prejudice defendants' motions to dismiss plaintiffs' second amended complaint in its entirety, denied plaintiffs' motion to file a third amended complaint, and directed that the case be closed. Judgment was entered in favor of the defendants on September 27, 2012. On October 26, 2012, plaintiffs filed a notice of appeal in the U.S. Court of Appeals for the Second Circuit. At present, it is not possible for the company to predict the probable outcome of this lawsuit or any potential effect on Freddie Mac's business, financial condition, liquidity, or results of operations. In addition, it is unable to reasonably estimate the possible loss or range of possible loss in the event of an adverse judgment in the foregoing matter due to the following factors, among others: the inherent uncertainty of pre-trial litigation in the event plaintiffs' appeal is granted and the case is remanded to the District Court; and the fact that the parties have not briefed and the District Court has not yet ruled upon motions for class certification or summary judgment. In particular, absent the certification of a class, the identification of a class period, and the identification of the alleged statement or statements that survive dispositive motions, we cannot reasonably estimate any possible loss or range of possible loss. FREDDIE MAC: May Have to Indemnify Goldman et al. in IPO Suit ------------------------------------------------------------- Federal Home Loan Mortgage Corporation may face a possible indemnification request in a suit against Goldman, Sachs & Co., J.P. Morgan Chase & Co., and Citigroup Global Markets Inc., according to Freddie Mac's May 8, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2013. On December 16, 2011, the Securities and Exchange Commission announced that it had charged three former executives of Freddie Mac with securities laws violations. These executives are former Chairman of the Board and Chief Executive Officer Richard F. Syron, former Executive Vice President and Chief Business Officer Patricia L. Cook, and former Executive Vice President for the single-family guarantee business Donald J. Bisenius. By letter dated October 17, 2008, Freddie Mac received formal notification of a putative class action securities lawsuit, Mark vs. Goldman, Sachs & Co., J.P. Morgan Chase & Co., and Citigroup Global Markets Inc., filed on September 23, 2008, in the U.S. District Court for the Southern District of New York, regarding the company's November 29, 2007 public offering of $6 billion of 8.375% Fixed to Floating Rate Non-Cumulative Perpetual Preferred Stock. On January 29, 2009, a plaintiff filed a putative class action lawsuit in the U.S. District Court for the Southern District of New York styled Kreysar vs. Syron, et al. On April 30, 2009, the Court consolidated the Mark case with the Kreysar case, and the plaintiffs filed a consolidated class action complaint on July 2, 2009. The consolidated complaint alleged that three former Freddie Mac officers, certain underwriters and Freddie Mac's auditor violated federal securities laws by making material false and misleading statements in connection with the company's November 29, 2007 public offering of $6 billion of 8.375% Fixed to Floating Rate Non-Cumulative Perpetual Preferred Stock. The complaint further alleged that certain defendants and others made additional false statements following the offering. The complaint named as defendants Syron, former Executive Vice President and Chief Financial Officer Anthony S. Piszel, Cook, certain underwriters, and PricewaterhouseCoopers LLP. After a series of motions and amendments to the complaint, only Syron and Piszel remain as defendants. On April 4, 2011, Piszel filed a motion for partial judgment on the pleadings. The Court granted that motion on April 28, 2011. The plaintiffs moved for class certification, which motion was ultimately denied by the Court. On May 31, 2012, the U.S. Court of Appeals for the Second Circuit denied plaintiffs' motion for leave to appeal the denial of class certification. In August 2012, plaintiffs sought leave to file another motion for class certification, which request the Court denied on September 25, 2012. Freddie Mac is not named as a defendant in the consolidated lawsuit, but the underwriters previously gave notice to Freddie Mac of their intention to seek full indemnity and contribution under the underwriting agreement in this case, including reimbursement of fees and disbursements of their legal counsel. FREDDIE MAC: Lawsuits Over Real Estate Transfer Taxes Stayed ------------------------------------------------------------ Lawsuits filed against Freddie Mac and Fannie Mae over real estate transfer taxes have been stayed pending an appeal to the U.S. Court of Appeals for the Sixth Circuit of a summary judgment rendered against Federal Housing Finance Agency as conservator, according to Federal Home Loan Mortgage Corporation's May 8, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2013. Beginning in 2011 in Michigan, states have been filing lawsuits challenging Freddie Mac and Fannie Mae's statutory exemption from real estate transfer taxes imposed on the transfer of real property for which Freddie Mac or Fannie Mae was the grantor or grantee. Currently, approximately 45 lawsuits are pending in 21 states and the District of Columbia. The company received favorable rulings in several cases, and one unfavorable ruling (in Michigan, as discussed below). Several appeals are pending. Plaintiffs in these cases are generally seeking a declaration that Freddie Mac and Fannie Mae are not exempt from transfer taxes, damages for unpaid transfer taxes, as well as other items, which may include penalties, interest, liquidated penalties, pre- judgment interest, costs and attorneys' fees. On June 20, 2011, Oakland County (Michigan) and the Oakland County Treasurer filed a lawsuit against Freddie Mac and Fannie Mae in the U.S. District Court for the Eastern District of Michigan alleging that the enterprises failed to pay real estate transfer taxes on transfers of real property in Oakland County where the enterprises were the grantors. Federal Housing Finance Agency later intervened as Conservator for Freddie Mac and Fannie Mae. On November 10, 2011, Genesee County (Michigan) and the Genesee County Treasurer filed a class action lawsuit in the same court on behalf of itself and the other 82 Michigan counties raising similar claims against FHFA (as Conservator), Freddie Mac, and Fannie Mae. The Court later certified the class, with two Michigan counties opting out. The Michigan Department of Attorney General and the Michigan Department of Treasury intervened in both actions against the defendants. In both actions, FHFA, Freddie Mac and Fannie Mae asserted that they were not liable for the transfer taxes based on federal statutory tax exemptions applicable to each. On March 23, 2012, the Court granted summary judgment against FHFA (as Conservator), Freddie Mac, and Fannie Mae in both actions, determining that the statutory exemptions did not exempt them from Michigan's state and county transfer tax. The plaintiffs in both cases subsequently filed amended complaints to cover purportedly taxable transactions where Freddie Mac and Fannie Mae received property as grantees through a Michigan Sheriff's deed or a deed in lieu of foreclosure. FHFA (as Conservator), Freddie Mac, and Fannie Mae filed an appeal to the U.S. Court of Appeals for the Sixth Circuit, and the District Court has stayed the actions pending resolution of the appeal. The District Court has not yet addressed the amount of damages the plaintiffs contend are owed in either case. GENERAL MOTORS: Recalls 3,456 GMC, Chevrolet, Buick and Saab SUVs ----------------------------------------------------------------- Starting date: June 17, 2013 Type of communication: Recall Subcategory: SUV Notification type: Safety Mfr System: Electrical Units affected: 3,456 Source of recall: Transport Canada Identification number: 2013210 TC ID number: 2013210 Manufacturer recall number: 12180 On certain vehicles, the driver's door module could short circuit and fail. An electrical short could result in a vehicle fire causing property damage and/or personal injury. Correction: Dealers will test the driver's window and door lock switches for proper operation. If the switches function correctly, a protective coating will be applied to the door module. If the switches do not function properly, the door module will be replaced. Note: This recall affects vehicles not covered by 2012- 282 due to their geographic location. Affected products: Makes and models affected ---------------------------------------------------- Make Model Model year(s) affected ---- ----- ---------------------- GMC ENVOY 2006, 2007 CHEVROLET TRAILBLAZER 2006, 2007 CHEVROLET TRAILBLAZER EXT 2006 GMC ENVOY XL 2006 BUICK RAINIER 2006, 2007 SAAB 9-7X 2005, 2006, 2007 HANSEN MEDICAL: Securities Suit Parties Yet to File Settlement -------------------------------------------------------------- Parties in the consolidated securities lawsuit against Hansen Medical, Inc., are yet to file their settlement documents, according to the Company's May 10, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2013. Following the Company's October 19, 2009 announcement that it would restate certain of its financial statements, a securities class action lawsuit was filed on October 23, 2009, in the United States District Court for the Northern District of California, naming the Company and certain of its now former officers, Curry v. Hansen Medical, Inc. et al., Case No. 09-05094. The complaint asserts claims for violation of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 on behalf of a putative class of purchasers of Hansen stock between May 1, 2008, and October 18, 2009, inclusive, and alleges, among other things, that the defendants made false and/or misleading statements and/or failed to make disclosures regarding the Company's financial results and compliance with GAAP while improperly recognizing revenue; that these misstatements and/or nondisclosures resulted in overstatement of Company revenue and financial results and/or artificially inflated the Company's stock price; and that following the Company's October 19, 2009 announcement, the price of the Company's stock declined. On November 4, 2009, and November 13, 2009, substantively identical complaints were filed in the Northern District of California by other purported Hansen stockholders asserting the same claims on behalf of the same putative class of Hansen stockholders, Livingstone v. Hansen Medical, Inc. et al., Case No. 09-05212 and Prenter v. Hansen Medical, Inc., et al., Case No. 09- 05367. All three complaints seek certification as a class action and unspecified compensatory damages plus interest and attorneys fees. On December 22, 2009, two purported Hansen stockholders, Mina and Nader Farr, filed a joint application for appointment as lead plaintiffs and for consolidation of the three actions. On February 25, 2010, the Court issued an order granting Mina and Nader Farr's application for appointment as lead plaintiffs and consolidating the three securities class actions. On July 15, 2010, the Court entered an order granting the lead plaintiffs' motion for leave to file a second amended complaint. The Lead plaintiffs' second amended complaint, in addition to alleging that shareholders suffered damages as a result of the decline in the Company's stock price following the October 19, 2009 announcement, also alleges that shareholders suffered additional damages as the result of share price declines on July 28, 2009, July 31, 2009, January 8, 2009, July 6, 2009, and August 4, 2009, all of which lead plaintiffs allege were caused by the disclosure of what they claim was previously misrepresented information. The Defendants filed their motion to dismiss the second amended complaint on October 13, 2010. The Court granted the Defendants' motion to dismiss with leave to amend on August 25, 2011. The Plaintiffs' third amended complaint was filed on October 18, 2011. The Defendants filed their motions to dismiss on January 9, 2012. On August 10, 2012, the Court denied in part and granted in part Defendants' motions to dismiss. On January 4, 2013, lead plaintiffs sought leave to amend their complaint to add certain of Hansen's current and former directors and Hansen's former auditor. Hansen filed an opposition to the lead plaintiffs' motion on February 11, 2013. On May 9, 2013, the parties entered a stipulation of settlement pursuant to which the plaintiffs will receive an aggregate of $8.5 million, $4 million of which will be funded in cash by the Company's insurer and other sources. The Company will fund the remaining portion by issuing $4.25 million worth of the Company's common stock, the number of shares to be determined based on the average closing price of the common stock for the 10 trading days preceding final court approval of the settlement of the class action, and paying $250,000 in cash. The Company recorded a loss on litigation settlement of $4.5 million for the three months ended March 31, 2013. A corresponding liability is included in the accompanying condensed consolidated balance sheet as of March 31, 2013. The settlement is subject to court approval. While the timing of the court decision is uncertain, the Company expects to receive court approval of the settlement within approximately six months. About Hansen Medical, Inc. Hansen Medical, Inc., based in Mountain View, California, is the global leader in intravascular robotics, developing products and technology designed to enable the accurate positioning, manipulation and control of catheters and catheter-based technologies. HEALTH NET: Obtains Final Approval of "Eddings" Suit Settlement --------------------------------------------------------------- District Judge Josephine Staton Tucker granted final approval of a settlement in the class action captioned SHAUNETTA EDDINGS, individually and on behalf of a class of similarly situated individuals, Plaintiff, v. HEALTH NET, INC., et al. Defendants, CASE NO. CV 10-1744-JST (RZX), (C.D. Cal.). Under the Settlement Agreement, the Defendants have agreed to pay $600,000 as the total settlement fund, without admitting any liability, and to deposit the money with a settlement administrator following approval. Each Class Member's share of the Settlement is based on a pro rata share of the funds based on that Class Member's time worked within the relevant time period, his or her rate of pay, and multipliers including whether he or she worked in California, whether he or she opted in to the FLSA claim, and his or her standing as a terminated employee within the applicable statute of limitations period to maintain a claim for penalties under California Labor Code Section 203. The average award provided to each Class Member will exceed $150. The Settlement further provides that funds remaining after distribution to Class Members, including checks uncashed after 320 days and checks returned as undeliverable, are to be distributed in cy pres to the Legal Aid Society-Employment Law Center. An "enhancement award" of up to $6,000 for Plaintiff Shaunetta Eddings, based on her service as class representative and in consideration for her execution of a general release, is approved. The Court approves $25,000 for Simpluris, as Settlement Administrator. The Court further approved an award of attorneys' fees in the amount of $150,000. Class Members who do not opt-out agree to release the Defendants from liability for all unpaid wage claims related to rounding of time, including self-rounding, during the period before July 18, 2008, excluding the FLSA claims of Class Members who did not affirmatively opt-in to this lawsuit. USA, Plaintiff, is represented by Alka Sagar, Esq. -- alka.sagar@usdoj.gov -- of AUSA - Office of US Attorney & Steven R Welk, Esq. -- Steven.Welk@usdoj.gov -- AUSA - Office of US Attorney. A copy of the District Court's June 13, 2013 Order is available at http://is.gd/1ub3Xjfrom Leagle.com. HSBC USA: Readies Portion of Settlement in Antitrust Suit --------------------------------------------------------- HSBC USA Inc. deposited its portion of the class settlement amount into an escrow account for payment in In re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation in the event the class settlement is finally approved, according to the company's May 7, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2013. Since June 2005, HSBC Bank USA, HSBC Finance Corporation, HSBC North America and HSBC, as well as other banks and Visa Inc. and MasterCard Incorporated, have been named as defendants in four class actions filed in Connecticut and the Eastern District of New York: Photos Etc. Corp. et al v. Visa U.S.A., Inc., et al.(D. Conn. No. 3:05-CV-01007 (WWE)); National Association of Convenience Stores, et al. v. Visa U.S.A., Inc., et al.(E.D.N.Y. No. 05-CV 4520 (JG)); Jethro Holdings, Inc., et al. v. Visa U.S.A., Inc. et al. (E.D.N.Y. No. 05-CV-4521(JG)); and American Booksellers Asps' v. Visa U.S.A., Inc. et al. (E.D.N.Y. No. 05-CV- 5391 (JG)). Numerous other complaints containing similar allegations (in which no HSBC entity is named) were filed across the country against Visa Inc., MasterCard Incorporated and other banks. Various individual (non-class) actions were also brought by merchants against Visa Inc., and MasterCard Incorporated. These class and individual merchant actions principally allege that the imposition of a no-surcharge rule by the associations and/or the establishment of the interchange fee charged for credit card transactions causes the merchant discount fee paid by retailers to be set at supracompetitive levels in violation of the Federal antitrust laws. These suits were consolidated and transferred to the Eastern District of New York. The consolidated case is: In re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation, MDL 1720, E.D.N.Y. ("MDL 1720"). On February 7, 2011, MasterCard Incorporated, Visa Inc., the other defendants, including HSBC Bank USA, and certain affiliates of the defendants entered into settlement and judgment sharing agreements (the "Sharing Agreements") that provide for the apportionment of certain defined costs and liabilities that the defendants, including HSBC Bank USA and our affiliates, may incur, jointly and/or severally, in the event of an adverse judgment or global settlement of one or all of these actions. The parties engaged in a mediation process and the putative class plaintiffs filed a class settlement agreement with the District Court on October 19, 2012, and the District Court entered an order preliminarily approving the class settlement on November 27, 2012. The class settlement is subject to final approval by the District Court. Pursuant to the class settlement agreement and the Sharing Agreements, the company deposited its portion of the class settlement amount into an escrow account for payment in the event the class settlement is approved. On October 22, 2012, a settlement agreement with the individual merchant plaintiffs became effective, and pursuant to the Sharing Agreements the company deposited its portion of that settlement amount into an escrow account. HSBC USA: Moves to Consolidate Checking Account Overdraft Suit -------------------------------------------------------------- HSBC USA Inc. filed a motion with the Judicial Panel on Multidistrict Litigation to consolidate all of federal complaints related to "overdraft fees" on checking accounts to the Eastern District of New York for coordinated or consolidated pretrial proceedings, according to the company's May 7, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2013. In February 2011, an action captioned Ofra Levin et al v. HSBC Bank USA, N.A. et al (E.D.N.Y. 11-CV-0701) was filed in the Eastern District of New York against HSBC Bank USA, HSBC USA and HSBC North America on behalf of a putative nationwide class and New York sub-class of customers who allegedly incurred overdraft fees due to the posting of debit card transactions to deposit accounts in high-to-low order. The plaintiffs (the "Levin Plaintiffs") dismissed the federal court action after the case was transferred to the multi-district litigation pending in Miami, Florida, and re-filed the case in New York state court on March 1, 2011. The action captioned Ofra Levin et al v. HSBC Bank USA, N.A. et al. (N.Y. Sup. Ct. 650562/11), alleges a variety of common law claims on behalf of a New York class, including breach of contract and the implied covenant of good faith and fair dealing, conversion and unjust enrichment, and a violation of the New York deceptive acts and practices statute. In May 2011, the company filed a motion to dismiss the complaint. The court denied in part and granted in part the motion to dismiss, granting the Levin Plaintiffs leave to amend their complaint with regard to their claims for conversion and unjust enrichment. On July 26, 2012, the company appealed the court's order. The appeal is still pending. On August 27, 2012, the Levin Plaintiffs filed an amended complaint asserting the same causes of action. In October 2012, counsel for the Levin Plaintiffs sought to withdraw as their counsel and to amend the complaint to, among other things, substitute a new named plaintiff, Darek Jura ("Jura") and amend the case caption. The court granted counsel's requests-they are no longer counsel for the Levin Plaintiffs, Jura has been added as a named plaintiff and the action is now captioned In Re HSBC Bank USA, N.A. Checking Account Overdraft Litigation (the "Overdraft Litigation"). On November 9, 2012, Jura filed a motion for class certification. HSBC's deadline to respond to the motion for class certification was May 2, 2013. On December 3, 2012, the Levin Plaintiffs, represented by new counsel, filed a motion to dismiss the Overdraft Litigation solely on the basis that the Levin Action is pending. The Levin Plaintiffs' motion to dismiss was denied on April 2, 2013. On November 19, 2012, the Levin Plaintiffs filed a new action captioned Ofra Levin et al. v. HSBC Bank USA, N.A. et al. (E.D.N.Y. 12-CV-5696) in the Eastern District of New York (the "Levin Action"). The Levin Action seeks relief for a nationwide class and asserts the same claims as in the Overdraft Litigation as well as alleges that deposited funds are not made available pursuant to the company's funds availability disclosures. On December 21, 2012, the Levin Plaintiffs filed their first amended complaint. On February 11, 2013, the company filed a motion to dismiss the complaint. The motion is fully briefed and oral argument has been requested. On March 13, 2013, the Levin Plaintiffs filed a motion for leave to file a second amended complaint. This motion is also currently pending. On December 18, 2012, Jura filed a new action captioned Darek Jura v. HSBC Bank USA, N.A. et al. (E.D.N.Y. 12-CV-6224) in the Eastern District of New York (the "Jura Action"). On December 28, 2012, Jura filed a motion to consolidate this action with the Levin Action. Jura also filed a motion to appoint his counsel as interim class counsel. The company filed a non-opposition to the motion to consolidate and motion to appoint Jura's counsel as interim class counsel. The Levin Plaintiffs filed a partial opposition to the motion to consolidate-they do not oppose consolidation, but seek to have their own attorney appointed as interim lead class counsel. The motions are still pending. On February 26, 2013, the company filed a motion to dismiss the complaint and it will be fully briefed on April 16, 2013. Oral argument has been requested for the motion to dismiss. On February 20, 2013, an action captioned Hanes v. HSBC Bank USA, N.A. (E.D. Va. 13-CV-00229) was filed in the Eastern District of Virginia only as to HSBC Bank USA. The company is required to respond to the complaint by April 15, 2013. On April 3, 2013, the company filed a motion with the Judicial Panel on Multidistrict Litigation to consolidate all of the federal actions to the Eastern District of New York for coordinated or consolidated pretrial proceedings ("MDL Petition"). Plaintiffs response to the MDL Petition were due on April 25, 2013. On April 4, 2013, the company filed motions to stay the federal actions while the MDL Petition is pending. HSBC USA: Still Faces Lawsuits Over Lender-Placed Insurance ----------------------------------------------------------- HSBC USA Inc. continues to face new lawsuits related to lender- placed insurance, according to the company's May 7, 2013, Form 10- Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2013. Lender-placed insurance involves a lender obtaining an insurance policy (hazard or flood insurance) on a mortgaged property when the borrower fails to maintain their own policy. The cost of the lender-placed insurance is then passed on to the borrower. Industry practices with respect to lender-placed insurance are receiving heightened regulatory scrutiny from both federal and state agencies. Beginning in October 2011, a number of mortgage servicers and insurers, including our affiliate, HSBC Insurance (USA) Inc., received subpoenas from the New York Department of Financial Services (the "NYDFS") with respect to lender-placed insurance activities dating back to September 2005. HSBC USA Inc. said it will continue to provide documentation and information to the NYDFS that is responsive to the subpoena. Additionally, in March 2013, the Massachusetts Attorney General issued a Civil Investigative Demand ("MA LPI CID") to HSBC Mortgage Corporation (USA) seeking information about lender-placed insurance activities. The company anticipates providing documentation and information responsive to the MA LPI CID as well. Between June 2011 and April 2013, several putative class actions related to lender-placed insurance were filed against various HSBC U.S. entities, including actions against HSBC USA, Inc. and certain of our subsidiaries captioned Montanez et al v. HSBC Mortgage Corporation (USA) et al. (E.D. Pa. No. 11-CV-4074); West et al. v. HSBC Mortgage Corporation (USA) et al. (South Carolina Court of Common Pleas, 14th Circuit No. 12-CP-00687); Weller et al. v. HSBC Mortgage Services, Inc. et al. (D. Col. No. 13-CV- 00185); and Hoover et al. v. HSBC Bank USA, N.A. et al. (N.D.N.Y. 13-CV-00149); and Lopez v. HSBC Bank USA, N.A. et al. (S.D. Fla 13-CV-21104). These actions relate primarily to industry-wide practices, and include allegations regarding the relationships and potential conflicts of interest between the various entities that place the insurance, the value and cost of the insurance that is placed, back-dating policies to the date the borrower allowed it to lapse, self-dealing and insufficient disclosure. Private Mortgage Insurance Matters Private Mortgage Insurance ("PMI") is insurance required to be obtained by home purchasers who provide a down payment less than a certain percentage threshold of the purchase price, typically 20 percent. The insurance generally protects the lender against a default on the loan. In January 2013, a putative class action related to PMI was filed against various HSBC U.S. entities, including HSBC USA, Inc and certain of our subsidiaries captioned Ba v. HSBC Bank USA, N.A. et al (E.D. Pa. No. 2:13-cv-00072PD). This action relates primarily to industry-wide practices and includes allegations regarding the relationships and potential conflicts of interest between the various entities that place the insurance, self-dealing, insufficient disclosures and improper fees. HSBC USA: Court Yet to Rule on Plaintiffs' Appeal in Madoff Suit ---------------------------------------------------------------- A decision is expected this year on the appeal by plaintiffs against the dismissal of all remaining claims against HSBC defendants in In re Herald, Primeo and Thema Funds Securities Litigation, according HSBC USA Inc.'s May 7, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2013. In December 2008, Bernard L. Madoff ("Madoff") was arrested for running a Ponzi scheme and a trustee was appointed for the liquidation of his firm, Bernard L. Madoff Investment Securities LLC ("Madoff Securities"), an SEC-registered broker-dealer and investment adviser. Various non-U.S. HSBC companies provided custodial, administration and similar services to a number of funds incorporated outside the United States whose assets were invested with Madoff Securities. Plaintiffs (including funds, funds investors and the Madoff Securities trustee) have commenced Madoff-related proceedings against numerous defendants in a multitude of jurisdictions. Various HSBC companies have been named as defendants in suits in the United States, Ireland, Luxembourg and other jurisdictions. Certain suits (which include U.S. putative class actions) allege that the HSBC defendants knew or should have known of Madoff's fraud and breached various duties to the funds and fund investors. In November 2011, the District Court judge overseeing three related putative class actions in the Southern District of New York, captioned In re Herald, Primeo and Thema Funds Securities Litigation (S.D.N.Y. Nos. 09-CV-0289 (RMB), 09-CV-2558 (RMB)), dismissed all claims against the HSBC defendants on forum non conveniens grounds, but temporarily stayed this ruling as to one of the actions against the HSBC defendants -- the claims of investors in Thema International Fund plc -- in light of a proposed amended settlement agreement between the lead plaintiff in that action and the relevant HSBC defendants (including, subject to the granting of leave to effect a proposed pleading amendment, HSBC Bank USA). In December 2011, the District Court lifted this temporary stay and dismissed all remaining claims against the HSBC defendants, and declined to consider preliminary approval of the settlement. In light of the District Court's decisions, HSBC has terminated the settlement agreement. The Thema plaintiff contests HSBC's right to terminate. Plaintiffs in all three actions filed notices of appeal to the U.S. Circuit Court of Appeals for the Second Circuit, where the actions are captioned In re Herald, Primeo and Thema Funds Securities Litigation (2nd Cir, Nos. 12-156, 12-184, 12-162). Briefing in that appeal was completed in September 2012 and oral argument was held in April 2013. A decision is expected in 2013. INNOVATION VENTURES: Hermida Suit Stayed Pending Transfer to MDL ---------------------------------------------------------------- The matter JUNIOR HERMIDA, on behalf of himself and all others similarly situated Plaintiff, v. INNOVATION VENTURES, LLC, Defendant, CASE NO. 2:13-CV-47-FTM-38UA, (M.D. Fla.), came before the Court on an agreed motion to stay proceedings pending transfer to multidistrict litigation filed on March 6, 2013. The Parties sought a stay of all proceedings pending transfer and coordination of the action with the Multidistrict Litigation case in the Central District of California concerning other marketing and sale of the Defendant's product, 5-Hour Energy(R) cases. District Judge Sheri Polster Chappell ruled that the relief will be granted for a period of time to allow a decision of the JPML regarding transfer. Specifically, Judge Chappell concluded that: (1) the Agreed Motion to Stay Proceedings Pending Transfer to Multidistrict Litigation is granted to the extent that the case is stayed for a period of 90 days from the date of the Order. If the case is not otherwise transferred within the time period, the Parties may seek to continue the stay upon expiration of the time period. (2) as the matter is stayed, the Plaintiff's Unopposed Motion for Extension of Time for Plaintiff to File Motion for Class Certification is denied without prejudice. The Plaintiff may re-file the request for extension of time if the action is not transferred to the Central District of California for consolidated pretrial proceedings. Junior Hermida is represented by Charles E. Schaffer, Esq. -- cschaffer@lfsblaw.com -- at Levin Fishbein Sedran and Berman, John R Climaco, Esq. -- jrclim@climacolaw.com -- and John A Peca, Jr., Esq. -- japeca@climacolaw.com -- at Climaco Wilcox Peca Tarantino and Garofoli Co LPA, & Jordan Lucas Chaikin, Esq., at Parker Waichman LLP. Innovation Ventures LLC is represented by Amy Lane Hurwitz, Esq. -- ahurwitz@carltonfields.com -- & David Matthew Allen, Esq. -- mallen@carltonfields.com -- at Carlton Fields PA. A copy of the District Court's June 3, 2013 Order is available at http://is.gd/nQI7pWfrom Leagle.com. JUNIPER NETWORKS: Dismissal Sought in Retirement System's Suit -------------------------------------------------------------- A motion to dismiss the securities suit City of Royal Oak Retirement System v. Juniper Networks, Inc., et al., Case No. 11-cv-04003-LHK, is before the United States District Court for the Northern District of California, according to Juniper Networks, Inc.'s May 8, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2013. On August 15, 2011, a purported securities class action lawsuit, captioned City of Royal Oak Retirement System v. Juniper Networks, Inc., et al., Case No. 11-cv-04003-LHK, was filed in the United States District Court for the Northern District of California naming the Company and certain of its officers and directors as defendants. The complaint alleges that the defendants made false and misleading statements regarding the Company's business and prospects. Plaintiffs seek an unspecified amount of monetary damages on behalf of the purported class. On January 9, 2012 the Court appointed City of Omaha Police and Fire Retirement System and City of Bristol Pension Fund as lead plaintiffs. Lead plaintiffs allege that defendants made false and misleading statements about the Company's business and future prospects, and failed to adequately disclose the impact of certain changes in accounting rules. Lead plaintiffs purport to assert claims for violations of Sections 10 (b), 20(a) and 20A of the Securities Exchange Act of 1934 and SEC Rule 10b-5 on behalf of those who purchased or otherwise acquired Juniper Networks' common stock between July 20, 2010 and July 26, 2011, inclusive. On March 14, 2012, Defendants filed motions to dismiss lead plaintiffs' amended complaint. On July 23, 2012, the Court issued an order dismissing the action and giving lead plaintiffs leave to file an amended complaint. Lead plaintiffs filed their second amended complaint on August 20, 2012. Defendants filed a motion to dismiss the second amended complaint on September 17, 2012, and lead plaintiffs filed their opposition on October 22, 2012. Defendants filed their reply brief on November 8, 2012. A hearing on the motion to dismiss was scheduled for May 16, 2013. KERYX BIOPHARMA: Motion for Lead Plaintiff & Counsel Pending ------------------------------------------------------------ Motions to appoint Lead Plaintiff and Lead Plaintiff's Counsel in securities suits against Keryx Biopharmaceuticals, Inc. are presently pending, according to the company's May 8, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2013. On February 1, 2013, a lawsuit was filed against the company and its chief executive officer on behalf of a putative class of all of our shareholders (other than the defendants) who acquired our shares between June 1, 2009 and April 1, 2012, Smith v. Keryx Biopharmaceuticals, Inc., et al., Case No. 1:13-CV-0755-TPG (S.D.N.Y.). On February 26, 2013, a substantially similar lawsuit was filed against the company and its chief executive officer as well as our chief financial officer, Park v. Keryx Biopharmaceuticals, Inc., et al., Case No. 1:13-CV-1307-TPG (S.D.N.Y.). The company anticipates the court will consolidate the actions. Both complaints assert claims against (i) the company for alleged violations of Section 10(b) of the Securities Exchange Act of 1934 ("Exchange Act") and Rule 10b-5 promulgated thereunder and (ii) the officers for alleged violations of Sections 10(b) and 20(a) of the Exchange Act and Rule 10b-5. Both complaints are premised on general allegations that the company and the individual defendants participated directly or indirectly in the preparation and/or issuance of purportedly false and misleading earnings reports, SEC filings, press releases, and other public statements, which allegedly caused the Company's stock to trade at artificially inflated prices. The plaintiffs seek an unspecified amount of damages. Motions to appoint Lead Plaintiff and Lead Plaintiff's Counsel were filed on April 2, 2013, and are presently pending. Following the appointment of Lead Plaintiff and Lead Plaintiff's Counsel, a Consolidated Amended Complaint will be filed that will serve as the operative complaint in this matter. MANULIFE FINANCIAL: Investor Class Action Hearing Begins -------------------------------------------------------- Theresa Tedesco, writing for Financial Post, reports that almost four years after irate investors launched a C$500-million claim against Manulife Financial Corp. over its risk management policies and practices, an Ontario court was set to hear arguments as it determines whether the case can proceed as a class action. Three days of hearings were scheduled before Ontario Superior Court Justice Edward Belobaba beginning June 5, forcing Canada's once most-venerated life insurer to revisit a tumultuous time that stemmed from the turmoil of the 2008 global financial meltdown and culminated in a tense battle between regulators, Manulife's legendary former chief executive Dominic D'Alessandro and the company's blue-chip board of directors. Filed in 2009 by Siskinds LLP on behalf of shareholders who acquired Manulife shares from Jan. 26, 2004 to Feb. 12, 2009, the lawsuit seeks millions in damages from the giant insurance company, 66-year-old Mr. D'Alessandro and former chief financial officer Peter Rubenovitch. At issue is Manulife's controversial hedging strategy for variable annuity and segregated funds products. The claim alleges, among other things, that the giant insurer "negligently made representations" regarding its risk management practices and policies. A similar class-action suit in the U.S. was dismissed last September. The court hearing is the first among many preliminary steps aggrieved investors will be required to take before going to trial. In seeking leave from the court to certify the class action, the plaintiffs must demonstrate their claim has been brought forward in good faith for the purposes of recovering losses. Justice Belobaba, who is expected to defer his decision, will weigh the preliminary evidence to determine whether the case has a reasonable chance of success at trial. Furthermore, if the judge rules in favor of the class action, it will likely still be years before any of the allegations against Manulife are tested or proven in court. "The company believes that its disclosure satisfied applicable disclosure requirements, and intends to vigorously defend itself against any claims based on these allegations," Manulife spokesman Graeme Harris said in an email. Even so, for three days, Manulife will be forced to relive the drama of an era of explosive growth that forged the firm into the largest life insurer in North America under the tutelage of Mr. D'Alessandro -- and the global financial havoc that knocked the company off its pedestal. Like other Canadian insurers, Manulife was sideswiped by the 2008 financial crisis mostly due to its exposure to guaranteed annuity products, especially in North America and Asia. A major player in segregated funds and variable annuities, the company developed an unusually high exposure to stock markets. It was simple demographics: aging Baby Boomers flocked to products that enhanced their retirement portfolios with investments that featured wealth protection guarantees. In turn, insurers who offered the products were required to pad their capital reserves to cover guaranteed payouts in the event markets crashed. However, in 2004, Manulife dispensed with the industry practice of hedging its equity position in the variable annuity business. Two years later, it faced growing risk exposure caused by the gap between the amount it promised to pay its variable annuity clients in the future and the amount set aside to meet those guarantees. In late 2007, the insurer took measured steps to bridge the growing chasm by hedging in a small percentage of its business. But it was too little, too late. By 2008, Manulife's risk exposure had widened significantly after global stock markets plunged into freefall, shaving as much as 50% from leading market indices. By September, 2008 Manulife's net exposure of guarantees from segregated funds was $72-billion to be paid out in seven to 30 years. Meanwhile, its capital levels sank as a result of the massive stock performance associated with the variable annuities. Inevitably, the Office of the Superintendent of Financial Institutions, Canada's much feared -- and revered -- financial watchdog took notice. In a series of aggressive moves over several months in late 2008 to 2009, the regulator forced Manulife to shore up its capital position. By the end of that turbulent time, the insurer had hedged all of its new variable annuity business and restored its capital to more comfortable levels. Even so, OSFI ratcheted up its oversight and supervision by subjecting the company's senior management, led by Mr. D'Alessandro, and its blue-chip board of directors to unprecedented scrutiny. For the mercurial CEO, it was an especially difficult time. Widely celebrated in Canadian business circles for building Manulife into a financial powerhouse, Mr. D'Alessandro faced unaccustomed criticism that cast a pall over a stellar career, and led to his "bittersweet" exit. By the time Mr. D'Alessandro retired in May, 2009 -- a year later than he had planned -- Manulife had ceased selling annuities to clients. His successor Donald Guloien ushered in a conservative management style that signaled a dramatic shift in an attempt to rebuild Manulife's bruised balance sheet and repair strained relations with OSFI. Armed with his repeated mantra of building "fortress capital," Mr. Guloien steadily rooted out risk, rebuilt capital, slashed the dividend in half and raised $2.5-billion in a share offer that at the time was the second largest in Canadian history. In the ensuing three years, Manulife has emerged a different company. No longer the largest in Canada by market capitalization, it is nonetheless a steady, stable player. But there's no running from the past, at least for the foreseeable future. MCKESSON CORPORATION: Settles Suit Over PSS World Acquisition ------------------------------------------------------------- McKesson Corporation agreed in principle to settle as a non-opt out class action a lawsuit in relation to its agreement to acquire PSS World Medical, according to the company's May 7, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2013. In connection with the Company's execution of an agreement to acquire PSS World Medical, a putative class action complaint was filed on December 5, 2012, in Florida state court, Duval County, by an alleged public shareholder of PSS World Medical against PSS World Medical, members of PSS World Medical's board of directors, The Goldman Sachs Group, Inc., Goldman, Sachs & Co, and the Company, Baltimore County Employees' Retirement System v. Gary A. Corless, et al. (No.16-2012-CA-013015). The suit alleges that PSS World Medical and its board members breached their fiduciary duties by failing to maximize shareholder value and by failing to disclose material information in the preliminary proxy statement, and that the Company and others aided and abetted various fiduciary duty breaches in connection with the proposed merger. In addition to monetary damages in an unspecified amount and other remedies, the suit seeks to enjoin consummation of the merger. On February 8, 2013, the parties agreed in principle to settle the action as a non-opt out class action, subject to court approval, with enhanced disclosures, a request for attorneys' fees, and no affect on the consideration to be received by PSS shareholders as a result of the Company's agreement to acquire PSS. The agreement includes an express denial of any liability on the part of the Company. The parties will seek to enter into a stipulation of settlement that will be presented to the court for final approval. MELLANOX TECHNOLOGIES: May Face Class Action Over TASE Delisting ---------------------------------------------------------------- Shmulik Shelach, writing for Globes, reports that the decision by Mellanox Technologies Ltd. to delist from the TASE continues to make waves. On June 20, lawyers representing investors sent a letter threatening a class-action suit against the company, which plans to delist from the TASE in September. "The company's board of directors should have prevented Eyal Waldman [Mellanox's chairman, president and CEO] from exercising his childish caprices, and made it clear to him that it is absolutely unacceptable to delist the company for reasons of caprice and games of ego," states the letter. "We find is astonishing and serious that the board of directors of such a respected and successful company lent their support to such an embarrassing and childish act, which is liable to cause the company and its shareholders serious damage." In the letter, the shareholders demand that Mellanox cancel the decision to delist, give the petitioners material related to the decision, and compensate the shareholders, because the announcement of the delisting "caused the shareholders huge losses amounting to hundreds of millions of shekels." METABOLIX INC: Awaits Decision on Bid to Dismiss "Coyne" Suit ------------------------------------------------------------- Metabolix, Inc., is awaiting a court decision on its motion to dismiss a class action lawsuit commenced by Hilary Coyne in Massachusetts, according to the Company's May 10, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2013. On February 17, 2012, a purported shareholder class action, Hilary Coyne v. Metabolix, Inc., Richard P. Eno, and Joseph Hill, Civil Action 1:12-cv-10318 (the "class action"), was filed in the United States District Court for the District of Massachusetts, naming the Company and certain officers of the Company as defendants. The class action alleges that the Company made material misrepresentations and/or omissions of material fact in the Company's disclosures during the period from March 10, 2010, through its January 12, 2012 press release announcing that Archer Daniels Midland Company ("ADM") had given notice of termination of the Telles LLC joint venture for PHA biopolymers, all in violation of Sections 10(b) and 20(a) of the Securities Exchange Act and Rule 10b-5. The class action seeks certification as a class action, compensatory damages in an unspecified amount, the plaintiff's costs and attorneys' fees, and unspecified equitable or injunctive relief. The plaintiff filed an amended complaint on October 15, 2012, that supersedes the initial complaint and demands identical relief based on substantially similar allegations. On December 14, 2012, the defendants filed a motion to dismiss the amended complaint, which the plaintiffs opposed, and on which the court has not yet ruled. Headquartered in Cambridge, Massachusetts, Metabolix, Inc. is an innovation-driven bioscience company focused on delivering sustainable solutions to the plastics, chemicals and energy industries. The Company has core capabilities in microbial genetics, fermentation process engineering, chemical engineering, polymer science, plant genetics and botanical science. MORGAN STANLEY: ERISA Litigation Dismissed ------------------------------------------ On March 28, 2013, the court presiding in both In re Morgan Stanley ERISA Litigation and Coulter v. Morgan Stanley & Co. Incorporated et al. granted defendants' motions to dismiss. In each case the court allowed plaintiffs the opportunity to file an amended complaint with respect to certain claims, according to the company's May 7, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2013. Morgan Stanley disclosed on its February 26, 2013, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2012, that beginning in December 2007, several purported class action complaints were filed in the United States District Court for the Southern District of New York (the "SDNY") asserting claims on behalf of participants in the Company's 401(k) plan and employee stock ownership plan against the Company and other parties, including certain present and former directors and officers, under the Employee Retirement Income Security Act of 1974 ("ERISA"). In February 2008, these actions were consolidated in a single proceeding, styled In re Morgan Stanley ERISA Litigation. The consolidated complaint relates in large part to the Company's subprime and other mortgage related losses, but also includes allegations regarding the Company's disclosures, internal controls, accounting and other matters. The consolidated complaint alleges, among other things, that the Company's common stock was not a prudent investment and that risks associated with its common stock and its financial condition were not adequately disclosed. Plaintiffs are seeking, among other relief, class certification, unspecified compensatory damages, costs, interest and fees. On March 26, 2012, defendants filed a renewed motion to dismiss the complaint. MORGAN STANLEY: "Coulter" Action Dismissed ------------------------------------------ On March 28, 2013, the court presiding in both In re Morgan Stanley ERISA Litigation and Coulter v. Morgan Stanley & Co. Incorporated et al. granted defendants' motions to dismiss. In each case the court allowed plaintiffs the opportunity to file an amended complaint with respect to certain claims, according to the company's May 7, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2013. Morgan Stanley disclosed in its February 26, 2013, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2012, that on March 16, 2011, a purported class action, styled Coulter v. Morgan Stanley & Co. Incorporated et al., was filed in the SDNY asserting claims on behalf of participants in the Company's 401(k) plan and employee stock ownership plan against the Company and certain current and former officers and directors for breach of fiduciary duties under ERISA. The complaint alleges, among other things, that defendants knew or should have known that from January 2, 2008 to December 31, 2008, the plans' investment in Company stock was imprudent given the extraordinary risks faced by the Company and its common stock during that period. Plaintiffs are seeking, among other relief, class certification, unspecified compensatory damages, costs, interest and fees. On July 20, 2011, plaintiffs filed an amended complaint and on October 28, 2011, defendants filed a motion to dismiss the amended complaint. MORGAN STANLEY: Files Answer to Amended Pass-Through Cert. Suit --------------------------------------------------------------- Morgan Stanley on March 8, 2013, filed an answer to the fourth amended complaint in In re Morgan Stanley Mortgage Pass-Through Certificates Litigation, according to the company's May 7, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2013. Morgan Stanley disclosed on its February 26, 2013, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2012, that on May 7, 2009, the Company was named as a defendant in a purported class action lawsuit brought under Sections 11, 12 and 15 of the Securities Act of 1933, as amended (the "Securities Act"), which is now styled In re Morgan Stanley Mortgage Pass-Through Certificate Litigation and is pending in the SDNY. The third amended complaint, filed on September 30, 2011, alleges, among other things, that the registration statements and offering documents related to the offerings of certain mortgage pass- through certificates in 2006 contained false and misleading information concerning the pools of residential loans that backed these securitizations. The plaintiffs seek, among other relief, class certification, unspecified compensatory and rescissionary damages, costs, interest and fees. On January 11, 2013, the court granted plaintiffs' motion for reconsideration which sought to expand the offerings at issue in the litigation based on recent precedent from the Second Circuit. On January 31, 2013, plaintiffs filed a fourth amended complaint, in which they purport to represent investors who purchased approximately $7.82 billion in mortgage pass-through certificates issued in 2006 by 14 trusts. MORGAN STANLEY: IndyMac MBS Suit Stayed Pending Settlement Talks ---------------------------------------------------------------- On November 16, 2012, the court presiding in In re IndyMac Mortgage-Backed Securities Litigation denied without prejudice plaintiffs' motion for reconsideration seeking to expand the offerings at issue in the litigation. On March 26, 2013, the court entered an order staying the litigation for 60 days in order for the parties to engage in settlement discussions, according to Morgan Stanley's May 7, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2013. Morgan Stanley disclosed on its February 26, 2013, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2012: "In re IndyMac Mortgage-Backed Securities Litigation is pending in the SDNY and relates to offerings of mortgage pass-through certificates issued by seven trusts sponsored by affiliates of IndyMac Bancorp during 2006 and 2007. On June 21, 2010, the court granted in part and denied in part the underwriter defendants' motion to dismiss the amended consolidated class action complaint. "The Company underwrote approximately $46 million of the principal amount of the offerings currently at issue. In July 2011, certain putative additional plaintiffs appealed the court's June 2011 order denying the motion to add them as additional plaintiffs as to the Company. The Company is opposing the appeals. On August 17, 2012, the court granted class certification. On October 12, 2012, the plaintiffs filed a motion seeking to expand the offerings at issue in the litigation, relying on recent precedent from the Second Circuit. Defendants have opposed the motion. "If the motion is granted and the offerings are included in the class that is certified, the principal amount of the offerings underwritten by the Company at issue in the litigation will be approximately $1.68 billion." MORGAN STANLEY: BofA Settles Suit v. Countrywide Financial ---------------------------------------------------------- On April 17, 2013, Bank of America announced an agreement to settle several matters, including the Luther, et al. v. Countrywide Financial Corporation, et al. litigation, according to Morgan Stanley's May 7, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2013. The settlement agreement is subject to court approval. Morgan Stanley disclosed on its February 26, 2013, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2012, that Luther, et al. v. Countrywide Financial Corporation, et al., pending in the Superior Court of the State of California, was filed on November 14, 2007 and involves claims related to the Company's role as an underwriter of various residential mortgage backed securities offerings issued by affiliates of Countrywide Financial Corporation. The amended complaint includes allegations that the registration statements and the offering documents contained false and misleading statements about the residential mortgage loans backing the securities. The Company underwrote approximately $6.3 billion of the principal amount of the offerings at issue. On December 19, 2011, defendants moved to dismiss the complaint. In February 2012, defendants moved to stay the case pending resolution of a securities class action brought by the same plaintiffs, styled Maine State Retirement System v. Countrywide Financial Corporation, et al., in the United States District Court for the Central District of California. In June 2012, the defendants removed the case to the United States District Court for the Central District of California. The motion to remand the matter was denied in August 2012. NATIONAL BEEF: Recalls 22,737 Pounds of Raw Ground Beef Products ---------------------------------------------------------------- National Beef Packing Co., a Liberal, Kansas establishment, is recalling approximately 22,737 pounds of raw ground beef products that may be contaminated with E. coli O157:H7, the U.S. Department of Agriculture's Food Safety and Inspection Service (FSIS) announced. The following products are subject to recall: * 10 lb. packages of "National Beef" 80/20 Coarse Ground Chuck, package code "0481." * 10 lb. packages of "National Beef" 81/19 Coarse Ground Beef, package code "0421." * 10 lb. packages of "National Beef" 80/20 Fine Ground Chuck, package code "0484." All these products have a "USE BY/SELL BY DATE" of June 14, 2013, and bear the establishment number "EST. 208A" inside the USDA mark of inspection. The products were produced on May 25, 2013, and shipped to various institutions and retail establishments in Texas, Tennessee, Kansas, Mississippi, Illinois, Georgia, Kentucky, Louisiana, Oklahoma, Missouri, Arkansas, and Arizona. FSIS and the establishment are concerned that some product may be frozen and in shoppers' freezers. The problem was discovered through routine FSIS monitoring which confirmed a positive result for E.coli O157:H7. An investigation determined the firm was the sole supplier of the source materials used to produce the positive product. FSIS and the Company have received no reports of illnesses associated with consumption of these products. FSIS routinely conducts recall effectiveness checks to verify recalling firms notify their customers of the recall and that steps are taken to make certain that the product is no longer available to consumers. When available, the retail distribution list(s) will be posted on the FSIS Web site at: http://www.fsis.usda.gov/recalls/ FSIS advises all consumers to safely prepare their raw meat products, including fresh and frozen, and only consume ground beef that has been cooked to a temperature of 160 degrees F. The only way to confirm that ground beef is cooked to a temperature high enough to kill harmful bacteria is to use a food thermometer that measures internal temperature. E. coli O157:H7 is a potentially deadly bacterium that can cause dehydration, bloody diarrhea and abdominal cramps 2-8 days (3-4 days, on average) after exposure to the organism. While most people recover within a week, some develop a type of kidney failure called HUS. This condition can occur among persons of any age but is most common in children under 5-years old and older adults. Symptoms of HUS may include fever, abdominal pain, pale skin tone, fatigue and irritability, small, unexplained bruises or bleeding from the nose and mouth, decreased urination, and swelling. Persons who experience these symptoms should seek emergency medical care immediately. Consumers with questions should contact the Company at (877) 857- 4143 for details about the recall and their return and reimbursement policy. Media with questions regarding the recall should contact the company's spokesperson, Keith Welty, at (816) 713-8631. Additional information can be found at http://www.nationalbeef.com/. Consumers with food safety questions can "Ask Karen," the FSIS virtual representative available 24 hours a day at AskKaren.gov. The toll-free USDA Meat and Poultry Hotline 1-888-MPHotline (1- 888-674-6854) is available in English and Spanish and can be reached from 10:00 a.m. to 4:00 p.m. (Eastern Time) Monday through Friday. Recorded food safety messages are available 24 hours a day. NATURA PET: Recalls Specialized Dry Pet Foods Due to Health Risk ---------------------------------------------------------------- Natura Pet Products is voluntarily recalling specific lots of dry pet food because it has the potential to be contaminated with Salmonella. Salmonella can affect animals eating the products and there is risk to humans from handling contaminated pet products, especially if they have not thoroughly washed their hands after having contact with the products or any surfaces exposed to these products. Healthy people infected with Salmonella should monitor themselves for some or all of the following symptoms: nausea, vomiting, diarrhea or bloody diarrhea, abdominal cramping and fever. Rarely, Salmonella can result in more serious ailments, including arterial infections, endocarditis, arthritis, muscle pain, eye irritation, and urinary tract symptoms. Consumers exhibiting these signs after having contact with this product should contact their healthcare providers. Pets with Salmonella infections may be lethargic and have diarrhea or bloody diarrhea, fever, and vomiting. Some pets will have only decreased appetite, fever and abdominal pain. Infected but otherwise healthy pets can be carriers and infect other animals or humans. If your pet has consumed the recalled product and has these symptoms, please contact your veterinarian. These products were packaged in a single production facility. During routine FDA testing, a single lot tested positive for the presence of Salmonella. There have been no reports of pet or human illness associated with this product. In an abundance of caution, Natura is voluntarily recalling all products with expiration dates prior to June 10, 2014. The affected products are sold in bags through veterinary clinics, select pet specialty retailers, and online in the United States and Canada. No canned wet food is affected by this announcement. The affected products are: BRAND LOT CODE/UPC/SIZES EXPIRATION ----- ------------------ ---------- Innova Dry dog and All Lot Codes, All UPCs All expiration cat food and All package sizes dates prior to biscuits/bars/treats 6-10-2014 EVO dry dog, cat All Lot Codes, All UPCs All expiration and ferret food and All package sizes dates prior to biscuits/bars/treats 6-10-2014 California Natural All Lot Codes, All UPCs All expiration dry dog and cat All package sizes dates prior to foods and 6-10-2014 biscuits/bars/treats Healthwise dry dog All Lot Codes, All UPCs All expiration and cat foods All package sizes dates prior to 6-10-2014 Karma dry dog All Lot Codes, All UPCs All expiration foods All package sizes dates prior to 6-10-2014 Mother Nature All Lot Codes, All UPCs All expiration biscuits/bars/treats All package sizes dates prior to 6-10-2014 Consumers who have purchased the specific dry pet foods listed should discard them. For further information or a product replacement or refund call Natura toll-free at 800-224-6123, Monday - Friday, 8:00 a.m. to 5:30 p.m. Central Standard Time. About Natura Pet Products Natura Pet Products is recognized as a trusted name behind natural and holistic pet foods and treats. Founded more than 20 years ago by John and Ann Rademakers and Peter Atkins, Natura is dedicated to providing the best natural nutrition. Natura is committed to making premium pet foods and treats based on nutritional science and high-quality ingredients, combined with trusted manufacturing processes, for complete pet health. Lines include: Innova(R), California Natural(R), EVO(R), HealthWise(R), Mother Nature(R) and Karma(R). To learn more about Natura Pet Products visit http://www.NaturaPet.com/ NELNET INC: Unit's Bid to Appeal in "Yaakov" Suit Denied in May --------------------------------------------------------------- A petition brought by a Nelnet, Inc. subsidiary for permission to seek an interim appeal with an appellate court was denied in May 2013, according to the Company's May 10, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2013. On January 4, 2011, a complaint against Peterson's Nelnet, LLC ("Peterson's"), a subsidiary of the Company, was filed in the U.S. federal District Court for the District of New Jersey (Bais Yaakov of Spring Valley v. Peterson's Nelnet, LLC). The complaint alleges that Peterson's sent six advertising faxes to the named plaintiff in 2008-2009 that were not the result of express invitation or permission granted by the plaintiff and did not include certain opt out language. The complaint also alleges that such faxes violated the federal Telephone Consumer Protection Act (the "TCPA"), purportedly entitling the plaintiff to $500 per violation, trebled for willful violations for each of the six faxes. The complaint further alleges that Peterson's had sent putative class members more than 10,000 faxes that violated the TCPA, amounting to more than $5 million in statutory penalty damages and more than $15 million if trebled for willful violations. The complaint seeks to establish a class action. As of May 10, 213, the District Court has not established or recognized any class. On April 14, 2012, the U.S. Court of Appeals for the Third Circuit (the "Appeals Court"), which has jurisdiction over the District Court, issued an order in an unrelated TCPA case which remanded that case to the District Court to determine whether the statutory provisions of the TCPA limit whether or to what extent a TCPA claim can be heard as a class action in federal court where applicable state law would impose limitations on a class action if the claim were brought in state court. The District Court denied a subsequent motion by Peterson's to dismiss the complaint, but granted a motion enabling Peterson's to file a petition for permission to seek an interim appeal with the Appeals Court regarding questions of law that may affect the outcome of the case, which petition the Appeals Court denied on May 8, 2013. Peterson's intends to continue to contest the lawsuit vigorously. Due to the preliminary stage of this matter and the uncertainty and risks inherent in class determination and the overall litigation process, the Company believes that a meaningful estimate of a reasonably possible loss, if any, or range of reasonably possible losses, if any, cannot currently be made. Nelnet, Inc., is an education services company focused primarily on providing fee-based processing services and quality education- related products and services in four core areas: loan financing, loan servicing, payment processing, and enrollment services. The Company is headquartered in Lincoln, Nebraska. NOVA SCOTIA HOME: Province Denies Responsibility in Abuses ---------------------------------------------------------- Eva Hoare, writing for The Chronicle Herald, reports that the province of Nova Scotia opposes the class action against Nova Scotia Home for Colored Children. June Elwin still remembers the "entertainment" that would show up at the Nova Scotia Home for Colored Children. "White people used to come out there and paint themselves black and think that they were entertaining us," Ms. Elwin said. The black-faced group would sing "Way down upon the Swanee River," said the former resident of the Dartmouth home, who was six or seven years old at the time. "I knew they were making fun of us." Ms. Elwin said she couldn't bear to watch the plaid-suited men perform. Decades later, she doesn't think much has changed. Ms. Elwin is one of three former home residents who are lead plaintiffs in a proposed class action against the province that was headed to court on June 10 for certification. The others are Deanna Smith and Harriet Johnson. Ms. Elwin, 72, of Whitby, Ont., said she hopes she and other residents will get their day in court because she has no faith in the Nova Scotia government, its lawyers or the premier. The province opposes the class action and is trying to have all or portions of Ms. Elwin's and other residents' affidavits struck from the case. In a submission to Nova Scotia Supreme Court on May 31, the province said it never had a responsibility to Ms. Elwin and roughly 139 others involved in the class action. Instead, provincial lawyers Catherine Lunn and Peter McVey said that duty belonged to children's aid societies and/or municipalities. The residents "erroneously assume" that those in the orphanage were "wards of the province," Ms. Lunn and Mr. McVey wrote. "It is not correct in fact or in law." The province contends it had an "indirect" relationship with residents and was only there to "encourage, assist and advise." It didn't "supervise, regulate or direct their (homes') operations." And when a Crown minister was appointed to oversee such operations, the lawyers said his work was more about "higher-level appointments and financial matters." Also, the province said, Ms. Elwin, Ms. Smith and Ms. Johnson can't "fairly or adequately" represent their fellow claimants. Ms. Elwin and Ms. Johnson were never wards of the province so they don't qualify, the lawyers maintain. Under previous cross- examination, Smith said other residents harmed her while she was at the orphanage, so she is in "conflict," the lawyers said. Ms. Lunn and Mr. McVey also laid out a lengthy argument on everything from legal definitions of class actions and those who can be involved, to the history of governmental responsibility and various legislative acts relating to child care in Nova Scotia. Meanwhile, a group representing Elwin and other former residents says any hope of healing will be lost if the government keeps fighting them in court. Tony Smith, a co-chairman of Voices, said he's urged the province to stop denying that residents were abused because waging a legal battle while declaring a desire for reconciliation doesn't work. It's his hope the province will end its opposition to the class action. Ms. Elwin, who was getting ready for her court appearance, was enraged that the province's lawyers want to wipe out her affidavit and those of other residents. Most of those documents allege everything from sexual and physical abuse to racism, and some allude to medical malpractice. Premier Darrell Dexter has previously described the lawyers' move to strike the affidavits as routine, but Ms. Elwin said it's not routine to try to expunge what she says happened to her at the home. "You're trying to hide evidence," she said. Originally from Liverpool, she arrived at the home as a toddler in the 1940s, remaining until 1953. Records of a litany of events alleged to have occurred at the orphanage seem to have vanished, she said. For example, she said, there's no evidence of medical procedures a doctor performed on children on a playroom table. (Ms. Elwin later became a nurse.) "They dropped ether to put you to sleep," she said. "They took out our tonsils like (it was) a butcher shop. They didn't have a nurse." Ms. Smith has accused the government of trying to obstruct a potential public inquiry, which he says would delve into the alleged abuse and why it happened. Instead, the province said it's forming an independent panel, a process that has already begun. Ms. Elwin just wants the government to get down to the business of finding the truth. "They should really settle this thing out of court," she said of the lawsuit. (The home itself has already agreed to a C$5-million payout to former residents, a settlement that will go before the court this month for approval.) Mr. Dexter has said he's concerned about costs related to the entire case, including the possibility of calling a public inquiry, but Elwin believes a dragged-out court case would end up costing more. "If he wants to save money, well, settle it out of court," she said. Otherwise, she said, she and other black Nova Scotians will be left with only one belief -- that they don't matter. "He's sending a strong message that he doesn't care about black people and what happened to them," Ms. Elwin said. "Blacks are transparent, blacks have no value." NOVATION COMPANIES: Dismissal of Fund's Securities Suit Reversed ---------------------------------------------------------------- An appellate court reversed an order of the United States District Court for the Southern District of New York to dismiss a securities suit filed by the New Jersey Carpenters' Health Fund, according to Novation Companies, Inc.'s May 8, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2013. On May 21, 2008, a purported class action case was filed in the Supreme Court of the State of New York, New York County, by the New Jersey Carpenters' Health Fund, on behalf of itself and all others similarly situated. Defendants in the case included NovaStar Mortgage Funding Corporation ("NMFC") and its individual directors, several securitization trusts sponsored by the Company ("affiliated defendants") and several unaffiliated investment banks and credit rating agencies. The case was removed to the United States District Court for the Southern District of New York. On June 16, 2009, the plaintiff filed an amended complaint. The plaintiff seeks monetary damages, alleging that the defendants violated sections 11, 12 and 15 of the Securities Act of 1933, as amended, by making allegedly false statements regarding mortgage loans that served as collateral for securities purchased by the plaintiff and the purported class members. On August 31, 2009, the Company filed a motion to dismiss the plaintiff's claims, which the court granted on March 31, 2011, with leave to amend. The plaintiff filed a second amended complaint on May 16, 2011, and the Company again filed a motion to dismiss. On March 29, 2012, the court dismissed the plaintiff's second amended complaint with prejudice and without leave to replead. The plaintiff filed an appeal. On March 1, 2013, the appellate court reversed the judgment of the lower court, which had dismissed the case. Also, the appellate court vacated the judgment of the lower court which had held that the plaintiff lacked standing, even as a class representative, to sue on behalf of investors in securities in which plaintiff had not invested, and the appellate court remanded the case back to the lower court for further proceedings. OSKRI CORP: Recalls Coconut, Fig and Almond Dark Chocolate Bars --------------------------------------------------------------- OSKRI Corp. of Lake Mills, Wisconsin, is recalling "Coconut Bar Dark Chocolate", "Coconut Bar Dark Chocolate Minis", "Fig Dark Chocolate Bars" and "Almond Dark Chocolate Bars" because the dark chocolate contains milk. People who have an allergy or severe sensitivity to milk run the risk of serious or life-threatening allergic reaction if they consume these products. The recalled "Coconut Bar Dark Chocolate", "Coconut Bar Dark Chocolate Minis", "Fig Dark Chocolate Bars" and "Almond Dark Chocolate Bars" was distributed nationwide to retail stores. The product comes in a 1.9 ounce, flexible plastic wrapper, UPC 666016-300703 (Coconut Bar Dark Chocolate), UPC 666016-400311 (Coconut Bars Dark Chocolate Minis), UPC 666016-300307 (Fig Dark Chocolate Bars) and UPC 666016-300420 (Almond Dark Chocolate Bars) marked with the following stamp, which can be found on the front of the wrapper: P 1/1/13 through 6/6/13 EXP 7/7/14 through 12/12/14 LOT 001 through 164 There have not been any complaints of allergic reactions to this product. The recall was initiated after it was discovered that the "Coconut Bar Dark Chocolate", "Coconut Bar Dark Chocolate Minis", "Fig Dark Chocolate Bars" and "Almond Dark Chocolate Bars" may contain milk in the product. Subsequent investigation indicates the problem was caused by a temporary breakdown in the Company's production process. Consumers who have purchased these products are urged to return it to Oskri for a full refund. Consumers with questions may contact Laura Pineda at Oskri's Quality Department by e-mailing quality@oskri.com Please return products to: Oskri, 528 E. Tyranena Park Road, Lake Mills, WI 53551 PANTRY INC: Still Faces 5 Hot Fuel Class Suits ---------------------------------------------- The Pantry, Inc. remains a defendant in five cases over motor fuel delivered in non-temperature adjusted gallons pending in the United States District Court for the District of Kansas, according to the company's May 7, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 28, 2013. Since the beginning of fiscal 2007, over 45 class action lawsuits have been filed in federal courts across the country against numerous companies in the petroleum industry. Major petroleum companies and significant retailers in the industry have been named as defendants in these lawsuits. Initially, the company was named as a defendant in eight of these cases, three of which have recently been dismissed without prejudice. The company remains a defendant in five cases: one in North Carolina (Neese, et al. v. Abercrombie Oil Company, Inc., et al., E.D.N.C., No. 5:07-cv-00091-FL, filed 3/7/07); one in Alabama (Cook, et al. v. Chevron USA, Inc., et al., N.D. Ala., No. 2:07- cv-750-WKW-CSC, filed 8/22/07); one in Georgia (Rutherford, et al. v. Murphy Oil USA, Inc., et al., No. 4:07-cv-00113-HLM, filed 6/5/07); one in Tennessee (Shields, et al. v. RaceTrac Petroleum, Inc., et al., No. 1:07-cv-00169, filed 7/13/07); and one in South Carolina (Korleski v. BP Corporation North America, Inc., et al., D.S.C., No 6:07-cv-03218-MDL, filed 9/24/07). Pursuant to an Order entered by the Joint Panel on Multi-District Litigation, all of the cases, including those in which the company is named, have been transferred to the United States District Court for the District of Kansas and consolidated for all pre- trial proceedings. The plaintiffs in the lawsuits generally allege that they are retail purchasers who received less motor fuel than the defendants agreed to deliver because the defendants measured the amount of motor fuel they delivered in non-temperature adjusted gallons which, at higher temperatures, contain less energy. These cases seek, among other relief, an order requiring the defendants to install temperature adjusting equipment on their retail motor fuel dispensing devices. In certain of the cases, including some of the cases in which the company is named, plaintiffs also have alleged that because defendants pay fuel taxes based on temperature adjusted 60 degree gallons, but allegedly collect taxes from consumers on non-temperature adjusted gallons, defendants receive a greater amount of tax from consumers than they paid on the same gallon of fuel. The plaintiffs in these cases seek, among other relief, recovery of excess taxes paid and punitive damages. Both types of cases seek compensatory damages, injunctive relief, attorneys' fees and costs and prejudgment interest. The defendants filed motions to dismiss all cases for failure to state a claim, which were denied by the court on February 21, 2008. A number of the defendants, including the Company, subsequently moved to dismiss for lack of subject matter jurisdiction or, in the alternative, for summary judgment on the grounds that plaintiffs' claims constitute non-justiciable "political questions." The Court denied the defendants' motion to dismiss on political question grounds on December 3, 2009, and defendants request to appeal that decision to the United States Court of Appeals for the Tenth Circuit was denied on August 31, 2010. PANTRY INC: Suit Over FACT Act Violation Stayed Pending Appeal -------------------------------------------------------------- The United States District Court for the Northern District of Alabama court has stayed a case over claims The Pantry, Inc., printed receipts containing the first four and last four digits of their credit and/or debit card numbers pending the resolution of a petition against the dismissal of the case before the United States Court of Appeals for the 11th Circuit, according to the company's May 7, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 28, 2013. On October 19, 2009, Patrick Amason, on behalf of himself and a putative class of similarly situated individuals, filed suit against The Pantry in the United States District Court for the Northern District of Alabama, Western Division (Patrick Amason v. Kangaroo Express and The Pantry, Inc. No. CV-09-P-2117-W). On September 9, 2010, a first amended complaint was filed adding Enger McConnell on behalf of herself and a putative class of similarly situated individuals. The plaintiffs seek class action status and allege that The Pantry included more information than is permitted on electronically printed credit and debit card receipts in willful violation of the Fair and Accurate Credit Transactions Act, codified at 15 U.S.C. Sec. 1681c(g). The amended complaint alleges that: (i) plaintiff Patrick Amason seeks to represent a subclass of those class members as to whom the Company printed receipts containing the first four and last four digits of their credit and/or debit card numbers; and (ii) plaintiff Enger McConnell seeks to represent a subclass of those class members as to whom the Company printed receipts containing all digits of their credit and/or debit card numbers. The plaintiffs seek an award of statutory damages of $100 to $1,000 for each alleged willful violation of the statute, as well as attorneys' fees, costs, punitive damages and a permanent injunction against the alleged unlawful practice. On July 25, 2011, the court denied the plaintiffs' initial motion for class certification but granted the plaintiffs the right to file an amended motion. On October 3, 2011, Plaintiff filed an amended motion for class certification seeking to certify two classes. The first purported class, represented by Mr. Amason, consists of (A) all natural persons whose credit and/or debit card was used at an in-store point of sale owned or operated by the Company from June 4, 2009 through the date of the final judgment in the action; (B) where the transaction was in a Company store located in the State of Alabama; and (C) in connection with the transaction, a receipt was printed by Retalix software containing the first four and last four digits of the credit/debit card number on the receipt provided to the customer. The second purported class, represented by Ms. McConnell, consists of (A) all natural persons whose credit and/or debit card was used at an in-store point of sale owned or operated by the Company from June 1, 2009 through the date of the final judgment in the action; and (B) in connection with the transaction, a receipt was printed containing all of the digits of the credit/debit card numbers on the receipt provided to the customer. The Company has opposed the plaintiffs' motion for class certification and has made a motion to dismiss the plaintiffs' claims on the basis that the plaintiffs lack standing. On March 11, 2013, the court denied our Motion to Dismiss For Lack of Standing and certified the issue for interlocutory appeal to the United States Court of Appeals for the 11th Circuit. The company filed a petition with the 11th Circuit to take up the appeal of the Motion to Dismiss at this juncture, rather than at the end of the case. That petition is still pending before the 11th Circuit. The trial court has stayed the case pending the resolution of the petition and any resulting interlocutory appeal. If, following the appellate practice, there are further proceedings before the trial court, the trial court has indicated that it will schedule a hearing on the plaintiffs' pending motion for class certification. PAPA JOHN'S: Enters Settlement in Suit Over "Unsolicited" Text Ad ----------------------------------------------------------------- Papa John's International, Inc. tentatively agreed to the financial terms of a settlement of a suit alleging violation of the Telephone Consumer Protection Act and Washington State telemarketing laws, according to the company's May 7, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2013. Agne v. Papa John's International, Inc. et al. is a class action filed on May 28, 2010 in the United States District Court for the Western District of Washington seeking damages for violations of the Telephone Consumer Protection Act and Washington State telemarketing laws alleging, among other things that several Papa John's franchisees retained a vendor to send unsolicited commercial text message offers primarily in Washington and Oregon. The court granted plaintiff's motion for class certification in November 2012; the company filed a petition for permission to appeal the court's ruling on class certification to the United States Court of Appeals for the Ninth Circuit. On February 13, 2013, the parties tentatively agreed to the financial terms of a settlement of the litigation, with additional terms to be finalized, subject to Court approval. A reasonable estimate of the total cost of the settlement was provided for at December 30, 2012. Actual costs will be impacted by the claimant participation rate, but the company does not expect actual costs to be materially different from our estimates. The company expects the majority of the settlement payments to be made in 2013. PAPA JOHN'S: 14,000 Plaintiffs Could Be Added in FLSA Suit ---------------------------------------------------------- A motion to certify five additional state classes over alleged violation of the Fair Labor Standards Act by Papa John's International, Inc. could result in another 14,000 plaintiffs if granted, according to the company's May 7, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2013. Perrin v. Papa John's International, Inc. and Papa John's USA, Inc. is a conditionally certified collective action filed in August 2009 in the United States District Court, Eastern District of Missouri, alleging that delivery drivers were reimbursed for mileage and expenses in violation of the Fair Labor Standards Act. Approximately 3,900 drivers out of a potential class size of 28,800 have opted into the action. A motion to certify five additional state classes is pending and could result in another 14,000 plaintiffs if granted. PAPA'S GRILL: N.C. Appeals Court Weighs Spam Faxes Class Action --------------------------------------------------------------- Chris Bagley, writing for Triangle Business Journal, reports that class-action lawsuits may be at the top of businesses' "most hated" list, but mass unsolicited faxes surely come close. The North Carolina Court of Appeals got its own chance to weigh the two against each other on June 4, and it turned back a class action attempt against two Durham restaurants that are being accused of faxing advertisements to nearly 1,000 fax machines in and around the city. The case dates to April 2004, when faxes were used somewhat more commonly than they are today. Jonathan Blitz has been attempting to sue on behalf of about 980 people who allegedly received faxed coupons for Papa's Grill and Front Street Cafe, both on Hillandale Road north of downtown. Courts have turned down several of Mr. Blitz's attempts over the years. The court ruled on June 4 that the 980 would-be plaintiffs don't have enough in common to move forward as a class. In particular, it isn't clear that the faxes to any of the other would-be plaintiffs were unsolicited, Judge Ann Marie Calabria wrote for the unanimous three-judge panel. Mr. Blitz is suing under the federal Telephone Consumer Protection Act, which requires a plaintiff to establish that a fax was unsolicited. The list of the 980 fax recipients comes from an outside contractor that the restaurants hired. Mr. Blitz could move forward with his lawsuit as an individual, but he'd be able to recover damages only for himself. He had estimated the average plaintiff's damages at $500. The two restaurants no longer exist in the same form. Their owner, Agean Inc., now runs the Blue Olive restaurant on the same site. PEABODY ENERGY: Moves to Dismiss New Claims in ERISA Lawsuit ------------------------------------------------------------ Peabody Energy Corporation updated its motion to dismiss a suit filed by the United Mine Workers of America to respond to new allegations, according to the company's May 8, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2013. On October 23, 2012, eight individual plaintiffs and the United Mine Workers of America filed a putative class action lawsuit in the U.S. District Court for the Southern District of West Virginia against the Company, one of its subsidiaries and an unrelated coal company. The lawsuit seeks to have the court obligate the defendants to maintain certain Patriot benefit plans at their current levels and to find the defendants' actions in violation of the Employee Retirement Income Security Act of 1974. On January 7, 2013, the Company defendants filed a motion to dismiss the complaint for failure to state a claim upon which relief can be granted. The plaintiffs thereafter amended their complaint to include new allegations and name two more individuals as plaintiffs. The Company defendants updated their motion to dismiss to respond to the new allegations and filed it on February 20, 2013. The Company believes the lawsuit is without merit and will vigorously defend against it. PET VALU: Stikeman Elliot Discusses Opt-Out Period Ruling --------------------------------------------------------- Ingrid Minott, Esq. -- iminott@stikeman.com -- at Stikeman Elliott LLP reports that in its decision released on May 3, 2013, the Court of Appeal for Ontario confirmed that communications between class members during the opt-out period are acceptable and overturned the decision of Justice George R. Strathy of the Ontario Superior Court of Justice which had invalidated certain opt-out notices received during the period for opting out of the class proceeding. Background In January 2011, Strathy J. (as he then was) certified a class action against Pet Valu Canada Inc. which alleged that Pet Valu had breached its contractual duty to class members by failing to share with its franchisees certain volume discounts and rebates that it received from suppliers and manufacturers. During the 60 day opt-out period, a group of Pet Valu franchisees who opposed the class action and who identified themselves as Concerned Pet Valu Franchisees ("CPVF") waged a campaign to try to persuade class members to opt-out of the class action. As a result of the CPVF's opt-out campaign, more than half of the class submitted opt-out notices. A significant time after the opt-out period expired, the representative plaintiff moved for an order setting aside the opt-out notices received after the commencement of the CPVF's campaign on the basis that the CPVF had mislead and intimidated class members into opting out. Strathy J. invalidates opt-out notices Strathy J. held that there was a "reasonable probability" that franchisees had decided to opt-out of the class action as a result of misleading information and unfair pressure amounting to intimidation caused by the CPVF's campaign. Relying on the informed and voluntary test for opting out of a class proceeding established in 176560 Ontario Ltd. v. Great Atlantic & Pacific Co. of Canada Ltd.,1 Strathy J. invalidated the opt-out notices received after the commencement of the CPVF's campaign on the basis that class members were entitled to opt-out of the class action on an informed, voluntary basis, free from undue influence. Court of Appeal sets aside order invalidating opt-out notices The Court of Appeal concluded that because Strathy J. evaluated the fairness of the opt-out process based on the incorrect belief that the viability of the class action was in peril, the CPVF's actions appeared more troubling that they actually were. The Court of Appeal held that the Class Proceedings Act, 1992 does not contemplate the politicization of the opt-out process and as such, the viability of a class action does not depend on majority support. The reduction of the class size during the opt-out period does not preclude the class action from proceeding. Therefore, while the CPVF was attempting to undermine the opt-out process by politicizing it, Strathy J. erred in his depiction of the impact of the opt-out process on the survival of the class proceeding. Regarding the timing of the motion to invalidate the opt-out notices, the Court of Appeal held that if the representative plaintiff had concerns about the nature of the CPVF's communications during the opt-out period he had a duty to protect the interest of class members by bringing the issue to the attention of the supervising judge on a timely basis. However, due to the representative plaintiff's dilatory conduct in bringing the issue to the attention of the supervising judge, Strathy J. was not afforded an opportunity to develop measures to address the problem of improper communications to the class. The Court of Appeal confirmed that while Strathy J. was correct in scrutinizing the CPVF's campaign according to the fully informed and voluntary test, he misapplied the test. His Honour's conclusion that the CPVF's campaign was misleading and intimidating was based on an inference that class members were misled or pressured into opting out of the class action by the CPVF's campaign. However, the evidence did not support an inference that the campaign was coercive. The plaintiffs failed to adduce direct evidence from class members establishing that they had been misled or intimidated into opting out. In addition, there was no evidence that any class member perceived a threat that Pet Valu might take retaliatory action against them for remaining in the class. Further, Strathy J.'s consideration of the power imbalance inherent in the franchisor/franchisee relationship in assessing the effect of the CPVF's communications was improper given his finding that Pet Valu had not been "responsible for, or connected to," the CPVF's campaign. Significantly, the Court of Appeal commented that Strathy J. incorrectly held the CPVF to a standard of objectivity with regard to its communications with class members. The communications at issue amounted to no more than opinion regarding the undesirability from a business perspective of pursing the lawsuit, rather than an attempt to address the technical merits of the action: [The CPVF] were former class members [and] had an unassailable right to speak out in opposition to the class proceeding in an attempt to convince other class members to opt out, subject only to the overriding principles set out in A &P. (para 73) Conclusion The decision of the Court of Appeal makes it clear that during the opt-out period, class members have the right to engage in debate and express their opinions about whether or not to opt-out of a class proceeding. This type of intra-class debate need not be fair or balanced. However, comments that disparage the technical merits of the class action in an effort to persuade class members to opt-out will likely be subject to greater scrutiny . Moreover, while class members are entitled to express their opinions, communications by plaintiffs and defendants with class members will be held to the higher standard of objectivity. PROLOR BIOTECH: Faces Six Class Suits Over Proposed OPKO Merger --------------------------------------------------------------- Prolor Biotech, Inc., is facing six putative class action lawsuits arising from its proposed merger with OPKO Health, Inc., according to the Company's May 10, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2013. On April 23, 2013, the Company, OPKO Health, Inc., a Delaware corporation ("OPKO"), and POM Acquisition, Inc., a Nevada corporation and a direct wholly owned subsidiary of OPKO ("POM"), entered into an agreement and plan of merger (the "Merger Agreement"). Pursuant to the Merger Agreement, POM will be merged with and into the Company (the "Merger") and the Company will be the surviving corporation and OPKO's wholly owned subsidiary. Six putative class action lawsuits have been filed in connection with the Merger: (i) Peter Turkell v. Prolor Biotech, Inc., et al. (Case No. A-13-680860-B), filed April 29, 2013, in the Eighth Judicial District Court in and for Clark County, Nevada; (ii) Floyd A. Fried v. Prolor Biotech, Inc., et al., (Case No. A-13- 681060), filed May 1, 2013, in the Eighth Judicial District Court in and for Clark County, Nevada; (iii) Marc Henzel v. Prolor Biotech, Inc., et al. (Case No. A-13-681020-C), filed May 1, 2013, in the Eighth Judicial District Court in and for Clark County, Nevada; (iv) Bradford W. Baer, et al., v. Prolor Biotech, Inc. et al. (Case No. A-13-681218-B, filed May 3, 2013, in the Eighth Judicial District Court in and for Clark County, Nevada; (v) James Hegarty v. Prolor Biotech, Inc., et al (Case No. A-13-681250-C), filed May 6, 2013, in the Eighth Judicial District Court in and for Clark County, Nevada; and (vi) Jorge L. Salas, et al. v. Prolor Biotech, Inc., et al. (Case No. A-13-681279-C), filed May 6, 2013, in the Eighth Judicial District Court in and for Clark County, Nevada. All six lawsuits name the Company, the members of its board of directors, OPKO and POM as defendants. All six lawsuits are brought by purported holders of the Company's common stock, both individually and on behalf of a putative class of the Company's stockholders, alleging that its board of directors breached its fiduciary duties in connection with the proposed Merger by purportedly failing to maximize stockholder value, and that the Company, OPKO and POM aided and abetted the alleged breaches. All six lawsuits seek equitable relief, including, among other things, to enjoin consummation of the Merger, rescission of the Merger Agreement and an award of all costs, including reasonable attorneys' fees. Certain of the complaints additionally seek compensatory and/or rescissory damages, and/or imposition of a constructive trust for any benefits improperly received by the defendants. While the Company believes that the claims made in these lawsuits are without merit and intends to defend such claims vigorously, there can be no assurance that the Company will prevail in its defense. Further, it is possible that additional claims beyond those that have already been filed will be brought by the current plaintiffs or by others in an effort to enjoin the proposed Merger or seek monetary relief from the Company. An unfavorable resolution of any such litigation surrounding the proposed Merger could delay or prevent the consummation of the Merger. In addition, the cost to the Company of defending the litigation, even if resolved in the Company's favor, could be substantial. Such litigation could also substantially divert the attention of the Company's management and its resources in general. Due to the preliminary nature of all six lawsuits, the Company is unable at this time to estimate their outcome. Prolor Biotech, Inc., is a development stage biopharmaceutical company, utilizing an exclusive license from Washington University to patented technology in the development of longer-acting versions of already-approved therapeutic proteins, through its Israeli subsidiary, Prolor Biotech Ltd. The Company was incorporated in 2003 under the laws of the state of Nevada and is headquartered in Nes-Ziona, Israel. QUALITY INN: Worker Justice Center Files Class Action ----------------------------------------------------- Mid-Hudson News reports that the Worker Justice Center of New York, based in Kingston, has filed a civil class action lawsuit against two Kingston-based hotel franchises alleging that they underpaid their housekeeping and laundry staff. Co-Executive Director Milan Bhatt said on June 4 that the hotel's workforce, mostly immigrant women, performed work ranging from cleaning rooms, laundry, and other tasks and were paid substandard wages. "I can tell you this is one of the more gross and stark set of labor violations that we have seen in some time, certainly when it comes to the minimum wage violations, it's rare that we see a situation like this where the actual rates paid to the women and other workers at the hotels were in many instances less than $5 an hour," Ms. Bhatt said. The lawsuit against the local franchises of Quality Inn and Superlodge hotels was filed in the federal court in the Northern District of New York in Albany. RANGE RESOURCES: Settles Class Action for $87.5 Million ------------------------------------------------------- Jim Fuquay, writing for Star-Telegram, reports that Fort Worth- based Range Resources said on June 4 that it has taken steps to settle an Oklahoma class-action lawsuit for $87.5 million. Plaintiffs in the suit, filed in 2010, had sought $160 million in alleged royalty underpayments on sales of natural gas. According to a filing with the Securities and Exchange Commission, the independent oil and gas producer said the suit was related to marketing costs and includes interest on the alleged underpayments. In April, Range said it set aside $35 million in potential expenses related to the case. At that time, the company said that while Oklahoma law allowed the deduction of expenses after production, the extent of those deductions could be something a judge or jury must determine. In the June 4 filing, Range said it reached a memorandum of understanding that sets forth a final settlement of $87.5 million. As a result, Range will take an additional charge of $52.5 million in the second quarter. The company also said it expects to book an $87 million gain during the same quarter on an unrelated sale of properties in West Texas. SEALED AIR: Awaits Settlement Funding in Canadian Asbestos Suit --------------------------------------------------------------- Sealed Air Corporation is awaiting the release of funds from W. R. Grace & Co. to settle a suit filed by Canadian residents affected by asbestos or asbestos-containing products, according to the company's May 8, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2013. The release will become operative upon the effective date of a plan of reorganization in Grace's United States Chapter 11 bankruptcy proceeding. In November 2004, the Company's Canadian subsidiary Sealed Air (Canada) Co./Cie learned that it had been named a defendant in the case of Thundersky v. The Attorney General of Canada, et al. (File No. CI04-01-39818), pending in the Manitoba Court of Queen's Bench. Grace and W. R. Grace & Co. - Conn. Are also named as defendants. The plaintiff brought the claim as a putative class proceeding and seeks recovery for alleged injuries suffered by any Canadian resident, other than in the course of employment, as a result of Grace's marketing, selling, processing, manufacturing, distributing and/or delivering asbestos or asbestos-containing products in Canada prior to the Cryovac Transaction. A plaintiff filed another proceeding in January 2005 in the Manitoba Court of Queen's Bench naming the Company and specified subsidiaries as defendants. The latter proceeding, Her Majesty the Queen in Right of the Province of Manitoba v. The Attorney General of Canada, et al. (File No. CI05-01-41069), seeks the recovery of the cost of insured health services allegedly provided by the Government of Manitoba to the members of the class of plaintiffs in the Thundersky proceeding. In October 2005, the company learned that six additional putative class proceedings had been brought in various provincial and federal courts in Canada seeking recovery from the Company and its subsidiaries Cryovac, Inc. and Sealed Air (Canada) Co./Cie, as well as other defendants including W. R. Grace & Co. and W. R. Grace & Co. - Conn., for alleged injuries suffered by any Canadian resident, other than in the course of employment (except with respect to one of these six claims), as a result of Grace's marketing, selling, manufacturing, processing, distributing and/or delivering asbestos or asbestos-containing products in Canada prior to the Cryovac transaction. Grace and W. R. Grace & Co. - Conn. Have agreed to defend, indemnify and hold harmless the Company and its affiliates in respect of any liability and expense, including legal fees and costs, in these actions. In April 2001, Grace Canada, Inc. had obtained an order of the Superior Court of Justice, Commercial List, Toronto (the "Canadian Court"), recognizing the Chapter 11 actions in the United States of America involving Grace Canada, Inc.'s U.S. parent corporation and other affiliates of Grace Canada, Inc., and enjoining all new actions and staying all current proceedings against Grace Canada, Inc. related to asbestos under the Companies' Creditors Arrangement Act. That order has been renewed repeatedly. In November 2005, upon motion by Grace Canada, Inc., the Canadian Court ordered an extension of the injunction and stay to actions involving asbestos against the Company and its Canadian affiliate and the Attorney General of Canada, which had the effect of staying all of the Canadian actions. The parties finalized a global settlement of these Canadian actions (except for claims against the Canadian government). That settlement, which has subsequently been amended (the "Canadian Settlement"), will be entirely funded by Grace. The Canadian Court issued an Order on December 13, 2009 approving the Canadian Settlement. The company does not have any positive obligations under the Canadian Settlement, but it is a beneficiary of the release of claims. The release in favor of the Grace parties (including the company) will become operative upon the effective date of a plan of reorganization in Grace's United States Chapter 11 bankruptcy proceeding. As filed, the PI Settlement Plan contemplates that the claims released under the Canadian Settlement will be subject to injunctions under Section 524(g) of the Bankruptcy Code. The Bankruptcy Court entered the Bankruptcy Court Confirmation Order on January 31, 2011 and the Clarifying Order on February 15, 2011 and the District Court entered the Original District Court Confirmation Order on January 30, 2012 and the Amended District Court Confirmation Order on June 11, 2012. The Canadian Court issued an Order on April 8, 2011 recognizing and giving full effect to the Bankruptcy Court's Confirmation Order in all provinces and territories of Canada in accordance with the Bankruptcy Court Confirmation Order's terms. Notwithstanding the foregoing, the PI Settlement Plan has not become effective, and the company can give no assurance that the PI Settlement Plan (or any other plan of reorganization) will become effective. Assuming that a final plan of reorganization (whether the PI Settlement Plan or another plan of reorganization) does become effective, if the final plan of reorganization does not incorporate the terms of the Canadian Settlement or if the Canadian courts refuse to enforce the final plan of reorganization in the Canadian courts, and if in addition Grace is unwilling or unable to defend and indemnify the Company and its subsidiaries in these cases, then the company could be required to pay substantial damages, which it cannot estimate at this time and which could have a material adverse effect on its consolidated financial condition and results of operations. SMITHKLINE BEECHAM: 'Flonase' Antitrust Suit Deal Gets Final Okay ----------------------------------------------------------------- District Judge Anita B. Brody granted final approval and judgment to a settlement agreement and allocation plan resolving IN RE FLONASE ANTITRUST LITIGATION, CASE NO. 08-CV-3149 (DIRECT), (E.D. Penn.). American Sales Company, Inc., Meijer, Inc., and Meijer Distribution, Inc. brought this suit on behalf of a class of 33 companies that purchase medications directly from the manufacturer in this case, purchasers of Flonase, the brand-name version of fluticasone propionate (FP), a nasal corticosteroid used to treat nasal inflammation caused by allergies. The suit claimed that Defendant SmithKline Beecham Corporation d/b/a GlaxoSmithKline PLC (GSK) improperly delayed the entry of generic FP, resulting in overcharges to the direct purchasers. The Plaintiffs allege that this allowed GSK to unlawfully maintain monopoly power in the American FP market; maintain the price of Flonase at above- competitive levels; and overcharge the direct purchasers millions of dollars by blocking unrestricted competition and access to less expensive generic versions of FP. This case has an extensive litigation history. American Sales filed the first complaint against GSK for its anticompetitive behavior in 2008. Extensive discovery began in late 2008 and continued through mid-2010, including 30 depositions of current and former employees of GSK and Roxane Laboratories, the maker of generic FP. Over a dozen expert reports and rebuttals were submitted. After oral argument, a class of 33 direct purchasers of Flonase was certified on November 12, 2010. In 2011, two separate GSK motions for summary judgment, one on causation, and one on Noerr-Pennington immunity were denied. The case was set for trial in early 2013, and both sides submitted over a dozen motions in limine. With the court's assistance, the parties reached a settlement agreement in November 2012, whereby GSK agreed to pay $150 million in exchange for the settlement of all direct purchaser claims. Following nearly five years of antitrust class action litigation between the makers of branded Flonase nasal spray, the makers of a generic brand version, indirect purchasers of the drug, and direct purchasers, the parties reached a global settlement and was preliminarily approved on January 14, 2013. The Direct Purchaser Plaintiffs filed a Corrected Motion for Approval of Settlement and Motion for an Award of Attorneys' Fees, Reimbursement of Expenses, and Payment of Incentive Awards to the Representative Plaintiffs. After holding a fairness hearing on June 3, 2013, and reviewing the Plaintiffs' submissions, Judge Brody approved the final settlement agreement and allocation plan as fair, reasonable and adequate to Class members. She also granted counsel's request for attorneys' fees, reimbursement of expenses, and incentive awards for class representative, although the incentive payment awarded was modified. Under the Settlement, the "Class" is defined as: All persons or entities in the United States and its territories who purchased Flonase nasal spray directly from Defendant (or any of its predecessors or affiliates) at any time from May 19, 2004 until March 6, 2006, excluding defendant, its predecessors, directors, management, employees, subsidiaries, parent or affiliates, and government entities or persons. To Class counsel, the Court awards a fee of 33 1/3 percent of the settlement fund, in the amount of $50,000,000, plus interest accrued thereon, if any. Furthermore, Class counsel are awarded $2,069,433 from the settlement fund to reimburse them for the expenses they incurred in the prosecution of the lawsuit, which expenses the Court finds to be fair, and reasonably incurred to achieve the benefits to the Class obtained in the settlement to the Class. Class representative American Sales is awarded $50,000 from the Settlement Fund. Class representative Meijer is awarded $40,000 from the Settlement Fund. Edward W. Mullinix, as Special Master, came to the court pro se. American Sales Company, Inc. was represented by Casandra A. Murphy, Esq., and Joseph H. Meltzer, Esq., of Kessler Topaz Meltzer & Check LLP; David S. Nalven, Esq., Edward Notargiacomo, Esq., Lauren Guth Barnes, Esq., Terence S. Ziegler, Esq., Thomas M. Sobol, Esq., and Kristen Johnson Parker, Esq., of Hagens Berman Sobol Shapiro LLP; & Michael M. Buchman, Esq., of Pomerantz Grossman Hufford Dahlstrom & Gross LLP. Meijer, Inc., is represented by David S. Nalven, Esq., of Hagens Berman Sobol Shapiro LLP; Joseph H. Meltzer, Esq., of Kessler Topaz Meltzer & Check LLP; Peter Barile, Esq., of Grant & Eisenhofer; David P. Germaine, Esq., of Vanek Vickers & Masini PC; John D. Radice, Esq., of Radice Law Firm; Joseph M. Vanek, Esq., of Vanek Vickers & Masini PC; & Linda P. Nussbaum, Esq. at Grant & Eisenhofer PA. Meijer Distribution, Inc., is represented by David S. Nalven, Esq., of Hagens Berman Sobol Shapiro LLP; Joseph H. Meltzer, Esq., of Kessler Topaz Meltzer & Check LLP; David P. Germaine, Esq., of Vanek Vickers & Masini PC; John D. Radice, Esq., of Radice Law Firm; Joseph M. Vanek, Esq., of Vanek Vickers & Masini PC; & Linda P. Nussbaum, Esq. at Grant & Eisenhofer PA. Smithkline Beecham Corporation is represented by Edward D. Rogers, Esq., Leslie E. John, Esq., Roger P. Thomasch, Esq., Stephen J. Kastenberg, Esq., Arthur Makadon, Esq., Jason A. Leckerman, Esq., Jessica Moltisanti Anthony, Esq. & Marcel S. Pratt, Esq., at Ballard, Spahr, Andrews and Ingersoll LLP. Copies of the District Court's June 14, 2013 Memorandum, and Final Order and Judgment are available at http://is.gd/B9e4ESand http://is.gd/HVZPCdfrom Leagle.com. SOUTHERN CO: Appeal From Hurricane Katrina Suit Dismissal Pending ----------------------------------------------------------------- In 2005, immediately following Hurricane Katrina, a lawsuit was filed in the U.S. District Court for the Southern District of Mississippi by Ned Comer on behalf of Mississippi residents seeking recovery for property damage and personal injuries caused by Hurricane Katrina. In 2006, the plaintiffs amended the complaint to include Southern Company and many other electric utilities, oil companies, chemical companies, and coal producers. The plaintiffs allege that the defendants contributed to climate change, which contributed to the intensity of Hurricane Katrina. In 2007, the U.S. District Court for the Southern District of Mississippi dismissed the case. On appeal to the U.S. Court of Appeals for the Fifth Circuit, a three-judge panel reversed the U.S. District Court for the Southern District of Mississippi, holding that the case could proceed, but, on rehearing, the full U.S. Court of Appeals for the Fifth Circuit dismissed the plaintiffs' appeal, resulting in reinstatement of the decision of the U.S. District Court for the Southern District of Mississippi in favor of the defendants. In 2011, the plaintiffs filed an amended version of their class action complaint, arguing that the earlier dismissal was on procedural grounds and under Mississippi law the plaintiffs have a right to re-file. The amended complaint was also filed against numerous chemical, coal, oil, and utility companies, including The Southern Company's subsidiaries: Alabama Power Company, Georgia Power Company, Gulf Power Company and Southern Power Company. In March 2012, the U.S. District Court for the Southern District of Mississippi dismissed the plaintiffs' amended complaint. In April 2012, the plaintiffs appealed the case to the U.S. Court of Appeals for the Fifth Circuit. No further updates were reported in the Company's May 10, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2013. Each Southern Company entity named in the lawsuit believes that these claims are without merit. While each Southern Company entity named in the lawsuit believes the likelihood of loss is remote based on existing case law, it is not possible to predict with certainty whether any Southern Company entity named in the lawsuit will incur any liability in connection with this matter. The ultimate outcome of this matter cannot be determined at this time. Atlanta, Georgia-based The Southern Company -- http://www.southerncompany.com/-- is an energy company serving the Southeast. A leading U.S. producer of electricity, Southern Company businesses include electric utilities in four states and a growing competitive generation company, as well as fiber optics and wireless communications. SOUTHERN STAR: Continues to Defend Price I and II Litigation ------------------------------------------------------------ Southern Star Central Corp. continues to defend a subsidiary against two class action lawsuits brought by Will Price, et al., according to the Company's May 10, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2013. The two lawsuits are: (1) Will Price, et al. v. El Paso Natural Gas Co., et al., Case No. 99 C 30, District Court, Stevens County, Kansas, or Price Litigation I; and (2) Will Price, et al. v. El Paso Natural Gas Co., et al., Case No. 03 C 23, District Court, Stevens County, Kansas, or Price Litigation II. In the Price Litigation I, filed May 28, 1999, the named plaintiffs, or Plaintiffs, have sued over 50 defendants, including the Company's subsidiary, Southern Star Central Gas Pipeline, Inc., or Central. Asserting theories of civil conspiracy, aiding and abetting, accounting and unjust enrichment, their Fourth Amended Class Action Petition alleges that the defendants have under measured the volume of, and therefore have underpaid for, the natural gas they have obtained from or measured for the Plaintiffs. The Plaintiffs seek unspecified actual damages, attorney fees, pre- and post-judgment interest, and reserved the right to plead for punitive damages. On August 22, 2003, an answer to that pleading was filed on behalf of Central. Despite a denial by the Court on April 10, 2003, of their original motion for class certification, the Plaintiffs continued to seek the certification of a class. The Plaintiffs' motion seeking class certification for a second time was fully briefed and the Court heard oral argument on the motion on April 1, 2005. On September 18, 2009, the Court denied the Plaintiffs' motion for class certification. The Plaintiffs filed a motion to reconsider that ruling on October 2, 2009. The defendants, including Central, filed a response in opposition to the Plaintiffs' motion for reconsideration on January 18, 2010. The Plaintiffs filed a reply and oral argument, which was presented before a different judge, was heard on February 10, 2010. By order dated March 31, 2010, the Court denied the Plaintiffs' October 2, 2009 motion to reconsider the earlier denial of class certification. The Plaintiffs did not file for interlocutory review of the March 31, 2010 order, but through their counsel they have initiated certain discovery to which Central and other defendants have objected. In late June of 2011, certain defendants other than Central filed motions for summary judgment seeking, among other things, a ruling on the legal issue of whether or not Plaintiffs' civil conspiracy claim could be based upon their underlying unjust enrichment claim. In January of 2012, the Court issued an order concluding that under Kansas law a conspiracy claim could be so based. These defendants petitioned for interlocutory review of that ruling, but the Court of Appeals of Kansas denied their request on February 23, 2012. It is unknown whether the Plaintiffs will follow through on discovery and/or otherwise proceed with the litigation on a non-class basis. Central cannot predict the outcome of this litigation or estimate a range of reasonably possible losses, if any. In the Price Litigation II, filed May 12, 2003, the named Plaintiffs from Case No. 99 C 30 have sued the same defendants, including Central. Asserting substantially identical legal and/or equitable theories, as in Price Litigation I, this petition alleges that the defendants have under measured the British thermal units, or Btu, content of, and therefore have underpaid for, the natural gas they have obtained from or measured for the Plaintiffs. The Plaintiffs seek unspecified actual damages, attorney fees, pre- and post-judgment interest, and reserved the right to plead for punitive damages. On November 10, 2003, an answer to that pleading was filed on behalf of Central. The Plaintiffs' motion seeking class certification, along with Plaintiffs' second class certification motion in Price Litigation I, was fully briefed and the Court heard oral argument on this motion on April 1, 2005. On September 18, 2009, the Court denied the Plaintiffs' motion for class certification. The Plaintiffs filed a motion to reconsider that ruling on October 2, 2009. The defendants, including Central, filed a response in opposition to the Plaintiffs' motion for reconsideration on January 18, 2010. The Plaintiffs filed a reply and oral argument, which was presented before a different judge, was heard on February 10, 2010. By order dated March 31, 2010, the Court denied the Plaintiffs' October 2, 2009 motion to reconsider the earlier denial of class certification. The Plaintiffs did not file for interlocutory review of the March 31, 2010 order, but through their counsel they have initiated certain discovery to which Central and other defendants have objected. In late June of 2011, certain defendants other than Central filed motions for summary judgment seeking, among other things, a ruling on the legal issue of whether or not the Plaintiffs' civil conspiracy claim could be based upon their underlying unjust enrichment claim. In January of 2012, the Court issued an order concluding that under Kansas law a conspiracy claim could be so based. These defendants petitioned for interlocutory review of that ruling, but the Court of Appeals of Kansas denied their request on February 23, 2012. It is unknown whether the Plaintiffs will follow through on discovery and/or otherwise proceed with the litigation on a non-class basis. Central cannot predict the outcome of this litigation or estimate a range of reasonably possible losses, if any. Based in Owensboro, Kentucky, Southern Star Central Corp. was incorporated in Delaware in September 2002 and operates as a holding company for its regulated natural gas pipeline operations. Southern Star Central Gas Pipeline, Inc., is Southern Star's only subsidiary and the sole source of its operating revenues and cash flows. STARBUCKS CORP: ADA Violations Suit to Include Calif. Stores ------------------------------------------------------------ A district court judge ruled that a class action lawsuit against Starbucks Corporation may proceed to include all California stores containing pickup counters in excess of the height permitted under the Americans with Disabilities Act. United States District Court Judge Dean D. Pregerson ruled on Friday, June 14, 2013, that a class action lawsuit against Starbucks Corporation alleging violations of the Americans with Disabilities Act (ADA) and Unruh Civil Rights Act may proceed to include all California stores containing pickup counters in excess of the height permitted under the ADA. The underlying class action lawsuit was filed on May 10, 2012, and seeks to force Starbucks to lower the height of its pickup counters. The plaintiffs contend that these higher counters, which are used to pass hot liquids, discriminate against disabled customers and pose safety risks. Starbucks claimed that the plaintiffs only had standing to proceed against stores that they had visited. The Court's ruling rejected this position and was in conjunction with the plaintiffs' request to amend their Complaint to allege that the purported violations of the ADA and Unruh Act resulted from common design plans implemented by Starbucks at its stores. The Complaint alleges that Starbucks has known about the problems with its counters since at least 2005, yet "eight years later, hundreds of stores in California still have unlawful counters." In the interim, Starbucks has continued to discriminate "against tens, if not, hundreds of thousands of disabled patrons in wheelchairs." Vineet Dubey, counsel representing the putative class action members, said, "It is an unfortunate reality that it often takes a class action lawsuit to force large-scale violators to address systematic abuses. We hope that Friday's ruling will expedite proceedings and ultimately force Starbucks to immediately lower the beverage pick-up counters at all of its coffee shops." Cliff Burrows, Starbucks group president, Americas, Europe, Middle East and Africa (EMEA), and Teavana, and executive sponsor of Starbucks Access Alliance, a group at Starbucks dedicated to accessibility issues, speaks to the counter height issue in a video posted on Starbucks' corporate site, stating "steps we've taken at store development across the globe, have introduced a lower-height hand-off plane." Mr. Dubey addressed the claims by Mr. Burrows saying, "We were surprised to learn that Starbucks has known about the issues that its high counters posed for customers in wheelchairs and even claimed to have introduced lower hand-off counters (referenced in a Starbucks blog). Yet, years later, stores across the country still have these inaccessible counters, creating problems and safety risks for disabled individuals." As part of their case, the plaintiffs claim that in order to build out stores quickly and inexpensively, Starbucks created pre- fabricated modular pieces that were designed to adapt to any store size. Starbucks then used the pieces, including the high pickup counters, in stores throughout the country. Starbucks has denied that the widespread issue with the height of its pickup counters resulted from a common design. STEC INC: Court Approves $35.8MM Settlement of Securities Suit -------------------------------------------------------------- The United States District Court for the Central District of California granted preliminary approval to a $35.8 million settlement of a securities suit filed against sTec, Inc., according to the company's May 8, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2013. From November 6, 2009 through March 2, 2010, seven class action complaints were filed against the Company and several of its senior officers and directors in the United States District Court for the Central District of California. The Court consolidated the complaints and appointed certain plaintiffs as the representative plaintiffs for the class (the "Lead Plaintiffs"). The Court replaced the former Lead Plaintiffs with a new Lead Plaintiff. The new Lead Plaintiff filed a consolidated amended complaint that the Court dismissed without prejudice. Thereafter, on February 22, 2011, the new Lead Plaintiff filed a second amended complaint, on behalf of all persons and entities who acquired the Company's common stock between June 16, 2009 and February 23, 2010. The second amended complaint alleges claims against the Company and several of its senior officers and directors for violations of Section 10(b) of the Securities Exchange Act of 1934 (the "Exchange Act") and Rule 10b-5 thereunder, and related claims against several of its senior officers and directors for violations of the control person provisions of Section 20A and Section 20(a) of the Exchange Act. In addition, the second amended complaint alleges claims against the Company, several of its senior officers and directors, and four of its underwriters for violations of Section 11 and Section 12(a)(2) of the Securities Act of 1933 (the "Securities Act"), and related claims against several of the Company's senior officers and directors for violations of the control person provisions of Section 15 of the Securities Act. The second amended complaint alleges generally that the Company and the individual defendants made materially false or misleading public statements and/or failed to disclose material facts in public statements relating to the Company and its business, in the case of the Exchange Act claims, during the period of June 16, 2009 through February 23, 2010, and, in the case of the Securities Act claims, in the Company's registration statement filed under the Securities Act. The second amended complaint seeks compensatory damages for all damages sustained as a result of the defendants' alleged actions and further seeks reasonable costs and expenses, rescission, counsel fees, and other relief the Court deems just and proper. The defendants filed motions to dismiss and on June 17, 2011, the Court entered an order granting the underwriters' motion to dismiss the Securities Act claims without prejudice and denying the Company's motion to dismiss the Exchange Act claims. The defendants answered the second amended complaint on July 15, 2011. On November 21, 2011, the new Lead Plaintiff filed a motion for class certification and appointment of class counsel. On January 12, 2012, the plaintiff in the class action lawsuit pending in the Superior Court of Orange County, California filed a motion for leave to intervene. The defendants opposed both of these motions. On March 7, 2012, the Court denied both motions without prejudice and stayed the action, other than discovery, to allow the new Lead Plaintiff to cure the issue that resulted in the order denying its motion for class certification. On March 23, 2012, the new Lead Plaintiff sought permission from the United States Court of Appeals for the Ninth Circuit to appeal from the order denying without prejudice its motion for class certification. The defendants opposed this request, which the Ninth Circuit denied on June 14, 2012. On June 19, 2012, the Court entered an order granting the new Lead Plaintiff's motion and certifying a class consisting of all persons and entities that, between June 16, 2009 and February 23, 2010, inclusive, purchased or otherwise acquired the publicly traded common stock of sTec, Inc., and were damaged thereby. On July 30, 2012, the parties to the federal class action attended a mediation to explore a potential settlement. During the July 30 mediation, the parties considered a settlement that would create a fund for the benefit of the settlement class, with no admission or concession of wrongdoing by the Company or the other defendants, in exchange for a full and complete release of all claims that were or could have been asserted in the federal class action, including claims under both the Exchange Act and the Securities Act. On October 5, 2012, the Company entered into a Stipulation and Agreement of Settlement (the "Settlement Agreement") to settle the federal class action. The Settlement Agreement provides for the resolution of all the pending claims in the federal class action litigation, without any admission or concession of wrongdoing by the Company or the other defendants. The Company and the other defendants have entered into the Settlement Agreement to eliminate the uncertainty, distraction, burden and expense of further litigation. The Settlement Agreement provides for a fund of $35.8 million in exchange for a full and complete release of all claims that were or could have been asserted in the federal class action. During 2012 the Company had recorded an estimated settlement accrual of $35.8 million and an insurance claim receivable of $20.6 million, resulting in a net charge of $15.2 million recorded as a component of other expense. During the first quarter of 2013 the Company and its insurance carriers transferred $15.2 million and $20.6 million, respectively, into an escrow account in the custody of the Court in accordance with the terms of the Settlement Agreement. The Settlement Agreement remains subject to final court approval and certain other conditions, including an opportunity for class members to object to or opt out of the settlement. On February 11, 2013, the Court entered an order preliminarily approving the settlement. The final approval and fairness hearing was set for May 20, 2013. The Company has made an assessment of the probability of incurring any additional losses as remote and accordingly, no additional accrued liabilities have been recorded in sTec's consolidated financial statement for this federal class action. The Company expects the settlement of the federal class action will also result in a full release of the class claims asserted in the previously disclosed class action in the Superior Court of Orange County, California. The settlement does not resolve the related federal and state shareholder derivative litigation. STEC INC: State Securities Claims Could Be Released --------------------------------------------------- STec, Inc. believes that the contemplated settlement of the securities class action in the United States District Court for the Central District of California would result in a release of the class claims asserted in a suit filed in the Superior Court of Orange County, California, according to the company's May 8, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2013. On July 1, 2011, a class action complaint was filed against the Company and several of its senior officers and directors in the Superior Court of Orange County, California. The complaint alleges claims against the Company, several of its senior officers and directors, and four of its underwriters for violations of Section 11 and Section 12(a)(2) of the Securities Act, and further alleges claims against several of the Company's senior officers and directors for violations of the control person provisions of Section 15 of the Securities Act. The complaint, which arises out of the same underlying factual allegations as the federal court class action, seeks compensatory damages and rescission or a rescissory measure of damages where applicable, reasonable costs and expenses, including counsel fees and expert fees, and other relief the Court may deem just and proper. On August 4, 2011, the defendants removed the action to the United States District Court for the Central District of California. The plaintiffs moved to remand and on October 7, 2011, the Court entered an order remanding the case back to the Superior Court of Orange County, California. On November 16, 2011, the defendants moved to stay the case pending the resolution of the class action lawsuit pending in federal court. On November 16, 2011, the defendants also filed a general demurrer to the complaint. On February 17, 2012, the Court granted the defendants' motion to stay and declined to rule on the defendants' general demurrer. The Company believes that the contemplated settlement of the federal class action, would result in a release of the class claims asserted in this Superior Court action. Accordingly, the Company has made an assessment of the probability of incurring any additional losses as remote and accordingly, no accrued liabilities have been recorded in sTec's consolidated financial statements for this Superior Court action. STERLING FINANCIAL: Awaits Order on Motion to Junk Stock Suit ------------------------------------------------------------- The United States District Court for the Eastern District of Washington has not yet to rule on a motion to dismiss a securities lawsuit filed against Sterling Financial Corporation, according to the company's May 7, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2013. On December 11, 2009, a putative securities class action was filed in the United States District Court for the Eastern District of Washington against Sterling and certain of our current and former officers. The court appointed a lead plaintiff on March 9, 2010. On June 18, 2010, the lead plaintiff filed a consolidated complaint (the "Complaint"). The Complaint purports to be brought on behalf of a class of persons who purchased or otherwise acquired Sterling's stock during the period from July 23, 2008 to October 15, 2009. The Complaint alleges that defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 by failing to disclose the extent of Sterling's delinquent commercial real estate, construction and land development loans, properly record losses for impaired loans, and properly reserve for loan losses, thereby causing Sterling's stock price to be artificially inflated during the purported class period. Plaintiffs seek unspecified damages and attorneys' fees and costs. Sterling believes the lawsuit is without merit and intends to defend against it vigorously. On August 30, 2010, Sterling moved to dismiss the Complaint. On March 2, 2011, after complete briefing, the court held a hearing on the motion to dismiss. The court has not yet issued an order on the motion, but indicated that it intends to do so in the near future. Failure by Sterling to obtain a favorable resolution of the claims set forth in the complaint could have a material adverse effect on our business, results of operations and financial condition. Currently, a loss resulting from these claims is not considered probable or reasonably estimable in amount. STERLING FINANCIAL: July 11 Hearing on ERISA Suit Settlement ------------------------------------------------------------ A fairness hearing is set for July 11, 2013 in the $3 million settlement of a class action alleging violations of the Employee Retirement Income Security Act of 1974 against Sterling Financial Corporation, according to the company's May 7, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2013. On January 20 and 22, 2010, two putative class action complaints were filed in the United States District Court for the Eastern District of Washington against Sterling, as well as certain of Sterling's current and former officers and directors. The two complaints were merged in a Consolidated Amended Complaint (the "Complaint") filed on July 16, 2010 in the same court. The Complaint does not name all of the individuals named in the prior complaints, but it is expected that additional defendants will be added. The Complaint alleges that the defendants breached their fiduciary duties under sections 404 and 405 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), with respect to the Sterling Savings Bank Employee Savings and Investment Plan (the "401(k) Plan") and the FirstBank Northwest Employee Stock Ownership Plan ("ESOP") (collectively, the "Plans"). Specifically, the Complaint alleges that the defendants breached their duties by investing assets of the Plans in Sterling's securities when it was imprudent to do so, and by investing such assets in Sterling securities when defendants knew or should have known that the price of those securities was inflated due to misrepresentations and omissions about Sterling's business practices. The business practices at issue include alleged over-reliance on risky construction loans; alleged inadequate loan reserves; alleged spiking increases in nonperforming assets, nonperforming loans, classified assets, and over 90-day delinquent loans; alleged inadequate accounting for rising loan payment shortfalls; alleged unsafe and unsound banking practices; and a capital base that was allegedly inadequate to withstand the significant deterioration in the real estate markets. The putative class periods are October 22, 2007 to the present for the 401(k) Plan class, and October 22, 2007 to November 14, 2008 for the ESOP class. The Complaint seeks damages of an unspecified amount and attorneys' fees and costs. On September 26, 2012, Sterling received a letter from the U.S. Department of Labor (the "Department of Labor") containing similar allegations as those set forth in the Complaint, demanding that the violations alleged in the Department of Labor's letter be corrected and notifying Sterling that the Department of Labor may take legal action in connection with such allegations, including assessing a civil money penalty. Failure by Sterling to obtain a favorable resolution of the claims set forth in the Complaint or in the letter from the Department of Labor could have a material adverse effect on Sterling's business, results of operations, and financial condition. In January 2013, a tentative settlement was reached, pursuant to which Sterling agreed to pay $3.0 million to settle the claims. The settlement is subject to approval by the court and the Department of Labor. On March 29, 2013, the Court preliminarily approved the settlement, with the final fairness hearing set for July 11, 2013. TAMARA YOUNKER: Dental Class Action Nears Resolution ---------------------------------------------------- WAND News reports that one previous Macon County dentists made plea agreements to official misconduct. One was last year and the other was in 2011. This came after patients found out a dental assistant was not licensed. Now, nearly three years later, a class action lawsuit against them is finally coming to a close. Doctor Kenneth Webb and his then assistant Tamara Younker were lying to their patients. Patients said, she was performing x-rays and pulling teeth, without the proper paperwork. Now patients are finally getting paid, but not what they may have hoped for. "We have a fund of $100,000 that's subject to the following, attorney's fees and costs, which reduced that settlement to a little over $60,000 which is to be distributed among claims" Attorney William Hourigan said. That money will be spread thin. The attorney has 120 clients, but anyone for about eight years with no permanent injury can file a claim. "Class members will have to fill out a form indicating that they received dental from Tamara Younker and get that form to the claim administrator before the time has ended," Mr. Hourigan added. However, former patients don't have to file the claim if you think you deserve more money. There will be a provision on the form on how to opt out "If you don't opt out of the class and they don't file a claim form, they won't be able to file a lawsuit later," Mr. Hourigan told WAND News. The attorney also gave his thought regarding filing a lawsuit. "The dentist has lost his license to practice in Illinois and I think he's going to lose it in Missouri, so it's unlikely that he's going to have a personal fund to compensate people. So my thought is that this is going to be it and that's life. It's better than nothing," Mr. Hourigan said. Ms. Younker's probation continues. Doctor Webb made a plea agreement to official misconduct. His probation ended last May. The attorney will be mailing out notices for his clients. If you think you may qualify for a share of this class action lawsuit, there are notice and claim forms at both the Macon County Health Department and the Macon County Circuit Clerk's Office. You must submit a claim form to the class action administrator. TANGOE INC: Connecticut Court Consolidated 3 Securities Suits ------------------------------------------------------------- The U.S. District Court for the District of Connecticut has consolidated three securities class action lawsuit against Tangoe, Inc., according to the Company's May 10, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2013. On March 1, 2013, Lewis Stein, a purported purchaser of the Company's common stock, filed a complaint in the United States District Court for the District of Connecticut against the Company, its President and Chief Executive Officer and its Chief Financial Officer, Stein v. Tangoe, Inc., Albert R. Subbloie, Jr. and Gary R. Martino. The plaintiff alleges violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") and Rule 10b-5 promulgated under the Exchange Act. The plaintiff seeks to represent a class of purchasers of the Company's common stock from December 20, 2011, through September 5, 2012, and alleges that during this period the market price of the Company's common stock was inflated by false or misleading statements principally concerning the results of the Company's business. On April 30, 2013, Mr. Stein and another purported purchaser of the Company's common stock, James Gibson, filed a motion to be appointed as lead plaintiffs in connection with this putative class action and to have their attorneys approved as lead counsel. The court has scheduled a hearing for May 13, 2013, to appoint a lead plaintiff and lead counsel for all of the cases consolidated with this action. The outcome of this matter is not presently determinable. On March 15, 2013, Calvin Rector, a purported purchaser of the Company's common stock, filed a complaint in the United States District Court for the District of Connecticut against the Company, its President and Chief Executive Officer and its Chief Financial Officer, Rector v. Tangoe, Inc., Albert R. Subbloie, Jr. and Gary R. Martino. The plaintiff alleges violations of Sections 10(b) and 20(a) of the Exchange Act and Rule 10b-5 promulgated under the Exchange Act. The plaintiff seeks to represent a class of purchasers of the Company's common stock from December 20, 2011, through September 5, 2012, and alleges that during this period the market price of the Company's common stock was inflated by false or misleading statements principally concerning the results of the Company's business. On April 3, 2013, the Court consolidated this case with the Stein case. The outcome of this matter is not presently determinable. On April 12, 2013, Timothy Kelley, a purported purchaser of the Company's common stock, filed a complaint in the United States District Court for the District of Connecticut against the Company, its President and Chief Executive Officer and its Chief Financial Officer, Kelley v. Tangoe, Inc., Albert R. Subbloie, Jr. and Gary R. Martino. The plaintiff alleges violations of Sections 10(b) and 20(a) of the Exchange Act and Rule 10b-5 promulgated under the Exchange Act. The plaintiff seeks to represent a class of purchasers of the Company's common stock from December 20, 2011, through September 5, 2012, and alleges that during this period the market price of the Company's common stock was inflated by false or misleading statements principally concerning the results of the Company's business. On April 26, 2013, the court consolidated the case with the Stein case. The outcome of this matter is not presently determinable. Tangoe, Inc. -- http://www.tangoe.com/-- is a Delaware corporation based in Orange, Connecticut. Tangoe is a global provider of communications lifecycle management software and services to a wide range of large and medium sized commercial enterprises and governmental agencies. TEMPUR-PEDIC INT'L: Awaits Prelim. OK of Merger Suits Settlement ---------------------------------------------------------------- Tempur-Pedic International Inc. is awaiting preliminary court approval of its settlement of a consolidated merger-related lawsuit in Delaware, according to the Company's May 10, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2013. On September 27, 2012, the Company announced that it had entered into an Agreement and Plan of Merger ("Merger Agreement") to acquire Sealy Corporation ("Sealy"), by merging Sealy with a newly-formed subsidiary of the Company (the "Merger") (collectively, the "Sealy Acquisition"). Sealy owns some of the most recognized bedding brands in the world, and manufactures and markets a broad range of mattresses and foundations that appeal to a broad range of consumers under the Sealy(R), Sealy Posturepedic(R), Sealy Embody(TM), Optimum(TM) by Sealy Posturepedic(R), Stearns & Foster(R), and Bassett(R) brands. In addition to traditional innerspring mattresses, Sealy leverages its brand portfolio to also manufacture and market in the U.S. and internationally specialty (non-innerspring) latex and viscoelastic bedding products. Sealy is also a leading global brand with top market positions in Canada, Mexico and Argentina. Sealy operates through wholly-owned subsidiaries in the U.S., Canada, Mexico, Puerto Rico, Argentina, Uruguay and Chile and through joint ventures and licensee partners in other international markets. The Company is aware of six purported class action lawsuits relating to the Merger with Sealy, one in North Carolina state court and five in the Delaware Court of Chancery, filed by purported stockholders of Sealy against Sealy, Sealy's directors, the Company and Silver Lightning Merger Company, a subsidiary of the Company (the "Merger Sub"). The six lawsuits are: (1) Benjamin B. Clarke, Individually and On Behalf of All Others Similarly Situated v. Lawrence J. Rogers, Richard W. Roedel, John B. Replogle, Paul J. Norris, Dean B. Nelson, Gary E. Morin, James W. Johnson, Deborah G. Ellinger, Simon E. Brown, Sealy Corporation, Tempur-Pedic International Inc. and Silver Lightning Merger Company, filed October 2, 2012; (2) Robert A. Justewicz, Individually and On Behalf of All Others Similarly Situated v. Sealy Corporation, Lawrence J. Rogers, Paul J. Norris, James W. Johnson, Simon E. Brown, Gary E. Morin, Dean B. Nelson, Richard W. Roedel, Deborah G. Ellinger, John B. Replogle, Silver Lightning Merger Company and Tempur-Pedic International Inc., filed Oct. 3, 2012; (3) Deno Singh, On Behalf of Himself and All Others Similarly Situated v. Lawrence J. Rogers, Richard W. Roedel, John B. Replogle, Paul J. Norris, Dean B. Nelson, Gary E. Morin, James W. Johnston, Deborah G. Ellinger, Simon E. Brown, Sealy Corporation, Tempur-Pedic International Inc. and Silver Lightning Merger Company, filed October 15, 2012; (4) Jay M. Plourde, On Behalf of Himself and All Others Similarly Situated v. Sealy Corporation, Lawrence J. Rogers, Paul Norris, James W. Johnston, Simon E. Brown, Gary E. Morin, Dean B. Nelson, Richard Roedel, Deborah G. Ellinger, John B. Replogel, Tempur-Pedic International Inc., Kohlberg Kravis Roberts & Co. L.P. and Silver Lightning Merger Company, filed October 15, 2012; (5) Keith Gamble, Individually and On Behalf of All Others Similarly Situated v. Lawrence J. Rogers, Richard W. Roedel, John B. Replogle, Paul J. Norris, Dean B. Nelson, Gary E. Morin, James W. Johnston, Deborah G. Ellinger, Simon E. Brown, Sealy Corporation, Tempur-Pedic International Inc. and Silver Lightning Merger Company, filed October 16, 2012; and (6) Curtis Nall, On Behalf of Himself and All Others Similarly Situated Shareholders of Sealy Corporation v. Lawrence C. Rogers, James W. Johnston, Simon E. Brown, Gary E. Morin, Dean B. Nelson, Richard Roedel, Deborah G. Ellinger, John B. Replogle, Paul J. Norris, Sealy Corporation, Tempur-Pedic International Inc., KKR Millennium GP LLC, KKR & Co. L.P., and Silver Lightning Merger Company, filed October 17, 2012. Justewicz v. Sealy Corp., et al. ("North Carolina Action") was filed on October 3, 2012, in the General Court of Justice, Superior Court Division in North Carolina ("North Carolina Court"). On November 13, 2012, the Delaware Court of Chancery consolidated all five Delaware actions into a single action, which is now styled as In re Sealy Corporation Shareholder Litigation ("Delaware Action"). The Plaintiff in the North Carolina Action and plaintiffs in the Delaware Action allege, among other things, that the defendants have breached their fiduciary duties to Sealy's stockholders and that Sealy, the Company and Merger Sub aided and abetted the Sealy directors' alleged breach of fiduciary duties. The complaints also claim that the consideration to be paid in the Merger to Sealy stockholders (the "Merger Consideration") is inadequate, that the Merger Agreement contains unfair deal protection provisions, that Sealy's directors are subject to conflicts of interests, and that the preliminary information statement filed by Sealy with the Securities and Exchange Commission on October 30, 2012, omits material information concerning the negotiation process leading to the proposed transaction and the valuation of Sealy. On October 12, 2012, the plaintiff in the North Carolina Action brought a Motion for Expedited Discovery and for a Hearing and Briefing Schedule on the Plaintiff's Motion for a Preliminary Injunction. On October 24, 2012, the defendants in the North Carolina Action brought a Motion to Stay the North Carolina Action in favor of the Delaware Action. On November 7, 2012, the North Carolina Action plaintiff amended his complaint to add allegations claiming that the preliminary information statement filed by Sealy on October 30, 2012, did not provide sufficient information. Following briefing and a hearing on November 8, 2012, the North Carolina Court stayed the North Carolina Action. On November 19, 2012, the plaintiffs in the Delaware Action filed a consolidated amended complaint, a motion for expedited proceedings, and a motion for a preliminary injunction. The Company believes that the allegations in these lawsuits are entirely without merit. On January 22, 2013, solely to avoid the burden, expense and uncertainties inherent in litigation, and without admitting any liability or wrongdoing, the parties to the Delaware Action entered into a memorandum of understanding setting forth an agreement-in-principle providing for a settlement of the Delaware Action (the "Proposed Settlement"). In connection with the Proposed Settlement, Sealy agreed to include certain supplemental disclosures in the information statement to be sent to Sealy stockholders. The Proposed Settlement provides for the release of all claims by Sealy stockholders concerning the Merger Agreement, the Merger, and the disclosures made in connection with the Merger, including all claims that were asserted or could have been asserted in the Delaware Action and the North Carolina Action. The Proposed Settlement does not provide for the payment of any additional monetary consideration to Sealy stockholders and the Proposed Settlement does not affect the rights of any Sealy stockholder to seek appraisal pursuant to Section 262 of the DGCL. The Proposed Settlement is subject to approval by the Delaware Court of Chancery and a hearing has been scheduled for May 30, 2013, to approve the Settlement. The outcome of the litigation is uncertain, however, and although the Company does not currently expect to incur a loss with respect to these matters, the Company cannot currently predict the manner and timing of the resolution of the Merger Lawsuits, an estimate of a range or losses or any minimum loss that could result in the event of an adverse verdict in these lawsuits, or whether the Company's or Sealy's applicable insurance policies will provide sufficient coverage for these claims. Accordingly, the Company can give no assurance that these matters will not have a material adverse effect on the Company's financial position or results of operations. Tempur-Pedic International Inc. is a manufacturer, marketer and distributor of premium mattresses and pillows, which it sells in approximately 80 countries under the TEMPUR(R) and Tempur-Pedic(R) brands. The Company is headquartered in Lexington, Kentucky. TEMPUR-PEDIC INT'L: Continues to Defend Two Securities Suits ------------------------------------------------------------ Tempur-Pedic International Inc. continues to defend itself against two securities class action lawsuits pending in Kentucky, according to the Company's May 10, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2013. On June 20 and 25, 2012, two lawsuits were filed against the Company and two named executive officers in the United States District Court for the Eastern District of Kentucky, purportedly on behalf of a proposed class of shareholders who purchased the Company's stock between January 25, 2012, and June 5, 2012. The lawsuits are: (1) Norfolk County Retirement System, Individually and on behalf of all others similarly situated, Plaintiff v. Tempur-Pedic International Inc., Mark A. Sarvary and Dale E. Williams; filed June 20, 2012; and (2) Arthur Benning, Jr., Individually and on behalf of all others similarly situated, Plaintiff v. Tempur-Pedic International Inc., Mark A. Sarvary and Dale E. Williams; filed June 25, 2012. The complaints assert claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, alleging, among other things, false and misleading statements and concealment of material information concerning the Company's competitive position, projected net sales, earnings per diluted share and related financial performance for the Company's 2012 fiscal year. The plaintiffs seek damages, interest, costs, attorney's fees, expert fees and unspecified equitable/injunctive relief. The Company strongly believes that the shareholder lawsuits lack merit and intends to defend against the claims vigorously. The outcome of these matters is uncertain, however, and although the Company does not currently expect to incur a loss with respect to these matters, the Company cannot currently predict the manner and timing of the resolution of the lawsuits, an estimate of a range of losses or any minimum loss that could result in the event of an adverse verdict in these lawsuits, or whether the Company's applicable insurance policies will provide sufficient coverage for these claims. Accordingly, the Company can give no assurance that these matters will not have a material adverse effect on the Company's financial position or results of operations. Tempur-Pedic International Inc. is a manufacturer, marketer and distributor of premium mattresses and pillows, which it sells in approximately 80 countries under the TEMPUR(R) and Tempur-Pedic(R) brands. The Company is headquartered in Lexington, Kentucky. TIP TOP: Recalls 18,000 Pounds of Roasted Chicken Product --------------------------------------------------------- Tip Top Poultry, Inc., a Rockmart, Georgia establishment, is recalling approximately 18,000 pounds of mechanically separated chicken product that may contain pieces of plastic, the U.S. Department of Agriculture's Food Safety and Inspection Service announced. The following product is subject to recall: * 250 - lb. drums of Tip Top roasted mechanically separated chicken. The product subject to recall was packaged on April 29, 2013, and was distributed to one establishment for further processing for institutional use. Cases can be identified by the case code 55252, pack date 04/29/13, and the establishment number P-17453 within the mark of inspection. The pieces of plastic are from a washer that broke. The problem was discovered at the further processing establishment as they were using the product to formulate a soup base. FSIS has received no reports of illness due to consumption of these products. Anyone concerned about an illness should contact a healthcare provider. FSIS routinely conducts recall effectiveness checks to verify that recalling firms notify their customers of the recall and that steps are taken to make certain that recalled product is no longer available to consumers. Consumers and members of the media who have questions regarding the recall can contact Laura Holder, Public Relations, at (770) 579-4289. Consumers with food safety questions can "Ask Karen," the FSIS virtual representative available 24 hours a day at http://www.AskKaren.gov/ "Ask Karen" live chat services are available Monday through Friday from 10:00 a.m. to 4:00 p.m. Eastern Time. The toll-free USDA Meat and Poultry Hotline 1-888- MPHotline (1-888-674-6854) is available in English and Spanish and can be reached from 10:00 a.m. to 4:00 p.m. Eastern Time Monday through Friday. Recorded food safety messages are available 24 hours a day. UNITED ONLINE: Completes Distribution of Settlement in Fraud Suit ----------------------------------------------------------------- The distribution to all settlement claimants in the lawsuit alleging violations of California Business and Professions Code against United Online, Inc. was completed in March 2013, according to the company's May 8, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2013. In October 2008, Anthony Michaels filed a purported class action complaint against Classmates Online, Inc., now known as Memory Lane, Inc., Classmates Media Corporation and United Online, Inc. in Superior Court of the State of California, County of Los Angeles, alleging causes of action for intentional misrepresentation, negligent misrepresentation, negligence, fraudulent concealment, and for violations of California Business and Professions Code sections 17200 and 17500 et seq. In December 2008, Xavier Vasquez filed a purported class action complaint against Classmates Online, Inc., Classmates Media Corporation and United Online, Inc. in Superior Court of Washington, Kings County, alleging causes of action for violation of the Washington Consumer Protection Act, violation of California's Unfair Competition Law, violation of California's Consumer Legal Remedies Act, unjust enrichment and violation of California Civil Code section 1694, dealing with dating services contracts. In both actions, the plaintiffs sought injunctive relief and damages. In April 2009, the United States District Court of the Western District of Washington consolidated the Michaels and the Vasquez actions and designated the Michaels action as the lead case. In March 2010, the parties entered into a comprehensive class action settlement agreement. In February 2011, the court denied final approval of such settlement agreement. In March 2011, the parties entered into a revised settlement agreement and, in July 2011, the court issued an order granting preliminary approval of the revised settlement agreement. The parties subsequently modified the settlement agreement in August 2011. In June 2012, the District Court issued an order granting final approval of the settlement and certifying the class. In July 2012, four separate notices of appeal of the District Court order were filed with the United States Court of Appeals for the Ninth Circuit. Such appeals have since been resolved and the order granting final approval of the settlement and certifying the class is final. The settlement administrator is in the process of paying the claimants. The distribution to all claimants was completed in March 2013. UNITED ONLINE: June Hearing Set in Suit Over "Unfair Competition" ----------------------------------------------------------------- A trial date of June 18, 2013 had been set in a suit alleging false designation of origin under the Lanham Act, 15 U.S.C. section 1125, and state and common law unfair competition against United Online, Inc., according to the company's May 8, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2013. In June 2011, Memory Lane, Inc., a California corporation, filed a complaint in United States District Court, Central District of California, against Classmates International, Inc., Classmates Online, Inc. and the Company's Memory Lane, Inc. subsidiary ("Memory Lane"), alleging false designation of origin under the Lanham Act, 15 U.S.C. section 1125, and state and common law unfair competition. The complaint includes requests for an award of damages and for preliminary and permanent injunctive relief. Notwithstanding the request for preliminary injunctive relief, no motion for such relief has been filed. Memory Lane responded to the complaint in September 2011. In October 2011, the plaintiff amended its complaint to, among other things, dismiss Classmates International, Inc. and add United Online, Inc. as a defendant. The discovery cut-off date was in October 2012. A trial date of June 18, 2013 has been set. UNITED ONLINE: No Trial Date Yet in "Trilegiant" Suit ----------------------------------------------------- No trial date has been set in the suit In re Trilegiant Corporation, Inc. after defendants responded to a consolidated amended complaint, according to United Online, Inc.'s May 8, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2013. "Kelm Class Action" In March 2012, Hope Kelm, Barbara Timmcke, Regina Warfel, Brett Reilly, Juan M. Restrepo, and Jennie H. Pham filed a purported class action complaint (the "Kelm Class Action") in United States District Court, District of Connecticut, against the following defendants: (i) Chase Bank USA, N.A., Bank of America, N.A., Capital One Financial Corporation, Citigroup, Inc., and Citibank, N.A. (collectively,2 the "Credit Card Company Defendants"); (ii) 1-800-Flowers.com, Inc., United Online, Inc., Memory Lane, Inc., Classmates International, Inc., FTD Group, Inc., Days Inns Worldwide, Inc., Wyndham Worldwide Corporation, PeopleFindersPro, Inc., Beckett Media LLC, Buy.com, Inc., Rakuten USA, Inc., IAC/InterActiveCorp, and Shoebuy.com, Inc. (collectively, the "E- Merchant Defendants"); and (iii) Trilegiant Corporation, Inc. ("Trilegiant"), Affinion Group, LLC ("Affinion"), and Apollo Global Management, LLC ("Apollo"). The complaint alleges: (1) violations of the Racketeer Influenced Corrupt Organizations Act ("RICO") by all defendants, and aiding and abetting violations of such act by the Credit Card Company Defendants; (2) aiding and abetting violations of federal mail fraud, wire fraud and bank fraud statutes by the Credit Card Company Defendants; (3) violations of the Electronic Communications Privacy Act ("ECPA") by Trilegiant, Affinion and the E-Merchant Defendants, and aiding and abetting violations of such act by the Credit Card Company Defendants; (4) violations of the Connecticut Unfair Trade Practices Act by Trilegiant, Affinion, Apollo, and the E-Merchant Defendants, and aiding and abetting violations of such act by the Credit Card Company Defendants; (5) violation of California Business and Professions Code section 17602 by Trilegiant, Affinion, Apollo, and the E-Merchant Defendants; and (6) unjust enrichment by all defendants. The plaintiffs seek class certification, restitution and disgorgement of all amounts wrongfully charged to and received from plaintiffs, damages, treble damages, punitive damages, preliminary and permanent injunctive relief, attorneys' fees, costs of suit, and pre- and post-judgment interest on any amounts awarded. "Miller Class Action" In March 2012, Debra Miller and William Thompson filed a purported class action complaint (the "Miller Class Action") in United States District Court, District of Connecticut, against the following defendants: (i) Trilegiant, Affinion, Apollo, Vertrue, Inc., Webloyalty.com, Inc., and Adaptive Marketing, LLC (collectively, the "Membership Companies"); (ii) 1-800-Flowers.com, Inc., Beckett Media LLC, Buy.com, Inc., Classmates International, Inc., Days Inn Worldwide, Inc., FTD Group, Inc., IAC/Interactivecorp, Inc., Memory Lane, Inc., Peoplefinderspro, Inc., Rakuten USA, Inc., Shoebuy.com, Inc., United Online, Inc., Wells Fargo & Company, and Wyndham Worldwide Corporation (collectively, the "Marketing Companies"); and (iii) Bank of America, N.A., Capital One Financial Corporation, Chase Bank USA, N.A., and Citibank, N.A. (collectively, the "Credit Card Companies"). The complaint alleges: (1) violations of the RICO by all defendants, and aiding and abetting violations of such act by the Credit Card Companies; (2) aiding and abetting violations of federal mail fraud, wire fraud and bank fraud statutes by the Credit Card Companies; (3) violations of the ECPA by the Membership Companies and the Marketing Companies, and aiding and abetting violations of such act by the Credit Card Companies; (4) violations of the Connecticut Unfair Trade Practices Act by the Membership Companies and the Marketing Companies, and aiding and abetting violations of such act by the Credit Card Companies; (5) violation of California Business and Professions Code section 17602 by the Membership Companies and the Marketing Companies; and (6) unjust enrichment by all defendants. The plaintiffs seek class certification, restitution and disgorgement of all amounts wrongfully charged to and received from plaintiffs, damages, treble damages, punitive damages, preliminary and permanent injunctive relief, attorneys' fees, costs of suit, and pre- and post-judgment interest on any amounts awarded. In April 2012, the Kelm Class Action and the Miller Class Action were consolidated with a related case under the case caption In re Trilegiant Corporation, Inc. In September 2012, the plaintiffs filed their consolidated amended complaint and named five additional defendants. The defendants have responded to the consolidated amended complaint. No trial date has been set. UNITED ONLINE: Awaits Court Ruling on Consolidation Motion ---------------------------------------------------------- Plaintiff David Frank is awaiting a ruling on its motion to consolidate the suit he filed with the In re Trilegiant Corporation, Inc. action, according to United Online, Inc.'s May 8, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2013. In addition, in December 2012, David Frank filed a purported class action complaint (the "Frank Class Action") in United States District Court, District of Connecticut, against the following defendants: Trilegiant, Affinion, Apollo (collectively, the "Frank Membership Companies"); 1-800-Flowers.com, Inc., Beckett Media LLC, Buy.com, Inc., Classmates International, Inc., Days Inn Worldwide, Inc., FTD Group, Inc., Hotwire, Inc., IAC/Interactivecorp, Inc., Memory Lane, Inc., Orbitz Worldwide, LLC, PeopleFindersPro, Inc., Priceline.com, Inc., Shoebuy.com, Inc., TigerDirect, Inc., United Online, Inc., and Wyndham Worldwide Corporation (collectively, the "Frank Marketing Companies"); Bank of America, N.A., Capital One Financial Corporation, Chase Bank USA, N.A., Chase Paymentech Solutions, LLC, Citibank, N.A., Citigroup, Inc., and Wells Fargo Bank, N.A. (collectively, the "Frank Credit Card Companies"). The complaint alleges: (1) violations of RICO by all defendants; (2) aiding and abetting violations of such act by the Frank Credit Card Companies; (3) aiding and abetting commissions of mail fraud, wire fraud and bank fraud by the Frank Credit Card Companies; (4) violation of the ECPA by the Frank Membership Companies and the Frank Marketing Companies, and aiding and abetting violations of such act by the Frank Credit Card Companies; (5) violations of the Connecticut Unfair Trade Practices Act by the Frank Membership Companies and the Frank Marketing Companies, and aiding and abetting violations of such act by the Frank Credit Card Companies; (6) violation of California Business and Professions Code section 17602 by the Frank Membership Companies and the Frank Marketing Companies; and (7) unjust enrichment by all defendants. The plaintiffs seek class certification, restitution and disgorgement of all amounts wrongfully charged to and received from plaintiffs, damages, treble damages, punitive damages, preliminary and permanent injunctive relief, attorneys' fees, costs of suit, and pre- and post-judgment interest on any amounts awarded. On January 23, 2013, the plaintiff moved to consolidate the Frank Class Action with the In re Trilegiant Corporation, Inc. action. In response, the court ordered the plaintiff to show cause as to why, among other things, the plaintiff should be afforded named plaintiff status. The plaintiff filed his response to the order to show cause on February 15, 2013. The court has not yet ruled upon the request for consolidation or the order to show cause. UNITED STATES: ACLU Files Class Action Over Border Patrol Coercion ------------------------------------------------------------------ Megan Burke, Maureen Cavanaugh and Peggy Pico, writing for Fronteras Desk, report that the American Civil Liberties Union of San Diego and Imperial Counties has launched a new project to insure that people here illegally are not exploited. The Border Litigation Project will focus on how immigrants in custody are treated by law enforcement. In that spirit, the ACLU on June 4 announced a class-action lawsuit against the Department of Homeland Security for allegedly intimidating people arrested by the Border Patrol into signing away their rights. The complaint alleges that Border Patrol agents and Immigration and Customs Enforcement officers regularly pressure immigrants being held in detention facilities to sign a "voluntary departure" form. By signing the form, the person waives his or her right to have a case heard before an immigration judge. They are deported sometimes within hours and are banned from returning to the United States for 10 years. "It's unconscionable that immigration agents perpetually fail to tell individuals with the most to lose that there are direct and certain consequences of taking voluntary departure," said Sean Riordan, staff attorney for the ACLU of San Diego & Imperial Counties. "One of the most serious of those consequences is a 10-year bar prohibiting return to the United States. No one should have to make such a critical decision without knowing all the repercussions," he said. The ACLU said all of the seven plaintiffs in the case were approached by Border Patrol or Immigration and Customs Enforcement officers while "doing routine daily activities, such as waiting for a bus." A spokesperson for Immigration and Customs Enforcement says the agency will send a statement in response to this lawsuit. This story will be updated with that statement when it is received. WILLIAMS COMPANIES: Plans to Seek Review of Antitrust Suit Ruling ----------------------------------------------------------------- The Williams Companies, Inc. intends either to request an en banc rehearing before the Ninth Circuit Court of Appeals or to seek a writ of certiorari from the U.S. Supreme Court against a ruling that permitted plaintiffs to pursue certain state antitrust claims for natural gas sales, according to the company's May 8, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2013. Direct and indirect purchasers of natural gas in various states filed class actions in Nevada federal district court against WPX and others alleging the manipulation of published gas price indices and seeking unspecified amounts of damages. In 2011, the Nevada district court granted WPX's joint motions for summary judgment to preclude the plaintiffs' state law claims because the federal Natural Gas Act gives the Federal Energy Regulatory Commission exclusive jurisdiction to resolve those issues. The court also denied the plaintiffs' class certification motion as moot. The plaintiffs appealed the court's ruling and on April 10, 2013, the Ninth Circuit Court of Appeals reversed the district court and remanded the cases to the district court to permit the plaintiffs to pursue their state antitrust claims for natural gas sales that were not subject to FERC jurisdiction under the Natural Gas Act. WPX and the other defendants intend either to request an en banc rehearing before the Ninth Circuit or to seek a writ of certiorari from the U.S. Supreme Court. WILLIAM COMPANIES: Estimates $32MM Loss in Dispute v. FHRA ---------------------------------------------------------- The Williams Companies, Inc. currently estimates that its reasonably possible loss exposure in pursuing claims against Flint Hills Resources Alaska, LLC (FHRA) in relation to a suit over an Alaska refinery contamination could range from an insignificant amount up to $32 million, according to the company's May 8, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2013. In January 2010, James West filed a class action lawsuit in state court in Fairbanks, Alaska on behalf of individual property owners whose water contained sulfolane contamination allegedly emanating from the Flint Hills Oil Refinery in North Pole, Alaska. The suit named the company's subsidiary, Williams Alaska Petroleum Inc. (WAPI), and Flint Hills Resources Alaska, LLC (FHRA), a subsidiary of Koch Industries, Inc., as defendants. The company owned and operated the refinery until 2004 when it sold it to FHRA. The company and FHRA have made claims under the pollution liability insurance policy issued in connection with the sale of the North Pole refinery to FHRA. The company and FHRA also filed claims against each other seeking, among other things, contractual indemnification alleging that the other party caused the sulfolane contamination. In 2011, the company and FHRA settled the James West claim. The company's claims against FHRA and their claims against the company remain outstanding. The company and FHRA filed motions for summary judgment on the other's claims, but the motions are unlikely to resolve all the outstanding claims. An April 2013 trial date had been scheduled but has been stricken and has not been reset. The company currently estimates that its reasonably possible loss exposure in this matter could range from an insignificant amount up to $32 million, although uncertainties inherent in the litigation process, expert evaluations, and jury dynamics might cause its exposure to exceed that amount. WILLIS: Faces Another Class Action Over Stanford Ponzi Scheme ------------------------------------------------------------- The Insurance Insider reports that Willis has been hit by another class action suit accusing the broker of helping perpetuate Allen Stanford's $7 billion Ponzi scheme. A group of 64 plaintiffs filed the complaint in the Southern District Court of Florida on May 21 collectively claiming over $83.5 million in damages. The plaintiffs claim to have purchased Stanford-issued certificates of deposit (CDs) based on Stanford's alleged misrepresentations that the notes were safe and liquid investments. * Battea Reports $678MM Settlement Distributions in 1st Qtr. 2013 ----------------------------------------------------------------- Battea -- Class Action Services, LLC, a provider of securities class action recovery services for institutional investors, reported quarterly securities class action settlement fund payouts for first quarter 2013 and fourth quarter 2012. During the first quarter of 2013, there were primary distributions in 27 cases, representing total settlement funds of approximately $678 million. The average settlement fund size was approximately $25 million, with the largest settlement exceeding $205 million. A total of six settlements were disbursed in January, ten settlements in February and 11 settlements in March. The table below lists the five largest securities class action settlements that distributed in the first quarter of 2013: Disbursement Company Ticker Settlement Date Fund 1/16/2013 CENTRO PROPERTIES GROUP CNP AU 205,120,000 3/4/2013 MF GLOBAL, LTD. MF 90,000,000 MFS MASSACHUSETTS FINANCIAL SERVICES COMPANY - MUTUAL 3/29/2013 FUNDS MFS FUNDS 75,042,250 ALLIANCEBERNSTEIN MUTUAL 3/14/2013 FUNDS AB FUNDS 74,586,650 2/28/2013 SIGMA PHARMACEUTICALS, LTD. SIP AU 59,000,000 During the fourth quarter of 2012, there were primary distributions in 30 cases, representing total settlement funds of over $1.9 billion. The average settlement fund size was approximately $63 million, with largest settlement exceeding $620 million. A total of six settlements were disbursed in October, ten settlements in November, and 14 settlements in December. The table below lists the five largest securities class action settlements that were distributed in the fourth quarter of 2012: Disbursement Company Ticker Settlement Date Fund COUNTRYWIDE FINANCIAL 12/26/2012 CORP CFC 624,000,000 IPO SECURITIES 11/30/2012 LITIGATION Multiple Tickers 586,000,000 MORGAN KEEGAN STATES 11/5/2012 FUND RHIIX 100,000,000 10/10/2012 DEL MONTE FOODS CO. DLM 89,400,000 11/13/2012 CREDIT SUISSE GROUP CS 70,000,000 About Battea - Class Action Services, LLC Battea -- Class Action Services, via its proprietary technology platform, The Claims Engine(R), automates class action settlement award recovery across all asset classes for more than 300 institutional investors, including hedge funds, asset management firms, sovereign and pension funds, endowments and family offices. The Company provides a full-service solution for the entire securities class action award recovery process -- calculating recognized loss for every claim through the confirmation, receipt and delivery of settlement payouts, all with unparalleled transparency around the settlement recovery process. CONTACT: Battea -- Class Action Services, LLC Jennifer Carberry Telephone: 203-987-4949 E-mail: jcarberry@battea.com * Consumer Goods Manufacturers Face Class Action Risks ------------------------------------------------------ Kristen E. Polovoy, writing for Corporate Counsel, reports that the defense costs associated with consumer product class action lawsuits, along with the financial pressure to settle if plaintiffs achieve class certification, are confronting consumer goods manufacturers nationwide. Don't overlook the following preparatory measures. The risks to consumer goods companies of being a target make the consumer fraud product labeling class action trend reminiscent of Titanic Captain Edward J. Smith's chilling words: "I cannot imagine any condition which would cause a ship to founder. I cannot conceive of any vital disaster happening to this vessel." Product labeling litigation can be the unexpected iceberg to any company. The defense costs associated with these lawsuits, along with the financial pressure to settle if plaintiffs achieve class certification (in order to avoid the risk of juries' damages awards), are forcefully hitting the wallets of consumer goods manufacturers nationwide. In-house counsel should prepare the lifeboats now to better position the organization should it become a defendant in one of these class actions by considering the following issues. Obtaining Insurance Coverage For Defense Costs And/Or Liability Judgments In Labeling Litigation In most consumer product companies' coverage action cases against their insurers, courts have denied coverage because: * "Advertising injury" coverage does not encompass the claims: "Advertising injury" insurance in general liability policies covers publication of material that disparages another's products or wrongful use of another's advertising ideas in one's own marketing. However, product labeling consumer fraud class actions allege: (i) that companies misrepresented their own product, not another's goods; or (ii) that defendants made false claims or misused terms in their own advertising to promote their own products, not that they misappropriated another's advertising or business ideas. There is generally no advertising injury coverage in these scenarios. Giovanni Cosmetics Inc. v. Arch Ins. Co., CV 09-5548 GAF (C.D. Cal. Feb. 5, 2010). But cases' specific facts are what ultimately control the issue. E.piphany Inc. v. St. Paul Fire & Marine Insurance Co., 590 F. Supp. 2d 1244 (N.D. Cal. 2008) (claims of "superiority" over competitors was within advertising injury coverage); Vector Products, Inc. v. Hartford Fire Ins. Co., 397 F.3d 1316 (11th Cir. 2005) (claims of superiority over the "leading brand" was within advertising injury coverage). * Media policies do not cover the claims: Media or professional services wrongful act coverage in media policies covers disparagement or misappropriation of competitors' ideas. However, product labeling class actions challenge the allegedly fraudulent, false, or misleading content of companies' own labels. Thus, these class action complaints do not fall within the scope of media policies. Courts have also found that professional services coverage is not intended to cover claims by competitors . Welch Foods Inc. v. National Union Fire Ins. Co., Civ. A. No. 09-12087- RWZ, 2010 WL 3928704 (D. Mass. Oct. 1, 2010). * D&O insurance does not cover the claims: Exclusions in D&O policies often preclude coverage for claims arising out of "unfair competition or deceptive trade practices." Consumer fraud class actions alleging fraudulent, misleading, or deceptive product labels fall squarely within the plain language of this exclusion. Again, there is usually no coverage under D&O policies. Of course, coverage in each case turns upon its specific facts as well as the language in the particular policy and the complaint. Company counsel should review the language of its existing policies and if there are gaps that would exclude coverage of defense and liability costs in the typical product labeling class action, reach out to insurers to explore availability of ways to bridge those gaps. In-house counsel must assume responsibility for educating corporate decision-makers on the potential exposure in these cases, regardless of existing insurance policies. Personal Liability For Individual Officers Institutional exposure from consumer fraud product labeling class actions is not the only problem. Individual officer and employee liability is also a risk. For example, regulatory violations of the New Jersey Consumer Fraud Act may result in individual liability for corporate employees, officers, and owners when the violation at issue implicates the personal behavior of individual actors. Allen v. V and A Brothers, Inc., 208 N.J. 114, 26 A.3d 430 (2011); Kort v. Van Aswegen, 2011 WL 5137833, at *3 (N.J. App. Div. Nov. 1, 2011) (a company president signed a contract omitting provisions required by statutory regulations). Other jurisdictions also permit individual liability in certain circumstances under those states' consumer protection statutes. See, e.g., Polonetsky v. Better Homes Depot, Inc., 97 N.Y.2d 46, 55, 760 N.E.2d 1274, 1278-79 (2011) (corporate president liability under New York's Consumer Protection Law); Jackson v. Harkey, 41 Wash. App. 471, 480, 704 P.2d 687, 692 (1985) (individual officer liability under Washington's Consumer Protection Act); State ex. Rel. McLeod v. VIP Enterprises, Inc., 286 S.C. 501, 506, 335 S.E.2d 243, 245 (S.C. Ct. App. 1985) ("controlling person" liability under South Carolina's Unfair Trade Practices Act). The risks of personal liability from consumer fraud product labeling class actions underscore the need for: * Intra-company training about product labeling lawsuits and the pertinent states' consumer fraud statutes. * Periodic review of policies, procedures, and form contracts to minimize potential individual (and corporate) liability. * Investigation of insurance products that could offer defense and indemnification coverage to individual officers and employees. Watch FTC/FDA Actions As A Signal For Civil Litigation Consumer fraud class action practitioners frequently file private product labeling class actions after the Food and Drug Administration or Federal Trade Commission issues public posts, such as agency warnings letters about a company's or industry's food or beverage marketing. In-house corporate compliance teams should regularly review these postings, such as those at fda.gov in order to forecast possible activity against their industry or their label's language, to educate corporate decision-makers, and to recommend adjustments to language in labels and ads, if necessary as a proactive, defensive measure. Even with utmost diligence, there is no guarantee of a satisfactory or fiscally friendly outcome. Even if you feel your company's product label is truthful, accurate, and not misleading, the possibility of a class action remains. That said, while your company or its competitors may not presently be under attack, upper management and company counsel should consider the issues detailed in both parts of this article. In the words of Boy Scouts founder Robert Baden-Powell, "A Scout is never taken by surprise; he knows exactly what to do when anything unexpected happens." Kristen E. Polovoy is of counsel to Montgomery, McCracken, Walker & Rhoads in Cherry Hill, New Jersey, and serves as chairperson of the Camden County Bar Association's Class Action Practice Committee. Her practice concentrates on class action defense. * Firm Launches Deepwater Horizon Oil Spill Claims Website ---------------------------------------------------------- Williams Kherkher Hart Boundas, LLP, with its principal office in Houston, Texas, on June 4 disclosed that they have launched http://www.MySpillClaim.com This website allows the public to determine whether they meet the "V-Shaped Revenue Test" set forth in the Class Action Settlement Agreement relating to the April 20, 2010, Gulf Oil Spill, as referenced in the Deepwater Horizon Economic Settement. Businesses and Charities who pass this test -- and who are also members of the Class Action -- are eligible to receive compensation from the Deepwater Horizon Court Supervised Claim Center. "We are very excited about MySpillClaim.com," stated Armistead "Armi" Easterby, who manages the Oil Spill Claims Team within Williams Kherkher. "Previously businesses, charities, and individuals had to pay an attorney or accounting firm to see if they pass the V-Shaped Revenue Test. Now they can get a real time result with no cost or obligation; we think the public has the right to find out if they qualify without having to first hire a lawyer or accountant." "You don't have to be right on the beach to qualify," explained Mr. Easterby. "In fact, most businesses and charities located anywhere in Louisiana, Mississippi, Alabama, and the Western counties of Florida are included in the Class Action Settlement, and should run their numbers through MySpillClaim.com to see whether they pass the test." In order to complete the V-Shaped Revenue Test a potential claimant need only enter their monthly gross revenue for the period between May 2007 and December 2011. Many Gulf State businesses and charities mistakenly believe that they have to be located directly on the Gulf of Mexico to qualify, or have to prove the Oil Spill directly damaged their business or charity. "Neither of these misperceptions are accurate," explained Mr. Easterby. "A typical claimant can run this calculation on MySpillClaim.com in less than 5 minutes" continued Mr. Easterby. "Virtually all businesses and charities maintain their monthly gross revenue, and getting this information is typically a matter of a few mouse clicks, or a call to their accountant or bookkeeper." While the Class Action Settlement Agreement does contain other tests to qualify for compensation, the "V-Shaped Revenue Test" used by MySpillClaim.com is the most common, and the only one that is based solely on gross revenues for the aforementioned time period. Per the terms of the Class Action Settlement Agreement eligible claimants must submit a claim on or before April 22, 2014. "If you don't file your claim before the deadline, you forfeit your right to compensation and the money that is owed to you will revert back to BP" stated Mr. Easterby. "We encourage all businesses and charities in the Gulf States to visit the site and take 5 minutes to see if they qualify," concluded Mr. Easterby. "So far only a small fraction of eligible businesses and charities have filed their Oil Spill Claims, and we encourage businesses and charities to educate themselves about whether they qualify for compensation." For additional information on the site, visit http://www.MySpillClaim.com For a full copy of the Class Action Settlement, visit http://www.laed.uscourts.gov/OilSpill/OilSpill.htmfor details on MDL 2179. * U.S. Supreme Court Grapples With Class Actions ------------------------------------------------ Law360 reports that since the passage of the Class Action Fairness Act in 2005, the federal courts have been grappling with cases that have sought to identify the scope and boundaries of class actions. The U.S. Supreme Court has issued a series of opinions in the last two years regarding class actions and currently has before it two cases that have been briefed and argued that address the availability of "class arbitrations." Asbestos Litigation ASBESTOS UPDATE: Specialty Products Wants $1BB Appeal In 3rd Cir. ----------------------------------------------------------------- Jamie Santo of BankruptcyLaw360 reported that Specialty Products Holding Corp. sought permission to go directly to the Third Circuit with its appeal of a Delaware bankruptcy court's decision pegging its asbestos-related liability at $1.1 billion, saying a quick resolution of the issue has implications for its case and others. According to the report, U.S. Bankruptcy Judge Judith K. Fitzgerald issued an opinion May 20 estimating Specialty Products' current and future liability for asbestos-related mesothelioma claims at $1.1 billion, a figure that eclipsed its various projections by hundreds of millions of dollars. About Specialty Products Cleveland, Ohio-based Specialty Products Holdings Corp., aka RPM, Inc., is a wholly owned subsidiary of RPM International Inc. The Company is the holding company parent of Bondex International, Inc., and the direct or indirect parent of certain additional domestic and foreign subsidiaries. The Company claims to be a leading manufacturer, distributor and seller of various specialty chemical product lines, including exterior insulating finishing systems, powder coatings, fluorescent colorants and pigments, cleaning and protection products, fuel additives, wood treatments and coatings and sealants, in both the industrial and consumer markets. The Company filed for Chapter 11 bankruptcy protection (Bankr. D. Del. Case No. 10-11780) on May 31, 2010. Gregory M. Gordon, Esq., Dan B. Prieto, Esq., and Robert J. Jud, Esq., at Jones Day, serve as bankruptcy counsel. Daniel J. DeFranceschi, Esq., and Zachary I. Shapiro, Esq., at Richards Layton & Finger, serve as co- counsel. Logan and Company is the Company's claims and notice agent. The Company estimated its assets and debts at $100 million to $500 million. The Company's affiliate, Bondex International, Inc., filed a separate Chapter 11 petition on May 31, 2010 (Case No. 10-11779), estimating its assets and debts at $100 million to $500 million. ASBESTOS UPDATE: Metex Mfg. Can Join in Home Insurance Proceeding ----------------------------------------------------------------- Judge Burton R. Lifland of the U.S. Bankruptcy Court for the Southern District of New York authorized Metex Mfg. Corporation to use estate assets to seek intervention and participate in a disputed claims proceeding for the purpose of protecting their interest in certain insurance policies issued by The Home Insurance Company that provide coverage for asbestos personal injury claims against Kentile Floors, Inc. Kentile has coverage under five umbrella insurance policies issued by The Home. Each of The Home Policies has a $5 million limit, excess of five now exhausted $1 million primary policies, bringing the total aggregate limits of The Home Policies to $25 million. The Home Policies provide coverage for Kentile asbestos personal injury claims. In 2003, The Home became, and remains, the subject of a liquidation proceeding in the Merrimack County Superior Court, State of New Hampshire. Roger A. Sevigny, the Commissioner of the Insurance for the State of New Hampshire, was appointed by the Superior Court as the liquidator for The Home. On June 10, 2004, Metex filed a timely proof of claim in The Home Liquidation Proceeding seeking insurance coverage for, inter alia, the asbestos personal injury claims that have been made against Kentile. The Debtor relates that there is a pending claims dispute in The Home Liquidation Proceeding, which could result to the impairment of the limits of The Home Policies and, therefore, result in a dollar for dollar reduction in the amount that will be paid by to the Debtor. About Metex Great Neck, New York-based Metex Mfg. Corporation, formerly known as Kentile Floors, Inc., started business in the late 1800's as a manufacturer of cork tile, and thereafter progressed to making composite tile for commercial and residential use. It filed for Chapter 11 bankruptcy protection (Bankr. S.D.N.Y. Case No. 12- 14554) on Nov. 9, 2012. The petition was signed by Anthony J. Miceli, president. The Debtor estimated its assets and debts at $100 million to $500 million. Judge Burton R. Lifland presides over the case. Affiliate Kentile Floors, Inc., filed a separate Chapter 11 petition (Bankr. S.D.N.Y. Case No. 92-46466) on Nov. 20, 1992. ASBESTOS UPDATE: No Asbestos Indemnification For Celotex Corp. -------------------------------------------------------------- Joshua Alston of BankruptcyLaw360 reported that the New Jersey Supreme Court ruled that a defunct insurance company could not be held responsible for a $5 million policy it had issued to a manufacturer of building products containing asbestos, saying the matter had already been decided in other venues. According to the report, New Jersey's high court ruled in favor of the now-bankrupt Integrity Insurance Co., which issued a $5 million excess insurance policy to the also-bankrupt Celotex Corp., which once manufactured building and roofing materials containing asbestos. Celotex's product spawned thousands of product liability claims, the report said. About Celotex Corp. The Celotex Corporation manufactured, marketed, and distributed building products. Carey Canada Inc. mined asbestos until it ceased operations in 1986. Celotex and Carey Canada sought chapter 11 protection (Bankr. M.D. Fla. Case No. 90-10016) on Oct. 12, 1990. At the time of the filing, Celotex and Carey Canada had been named as defendants in thousands of lawsuits filed by Asbestos Personal Injury Claimants, and in hundreds of lawsuits filed by Asbestos Property Damage Claimants. On Dec. 6, 1996, the Bankruptcy Court entered an Order Confirming the Modified Joint Plan of Reorganization for Celotex and Carey Canada. A principal feature of the confirmed Plan was the creation of the Asbestos Settlement Trust under 11 U.S.C. Sec. 524(g) "to address, liquidate, resolve, and disallow or allow and pay Asbestos Claims, which will operate in accordance with the Asbestos Claims Resolution Procedures." ASBESTOS UPDATE: Graham Corp. Continues to Defend Exposure Suits ---------------------------------------------------------------- Graham Corporation continues to defend itself against lawsuits alleging personal injury from exposure to asbestos, 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. The Company states: "We have been named as a defendant in certain lawsuits alleging personal injury from exposure to asbestos allegedly contained in our products. We are a co-defendant with numerous other defendants in these lawsuits and intend to vigorously defend ourselves against these claims. The claims are similar to previous asbestos lawsuits that named us as a defendant. Such previous lawsuits either were dismissed when it was shown that we had not supplied products to the plaintiffs' places of work or were settled by us for immaterial amounts." Graham Corporation (Graham) designs, manufactures and sells custom-built vacuum and heat transfer equipment to customers worldwide. The Company's products include steam jet ejector vacuum systems, surface condensers for steam turbines, vacuum pumps and compressors, various types of heat exchangers, including helical coil heat exchangers marketed under the Heliflow name, and plate and frame heat exchangers. The Company's products produce a vacuum, condense steam vapor or transfer heat, or perform a combination of these tasks. The Company's products are available in a range of metals and non-metallic corrosion resistant materials. The Company's two wholly owned subsidiaries include Graham Vacuum and Heat transfers Technology (Suzhou) Co., Ltd. ASBESTOS UPDATE: Toro Company Continues to Defend PI Suits ---------------------------------------------------------- The Toro Company continues to defend itself against claims involving asbestos, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended May 3, 2013. The company is party to litigation in the ordinary course of business. Litigation occasionally involves claims for punitive as well as compensatory damages arising out of use of the company's products. Although the company is self-insured to some extent, the company maintains insurance against certain product liability losses. The company is also subject to litigation and administrative and judicial proceedings with respect to claims involving asbestos and the discharge of hazardous substances into the environment. Some of these claims assert damages and liability for personal injury, remedial investigations or clean up and other costs and damages. The company is also typically involved in commercial disputes, employment disputes, and patent litigation cases in which it is asserting or defending against patent infringement claims. To prevent possible infringement of the company's patents by others, the company periodically reviews competitors' products. To avoid potential liability with respect to others' patents, the company regularly reviews certain patents issued by the United States Patent and Trademark Office ("USPTO") and foreign patent offices. Management believes these activities help minimize its risk of being a defendant in patent infringement litigation. The Toro Company (Toro) designs, manufactures, and markets professional turf maintenance equipment and services, turf irrigation systems, agricultural micro-irrigation systems, landscaping equipment and lighting, and residential yard and snow removal products. The Company operates in three business segments: Professional, Residential, and Distribution. Its products are advertised and sold at the retail level under the names of Toro, Exmark, Irritrol, Hayter, Pope, Lawn-Boy and Lawn Genie. On June 24, 2011, the Company completed the acquisition of certain assets of Lawn Solutions Commercial Products, Inc. On January 17, 2011, Toro completed the acquisition of certain assets of Unique Lighting Systems, Inc. In February 2012, the Company acquired certain utility and underground product assets of Astec Underground, Inc., a wholly owned subsidiary of Astec Industries, Inc. In April 2012, it acquired light construction and hardscape product assets of Stone Construction Equipment, Inc. ASBESTOS UPDATE: Met-Pro Corp. Paid $740,000 to Settle Claims ------------------------------------------------------------- Met-Pro Corporation has paid $740,000 in settlement for cases involving 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 April 30, 2013. Beginning in 2002, the Company began to be named in asbestos- related lawsuits filed against a large number of industrial companies including, in particular, those in the pump and fluid handling industries. In management's opinion, the complaints typically have been vague, general and speculative, alleging that the Company, along with the numerous other defendants, sold unidentified asbestos-containing products and engaged in other related actions which caused injuries (including death) and loss to the plaintiffs. Counsel has advised that more recent cases typically allege more serious claims of mesothelioma. The Company's insurers have hired attorneys who, together with the Company, are vigorously defending these cases. Many cases have been dismissed after the plaintiff fails to produce evidence of exposure to the Company's products. In those cases where evidence has been produced, the Company's experience has been that the exposure levels are low and the Company's position has been that its products were not a cause of death, injury or loss. The Company has been dismissed from or settled a large number of these cases. Cumulative settlement payments through April 30, 2013 for cases involving asbestos-related claims were $740,000, which together with all legal fees other than corporate counsel expenses, have been paid by the Company's insurers. The average cost per settled claim, excluding legal fees, was approximately $25,000. Based upon the most recent information available to the Company regarding those claims, there were a total of 164 cases pending against the Company as of April 30, 2013 (with Connecticut, New York, Pennsylvania and West Virginia having the largest number of cases), as compared with 157 cases that were pending as of January 31, 2013. During the current fiscal year commencing February 1, 2013 through April 30, 2013, 18 new cases were filed against the Company, and the Company was dismissed from 11 cases and settled zero cases. Most of the pending cases have not advanced beyond the early stages of discovery, although a number of cases are on schedules leading to, or are scheduled for trial. The Company believes that its insurance coverage is adequate for the cases currently pending against the Company and for the foreseeable future, assuming a continuation of the current volume, nature of cases and settlement amounts. However, the Company has no control over the number and nature of cases that are filed against it, nor as to the financial health of its insurers or their position as to coverage. The Company also presently believes that none of the pending cases will have a material adverse impact upon the Company's results of operations, liquidity or financial condition. Met-Pro Corporation (Met-Pro) manufactures and sells product recovery and pollution control equipment for purification of air and liquids, fluid handling equipment for corrosive, abrasive and high temperature liquids, and filtration and purification products. The Company markets and sells its products through its own personnel, distributors, representatives and agents. The Company's products are sold worldwide primarily in industrial markets. The Company operates in three segments: product recovery/pollution control technologies, fluid handling technologies and mefiag filtration technologies; with the other segment being filtration/purification technologies. ASBESTOS UPDATE: OP-TECH Paid $100,000 Settlement to Labor Dept. ---------------------------------------------------------------- OP-TECH Environmental Services, Inc., made a settlement for $100,000 with the New York State Department of Labor related to asbestos operations, according to the Company's Form 10-K for the fiscal year ended December 31, 2012. The Company said ts asbestos handling license is current and in compliance. OP-TECH Environmental Services, Inc. and Subsidiaries (the "Company"), a Delaware corporation headquartered in Syracuse, New York, provides comprehensive environmental and industrial services predominately in New York, New England, Pennsylvania, and New Jersey. The Company performs industrial cleaning of hazardous and non-hazardous materials and provides varying services relating to plant facility closure, including interior and exterior demolition and asbestos removal. In addition, the Company provides remediation services for sites contaminated by hazardous and non- hazardous materials and provides 24-hour emergency spill response services. The Company's revenues are derived from state agencies, industrial companies and municipalities facing complex environmental clean-up problems associated with hazardous and non- hazardous materials as required by various governmental agencies. The Company's services include assessing the regulatory, technical, and construction aspects of the environmental issue, and performing the necessary remediation activities. The Company seeks to provide its clients with remedial solutions which integrate the various aspects of a project and are well- documented, practical, cost effective, and acceptable to regulatory agencies and the public. ASBESTOS UPDATE: Navistar Int'l. Continues to Defend PI Suits ------------------------------------------------------------- Navistar International Corporation continues to defend itself against asbestos-related lawsuits, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended April 30, 2013. The Company states: "Along with other vehicle manufacturers, we have been subject to an increased number of asbestos-related claims in recent years. In general, these claims relate to illnesses alleged to have resulted from asbestos exposure from component parts found in older vehicles, although some cases relate to the alleged presence of asbestos in our facilities. In these claims, we are generally not the sole defendant, and the claims name as defendants numerous manufacturers and suppliers of a wide variety of products allegedly containing asbestos. We have strongly disputed these claims, and it has been our policy to defend against them vigorously. Historically, the actual damages paid out to claimants have not been material in any year to our financial condition, results of operations, or cash flows. It is possible that the number of these claims will continue to grow, and that the costs for resolving asbestos related claims could become significant in the future." Navistar International Corporation (NIC) is a holding company, whose principal operating subsidiaries are Navistar, Inc. and Navistar Financial Corporation (NFC). The Company is a manufacturer of International brand commercial and military trucks, IC Bus (IC) brand buses, MaxxForce brand diesel engines, Workhorse Custom Chassis (WCC) brand chassis for motor homes and step vans, and Monaco RV (Monaco) recreational vehicles (RV), as well as a provider of service parts for all makes of trucks and trailers. In addition, it is a private-label designer and manufacturer of diesel engines for the pickup truck, van and sport utility vehicle (SUV) markets. It also provides retail, wholesale, and lease financing of trucks and parts. NIC operates in four segments: Truck, Engine, Parts and Financial Services. In February 2013, Mahindra And Mahindra Ltd purchased the Navistar Group's stake in Mahindra Navistar Automotives Ltd (MNAL) and Mahindra Navistar Engines Pvt Ltd (MNEPL). ASBESTOS UPDATE: J. C. Penney Recorded $20MM Liability Estimate --------------------------------------------------------------- J. C. Penney Company, Inc., recorded an estimate of $20 million that covered potential liabilities primarily related to underground storage tanks, remediation of environmental conditions, and asbestos removal, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended May 4, 2013. The Company states: "As of May 4, 2013, we estimated our total potential environmental liabilities to range from $18 million to $25 million and recorded our best estimate of $20 million in other liabilities in the unaudited Consolidated Balance Sheet as of that date. This estimate covered potential liabilities primarily related to underground storage tanks, remediation of environmental conditions involving our former drugstore locations and asbestos removal in connection with approved plans to renovate or dispose of our facilities. We continue to assess required remediation and the adequacy of environmental reserves as new information becomes available and known conditions are further delineated. If we were to incur losses at the upper end of the estimated range, we do not believe that such losses would have a material adverse effect on our results of operations, financial position, liquidity or capital resources." J. C. Penney Company, Inc. (jcpenney), is a holding company. The Company is a retailer, operating 1,102 department stores in 49 states and Puerto Rico as of January 28, 2012. Its business consists of selling merchandise and services to consumers through its department stores and through its Internet Website at jcp.com. It sells family apparel and footwear, accessories, fine and fashion jewelry, beauty products through Sephora inside jcpenney and home furnishings. As of January 28, 2012, its supply chain network operated 27 facilities at 18 locations, of which nine were owned, with multiple types of distribution activities housed in certain owned locations. Its operating subsidiary is J. C. Penney Corporation, Inc. In November 2011, it completed acquired the worldwide rights for the Liz Claiborne family of trademarks and related intellectual property, as well as the United States and Puerto Rico rights for the Monet trademarks and related intellectual property. ASBESTOS UPDATE: Deadly Dust Dumped Near Sydney Childcare Centre ---------------------------------------------------------------- Ian Walker, writing for The Daily Telegraph, reported that asbestos was illegally dumped on two roads in western Sydney just metres from a childcare centre early morning on June 14. According to the report, sheets of the deadly material were found lying in the middle of the road on Wilson Avenue and Wilson Lane just off Canterbury Road in Belmore. The asbestos was dumped next to a sign on Wilson Avenue pointing to the nearby Canterbury Children's Cottage about 25 metres away, the report said. Asbestos removal contractors were called in by Canterbury Council to remove it by hand with removal by machinery deemed too dangerous, the report related. Firemen in white plastic hazardous material suits and half face masks carried out the initial containment of the material. Entrances to both roads were blocked by police cars and a fire truck while firemen hosed down the asbestos and then covered it with sheets of black plastic to prevent it from blowing into the air. The NSW Environmental Protection Authority stipulates asbestos waste be 'wetted and sealed in heavy-duty plastic prior to transportation to a lawful waste facility such as a licensed landfill.' Police are appealing for any witnesses to the dumping, or anyone with information about those responsible, to contact Campsie Police Station. ASBESTOS UPDATE: Toxic Fibro Scare on Harbour Bridge ---------------------------------------------------- The Australian Associated Press reported that up to 40 Sydney Harbour Bridge workers have walked off the job over concerns two apprentices were exposed to asbestos on the iconic structure, the construction union says. According to the report, the CFMEU said between 35 and 40 Roads and Maritime Services workers downed tools on the bridge in response to the incident. The two apprentice workers were exposed to asbestos when contractors were brought on to the bridge to do plumbing work, the union said, the report related. "These are two young apprentices on the start of their working life and they now have the spectre of asbestosis and mesothelioma above them," CFMEU organiser Bard Parker said in a statement. He said a "lack of care and proper planning by Roads Maritime Services management" was to blame for the incident. Mr Parker said uncovered asbestos had been "piled up" near the workers' lunchroom and toilets. He said workers on the site were "rightly upset" that they might have unwittingly carried asbestos fibres home in their clothes. There would be no further work on the bridge until a meeting with RMS, the union said. RMS released a statement confirming a "small amount" of asbestos was found during plumbing repair work on the bridge. The agency said samples of the potentially lethal substance were taken for testing. "Given the location, there was no risk to the safety of workers of the public," RMS said. It said a licensed contractor was removing the asbestos. ASBESTOS UPDATE: Concerns on Deadly Dust After Newcastle Explosion ------------------------------------------------------------------ Newcastle Herald reported that police are still determining what caused an explosion at a Tuncurry home on the Lakes Way on the morning of June 14, killing at least one person. "A deceased person was found amongst the debris but is yet to be identified," Manning Great Lakes Inspector Neil Stephens said at the scene, the report said. "Police Rescue specialists from Newcastle are en route to the scene and they will conduct the retrieval of the body. A dog was also located deceased. The neighbouring properties have been evacuated and there were no other injuries sustained in the explosion," the report cited Mr. Stephens as saying on the day of the incident. Emergency services were called to The Lakes Way at around 11am on June 14 after an explosion rocked Tuncurry. Fire and Rescue NSW extinguished the blaze and the body of the deceased was located in the ruins soon after. "Shortly before 11am we received numerous 000 calls regarding an explosion in Tuncurry," Inspector Stephens said. "Police arrived on the scene to find a house completely destroyed with just a pile of rubble remaining. There was debris all over the road up to 100 metres away from the explosion. Much of the debris is pieces of fibro and asbestos so the incident has been declared a HAZMAT incident." It is not yet known what caused the explosion. "The cause is yet to be determined but at this stage we're investigating the possibility of a gas related explosion," Inspector Stephens said. Inspector Stephens refuted any suggestions that drugs were involved. "There is nothing to indicate that drug activity was involved in the explosion." Specialised vacuum machinery was being brought from Newcastle to help clear the asbestos debris spread by the explosion and The Lakes Way remained closed as police carried out investigations at the site where the body was uncovered. Great Lakes Council's Andrew Blatch, speaking from the site, said two specialist asbestos operators had been brought in to deal with the debris, one local and one from Newcastle. Mr Blatch said most of the debris would have to be removed by hand. Traffic has been stopped in both directions, with school buses brought into local schools early to take students home via a longer detour. The house, which was destroyed in the explosion, will be fenced off and will have to be demolished, Mr Blatch said. The Environmental Protection Authority is also attending the scene due to the asbestos concerns. ASBESTOS UPDATE: Secondary Exposure Suit Filed by Worker's Ex-wife ------------------------------------------------------------------ Kyle Barnett, writing for The Louisiana Record, reported that a St. Tammany Parish woman is suing a number of companies her ex- husband where her ex-husband worked for the lung cancer she claims she contracted through exposure to asbestos he brought home from those jobs. According to the report, Julie Lavigne, individually and on behalf of her minor children, filed suit against Shell Oil Company, Shell Chemical, Shell Chemical Company, Kellogg Brown & Root Inc., Brown & Root Inc., Lenny's Plumbing Inc. and American Do All Corporation in the 24th Judicial District Court on April 18. Lavigne claims she shared a home with Michael Kenneth Lavigne from 1990 until 2008 and that during that time he worked for Kellog Brown & Root Inc., Shell Oil Company and Shell Chemical that included removing pipes and insulation, repairing old pipes that were insulated with asbestos and the handling and removal of the asbestos insulation itself, the report said. On Aug. 6, 2012 the plaintiff was diagnosed with mesothelioma, a type of lung cancer caused by asbestos exposure, the report related. The defendant is accused of failing to warn employees regarding the health hazards associated with asbestos exposure, failing to warn their employees against bringing asbestos-contaminated clothes home for laundering, failing to provide special work clothes which could be removed at the end of the work day, and not require home laundering, failing to provide showers at the workplace to enable employees to clean off asbestos dust and fibers before returning home, failing to advise employees that asbestos was an extremely dangerous substance, failing to implement adequate engineering controls to eliminate or substantially reduce their employee's exposure to asbestos, failing to use asbestos-free insulation and other building products and failing to totally isolate and work activity to prevent asbestos exposure. An unspecified amount in damages is sought for physical pain and suffering, mental pain and suffering, emotional distress, fear of dying, loss of enjoyment of life, medical expenses, disfigurement, embarrassment, physical impairment, loss of wage compensation, loss of fringe benefits, lost earning capacity, physical disability, mental disability, emotional and psychological anguish and distress, expert expenses, litigation costs, medical costs, loss of society, wrongful death and survival. The plaintiff is represented by L. Eric Williams of the Metairie- based Williams Law Office LLC and Richard J. Fernandez of the Metairie-based Law Offices of Richard J. Fernandez LLC. The case has been assigned to Division H Judge Glenn B. Ansardi. Case no. 726-087. ASBESTOS UPDATE: Fibro Found in 80% of Schools in Warrington ------------------------------------------------------------ Warrington Guardian reported that deadly asbestos is present in 80% of the schools in Warrington, research has revealed. According to the report, a total of 72 out of 90 primary and secondary schools in the area contain the potentially dangerous material. Information, collected via a Freedom of Information request to Warrington Borough Council, also discovered that more than 20,900 school children in the area could potentially be exposed to asbestos in their classrooms on a daily basis, the report said. Michael Lees, from campaign group Asbestos in Schools, said: "You are aware that asbestos exists, but you are certainly not aware of the dangers, and the fact that just the simple act of going to school, you can die of an industrial disease." Asbestos is a naturally occurring mineral used in buildings between 1950 and 2000, but only poses a threat to an individual's health once it's exposed and starts to crumble. The fear is that as the condition of these buildings continues to deteriorate so does the condition of the asbestos contained within them. A spokesman for Warrington Borough Council said: "The presence of asbestos in school buildings is not uncommon and Warrington is no different to many other areas across the UK. "However, we do take the issue of asbestos seriously and schools are required by health and safety legislation to manage safely the presence of asbestos within buildings and this is carried out in line with guidance provided by the HSE. " According to figures from the Health and Safety Executive, 128 school teachers died from the asbestos-related lung cancer mesothelioma between 2002 and 2010 in the UK but it is argued that this figure does not even come close to the reality of the situation. Asbestos in Schools has claimed that this figure underestimates the true scale of mesothelioma deaths among teachers because it does not include those aged 75 and over. Britain has the highest rates of mesothelioma in the world, with someone dying from the disease every five hours. Recent research by the Government's Committee on Carcinogenicity has revealed that a child of five is more than five times more likely to develop the incurable disease by the age of 80 than a teacher aged 30. A recent Freedom of Information request has revealed that the following schools contain asbestos. Community Primary Schools: Alderman Bolton Community Primary School, Appleton Thorn Community Primary School, Barrowhall Community Primary School, Beamont Community Primary School, Bewsey Lodge Primary School, Bradshaw Community Primary School, Brook Acre Community Primary School, Broomfields Junior Primary School, Bruche Community Primary School, Burtonwood Community Primary School, Callands Primary School, Cherry Tree Primary School, Croft Primary School, Culcheth Community Primary School, Dallam Community Primary School, Evelyn Street Primary School, Gorse Covert Primary School, Locking Stumps Community Primary School, Meadowside Community Primary School, Newchurch Community Primary School, Oakwood Avenue Community Primary School, Oughtrington Community Primary School, Park Road Community Primary School, Penketh Community Primary School, Penketh South Community Primary School, Ravenbank Community Primary School, Statham Community Primary School, The Cobbs Infant Primary school, Thelwall Community Infant Primary School, Thelwall Community Junior Primary School, Twiss Green Community Primary School, Westbrook Old Hall Primary School, Woolston Community Primary School Voluntary Aided Primary Schools: Birchwood CE Primary School, Christ Church CE Primary School, Cinnamon Brow CE Primary School, Glazebury CE Primary School, Grappenhall St. Wilfrid's CE Primary School, Hollins Green St. Helen's CE Primary School, Latchford CE St James CE Primary School, Our Lady's Catholic Primary School, Sacred Heart Catholic Primary School, Sankey Valley St. James' CE Primary School, St. Alban's Catholic Primary School, St. Andrew's CE Primary School, St. Augustine's Catholic Primary School, St. Benedict's Catholic Primary School, St. Bridget's Catholic Primary School, St. Joseph's Catholic Primary School, St. Lewis' Catholic Primary School, St. Margaret's CE Primary School, St. Monica's Catholic Primary School, St. Oswald's Catholic Primary School, St. Paul of the Cross Catholic Primary School, St. Peter's Catholic Primary School, St. Stephen's Catholic Primary School, St. Thomas' CE Primary School, St. Vincent's Catholic Primary School, Stretton St. Mathew's CE Primary School, Warrington St. Ann's CE Primary School, Warrington St. Barnabas CE Primary School, Winwick CE Primary School, Woolston CE Primary School Community High Schools: Bridgewater High School, Birchwood High School Voluntary Aided High Schools: Cardinal Newman High School, Sir Thomas Boteler CE High School, St. Gregory's Catholic high School Other establishments: Fox Wood School, Green Lane School, Grappenhall Hall School, New Horizons Centre The following schools were found not to contain asbestos: Culcheth High School, Grappenhall Heys Primary School, Great Sankey Primary School, St. Elphin's Primary School, St. Philip (Westbrook) Primary School, What is asbestos? A hazardous material regularly used in buildings from the 1950s until the late 1990s. Mainly used for fireproofing and insulation and, if disturbed, can cause fatal illnesses. It was mainly used in ceiling tiles, pipe insulation, boilers, sprayed coatings and garage roof tiles. Its usage was banned in 1999. As long as the asbestos is well maintained and not disturbed or disintegrating it does not present any immediate hazard to health. ASBESTOS UPDATE: Shipyard Workers Urged to Call Victims Center -------------------------------------------------------------- The Lung Cancer Asbestos Victims Center says, "We are trying to alert all diagnosed victims of mesothelioma, or any type of lung cancer to call us immediately if they were exposed to asbestos while working at a shipyard, especially if the shipyard was involved in US Navy ship overhauls, because substantial compensation can be available for these types of individuals. Aside from shipyard workers we also want to talk to individuals who worked in manufacturing facilities, or industrial facilities with the common denominator being exposure to asbestos, if they have been diagnosed with mesothelioma, or asbestos related lung cancer. In the 1950's, 1960's, 1970's, and for a good part of the 1980's these types of workplaces were loaded with asbestos." If a diagnosed victim of mesothelioma, or any type of lung cancer had long term exposure to asbestos in their workplace the Lung Cancer Asbestos Victims Center will direct the victim, or their family members to the nation's most skilled, and results driven mesothelioma lawyers, or asbestos exposure law firms that all have an established record of achieving superior results for their clients. For more information diagnosed victims of mesothelioma, lung cancer victims, or their family members are urged to call the Lung Cancer Asbestos Victims Center at 866-714-6466. The States With The most Shipyards: California Virginia Washington Maine Louisiana Alabama Special note from the Lung Cancer Asbestos Victims Center: "We need to emphasize when it comes to shipyard workers, US Navy Veterans, or any other diagnosed victim of mesothelioma, or asbestos exposure lung cancer, the individual could live in any state. Because the vast majority of these individuals are now retired they could now live in Florida, Arizona, Texas, West Virginia, Ohio, Pennsylvania, North Carolina, New York, New Jersey, Massachusetts, Maine, Vermont, Maryland, Virginia, Kentucky, Tennessee, Georgia, Louisiana, Missouri, Indiana, Illinois, Iowa, Michigan, Wisconsin, Minnesota, North Dakota, Kansas, South Dakota, Wyoming, Montana, Idaho, New Mexico, Utah, Oregon, Washington, Oregon, Alaska, or any other state." http://LungCancerAsbestosVictimsCenter.Com The Lung Cancer Asbestos Victims Center says, "Aside from shipyards, high risk workplaces for asbestos exposure include the US Navy, power plants, manufacturing factories, chemical plants, oil refineries, mines, smelters, aerospace manufacturing facilities, demolition construction work sites, railroad work sites, automotive manufacturing facilities, or auto brake shops. With mesothelioma, or lung cancer caused by asbestos exposure the cancer may not show up until decades after the exposure. As long as the diagnosed victim of mesothelioma, or lung cancer victim, or their family members can prove the exposure to asbestos, we will do everything possible to help them get what might be substantial financial compensation." For more information please call the Lung Cancer Asbestos Victims Center anytime at 866-714-6466. ASBESTOS UPDATE: Worcester Meso Victim Wins Compensation Battle --------------------------------------------------------------- Gary Smee, writing for Worcester Standard, reported that a pensioner who contracted an incurable cancer linked to asbestos during his time working at a Worcester factory has won his battle for compensation. According to the report, Fred Penn who worked for Worcester Engineering in the 1970s, before the company was acquired by the Bosch Group in 1992, spent several years working in an environment thick with asbestos dust without any protection. The 73-year-old spent time assembling wall-mounted boilers, a role which included handing sheets of asbestos on a regular basis, but last year he began to display symptoms of poor health and was diagnosed with mesothelioma -- an incurable cancer which affects the lining of the lungs, the report related. Mr Penn contacted industrial disease specialists Thompsons Solicitors who were successful in settling the case out of court for an undisclosed but "significant" sum, the report further related. Mr Penn said: "I worked for the firm for almost thirty years so when I was diagnosed with mesothelioma I knew that I'd been exposed to the stuff during my career there. "When I thought back over my work history I remembered spending five years working with the asbestos boards. I wasn't given any protective equipment and nobody warned me that years later it would affect my health the way it has. "I worked hard for many years to ensure financial security for my wife and family and to be diagnosed with cancer as a result of my job is a bitter blow. It was very important to me to claim compensation, not for me but for my wife. I had to make sure she would be cared for in the future." Dave Fisher from Thompsons Solicitors who represented Mr Penn added: "The legacy of asbestos in the Midlands has meant that too many people have been left suffering from asbestos-related diseases like mesothelioma. "We know how important it is for sufferers to claim compensation during their lifetime so they can make provisions for their family, and are pleased we've been able to achieve this outcome for Mr Penn." Carl Arntzen, managing director of Bosch Thermotechnology Ltd, said: "Mr Penn retired in 2004 after 29 years of service, but is still a well-respected and active member of our retirement club attending all ex-employee events. "We will continue to support Fred and his family as he was a much- liked and valued member of staff, working across a number of different departments." ASBESTOS UPDATE: Hampshire Killed by Toxic Dust & Cigarettes ------------------------------------------------------------ This Is Hampshire reported that a Hampshire man died as a result of asbestos exposure and cigarette smoking, an inquest heard. According to the report, Raymond Tizard, of Sandringham Road, Bittern Park, was employed by Brazier and Son for about 25 years. After carrying out demolition work in the city, the court heard that he would return home to his wife Valerie, the report said. "I could not wash his overalls because the dust was caked on. I have had to have an x-ray too," she told the hearing at Winchester on Wednesday (June 12). The inquest was also told that Mr Tizard had been a heavy smoker. He spent the last week of his life at Countess Mountbatten Hospital, West End, and died on March 19, aged 73. Grahame Short, coroner for central Hampshire, recorded a verdict of death due to industrial disease. He said: "It's clear that he was exposed to asbestos while he was working and in light of the pathologist's findings, I record a verdict of death due to industrial disease. He died due to non-small cell lung carcinoma due to exposure to asbestos and cigarette smoking." ASBESTOS UPDATE: State Probes Fibro Claims at Lahaina Surf ---------------------------------------------------------- Melissa Tanji, writing for The Maui News, reported that a state official with the Occupational Safety and Health Division was on Maui to investigate complaints from a once high-ranking Hale Mahaolu employee alleging that the organization has not taken appropriate steps to remove asbestos from a Lahaina low-income housing complex. According to the report, the employee, Kula resident Robyne Nishida Nakao, also alleges that she was demoted in retaliation for continuously pressing the safety issue with Hale Mahaolu Executive Director Roy Katsuda. Nishida Nakao filed complaints with the state Department of Labor and Industrial Relations' Hawaii Occupational Safety and Health Division over the inappropriate removal of asbestos from the ceilings and floor tiles at the Lahaina Surf Apartments, the report related. Her complaints include her charge that Katsuda demoted her from deputy executive director to development director in April. The demotion came after months of being "alienated," she said while on medical leave for stress and anxiety, the reort further related. Katsuda, the longtime head of the nonprofit, could not be reached for comment despite multiple calls and messages from The Maui News. But Katsuda told the Honolulu Star-Advertiser that there was no retaliation against Nishida Nakao, and that corrections to housing units were made properly. Hale Mahaolu manages 14 affordable housing properties for the elderly and families, or approximately 1,000 rental units in Maui County. It also has support service programs. It has an approximately $88 million annual operation budget, according to Nishida Nakao, who has worked at the agency for 20 years. Nishida Nakao's "notice of alleged safety or health hazards" complaint to the state Department of Labor and Industrial Relations' Hawaii Occupational Safety and Health Division maintains that employees were not trained in proper remediation and disposal of suspected asbestos. Nevertheless, they removed the material at the Lahaina site as well as at Hale Mahaolu Akahi and Elua in Kahului. She also alleges that the air is not being monitored as required during asbestos removal and employees do not have proper equipment. Nishida Nakao said that the asbestos abatement is immediately needed in two or three Lahaina Surf units. Around 88 percent of the 112 living units have asbestos, she said. Twenty-two units at Lahaina Surf are managed by the U.S. Department of Housing and Urban Development's housing assistance program for very low income families, seniors and those with disabilities. Bill Kunstman, spokesman for the state Department of Labor and Industrial Relations, said that the department has 90 days to act on the discrimination complaint and six months to act on the asbestos issue. After Nishida Nakao's story was made public, another employee, Rick Nowak, a maintenance supervisor for Hale Mahaolu, also went public in substantiating Nishida Nakao's complaints. He also is on medical leave, saying he has been "stressed and depressed" over the issue. Nishida Nakao, 39, has sought legal counsel and has retained Wailuku attorney James Fosbinder. Nowak said he will retain Fosbinder as well. Nowak, who oversees maintenance for four Hale Mahaolu properties, said that he was told by Katsuda to keep the issue of asbestos removal at the Lahaina Surf Apartments "hush, hush" and that Katsuda had preferred that the organization's employees -- who Nowak said have minimal training and are ill-equipped -- do some of the removal, citing cost issues that would prevent the organization from removing all the asbestos from the Lahaina Surf. Asbestos abatement per unit was estimated to cost nearly $14,000, Nishida Nakao said. She agreed with Nowak, saying that Katsuda told employees to keep quiet about asbestos at the Lahaina property. "They felt that having proper abatement would be a public nightmare," Nishida Nakao said. She added that Katsuda "wanted to do this as discretely as possible" so the matter would not be an attention-getter and cause panic. Nowak said that when he and Nishida Nakao got involved with the Lahaina Surf property in 2011 as part of Nishida Nakao's duties of remedying ongoing management issues, they discovered residents there had been complaining about building issues. Those involved the ceilings and floors containing asbestos, Nowak said. Nothing had been done despite complaints made over the years, he said. He added that there was an instance in which a tenant had to be moved out of her unit because "the ceiling (which contains asbestos) was falling in her food as she ate." He added that tile filled with asbestos from another unit was removed, but the tenant's furniture remained in the unit. Nishida Nakao said that after hearing a complaint from a worker about asbestos, she turned to Katsuda, who gave her a letter dated in 1981 noting that an asbestos assessment was done and that the Lahaina Surf was at acceptable levels. When she took the letter to show staff, she was told that the standards are now stricter. So she did research and contacted the state Department of Health. It confirmed the stricter rules. Noting that the Lahaina Surf was old, Nishida Nakao said she determined it would be better if all asbestos were removed at once. She said that, with an old building, many repairs are necessary that may involve workers dealing with asbestos issues. So it was better to clean the place up, she said. Nishida Nakao tried to get Katsuda to agree to estimates for asbestos testing but he denied it. She said that, often during the process, Katsuda said there was no money for the work. But Fosbinder said that the organization has money for these types of purposes and would not have had to seek outside funding or raise rents. Nishida Nakao said that Katsuda told her to proceed with the tests using Hale Mahaolu employees to collect the samples. According to a letter Fosbinder has sent to Hale Mahaolu's board of directors, Nishida Nakao coordinated asbestos training for Lahaina Surf staff members after they removed the samples but before the receipt of test results. The letter said that certified asbestos management instructor Mark Muranaka warned that it takes only one asbestos spore to be inhaled to develop adverse health problems, including the risk of cancer. The letter reported that Katsuda stated that for someone to be adversely affected by asbestos, someone would need long-term exposure to it or "eat it." Test results by Globeteck through its INALAB confirmed that there were asbestos fibers in excess of allowable levels, and that asbestos was present in 10 of 17 samples, the letter said. It was recommended that the asbestos material be removed by a certified asbestos abatement contractor with a special license. After some back and forth between Nishida Nakao and Katsuda on the best way to remedy the issue, unlicensed asbestos contractors began remedial work on one of the buildings in 2012, according to Nishida Nakao. When she asked about the removal of asbestos in other buildings that had tested positive, Katsuda demanded that she transition out of the Lahaina Surf and focus on development projects. Nishida Nakao, who at one point teared up while speaking with The Maui News at Fosbinder's office in Wailuku, said it wasn't easy coming forward. She said that Katsuda had been her mentor. "He taught me a lot of things. It's very emotional," she said, adding that she was motivated to come forward for the welfare of others. "For me, the health and safety of the staff and the community and the residents. That's the motive," she said. As a mother, she said, she looks at her son when she comes home from work and thinks about the health of the children at the Lahaina Surf and wonders if they will become sick from the asbestos. "I think it is easily preventable if you do it the right way," she said of the asbestos removal. Fosbinder said that Nishida Nakao has been a model employee and has worked hard through the years and has accumulated hundreds of hours in vacation and sick leave because she never leaves work. She was named among Women of Excellence in 2013 by the Committee on the Status of Women in Maui County, and she was a finalist this year in Pacific Business News' "2013 Women Who Mean Business/Nonprofit Businesswoman of the Year." She also was among Pacific Business News' awardees for its "2013 Forty under 40" awards to honor Hawaii's best and brightest young businesspeople. "Hale Mahaolu is my heart and soul. This is something very difficult. It's like a divorce," Nishida Nakao said. "I care about the company and the residents. . . . It's hard to be away from the family." ASBESTOS UPDATE: Retired Nurse Seeks Former Colleagues' Help ------------------------------------------------------------ Steve Ford, writing for Nursing Times, reported that a former nurse with an incurable asbestos-related disease is calling for anyone who worked with her to come forward with information about the hospitals she worked at in the 1960s and 1970. ASBESTOS UPDATE: Agent Censured on Asbestos Claims -------------------------------------------------- Jimmy Ellingham, writing for Manawatu Standard, reported that a Palmerston North real estate agent has been reprimanded, ordered to repay expenses and attend a training course, after misrepresenting the possible presence of asbestos in a property she was selling. According to the report, the Real Estate Agents Authority has found Rachel Wright guilty of unsatisfactory conduct over a sale completed in January last year. As well as reprimanding her, the authority ordered Ms Wright to pay $2900 to the buyer as "part relief" for their expenses, the report said. In the next year she must also finish a real estate national unit standard course to "demonstrate knowledge of misleading and deceiving conduct and misrepresentation," the report related. The identities of the buyer and seller have been withheld by the authority, as has the location of the property in question. At the time of the transaction, Ms Wright was working for Property Brokers, but she now works for Unique Realty, trading as the Professionals. According to the the authority judgment, Ms Wright misrepresented what the seller was saying about the presence of asbestos in the ceiling, telling the buyer the area had been checked, did not contain the material, and that there was a report saying this. Testing revealed there was asbestos in the ceiling and the results were sent to the buyer after the sale went unconditional. After discussions among the parties, the final property price was reduced by $25,000, which was what it cost to remove the asbestos, while the real estate agency's commission was reduced by $15,000. The buyer also complained to the authority. Later Ms Wright conceded she was told, when she initially viewed the property, asbestos could have been present. But she thought the seller had a report saying the material wasn't present, which the seller denied telling her. Either way, the authority says Ms Wright should have been more exact about the matter, as implying there was written proof would have given confidence to the buyer. "Some degree of culpability has been accepted by the [seller] . . . but significant responsibility lay with [Ms Wright] as a real estate professional to determine the validity of important and fundamental information being passed on to the [buyer]." ASBESTOS UPDATE: Wife Exposed to Asbestos Wins $27MM ---------------------------------------------------- Sylvia Hsieh, writing for Lawyers.com, reported that a worker's wife who developed mesothelioma from second-hand asbestos exposure won a $27 million jury award. According to the report, for several years in the 1950s, Martin Gregg worked as an insulation installer handling Kaylo brand insulation products. All those years, his wife, Rose-Marie, shook out and washed her husband's clothes. At 82, Rose-Marie now suffers from mesothelioma, a cancer of the lung's lining that is caused by asbestos exposure, the report related. The couple sued Owens-Illinois, the maker of Kaylo products. Their attorney, Joseph D. Satterley, argued that the company knew as early as 1930 that asbestos exposure could kill and that test results on Kaylo showed that the products' asbestos content could cause fatal illness. He also argued that the company advertised Kaylo products as "non- toxic" and its package did not say it contained asbestos or warn about health hazards associated with asbestos. "If we live in a society where product manufacturers are not held responsible for products once those products leave their possession, the world we live in is a dangerous place," Satterly told the jury. The jury agreed, finding that Owens-Illinois made a defective product and failed to warn Mrs. Gregg about risks of asbestos exposure. It awarded $12 million to Mrs. Gregg, $4 million to Mr. Gregg for loss of consortium and $342,000 in economic damages. The jury also added $11 million in punitive damages after finding that the manufacturer intentionally withheld information about the health hazards linked to Kaylo products and acted with malice, oppression or fraud toward Mrs. Gregg. ASBESTOS UPDATE: Mesothelioma Victim Gives Voice to Other Victims ----------------------------------------------------------------- Alex Druce, writing for The Border Mail, reported that Lou Williams is slowly choking to death. According to the report, tumours are growing like cauliflower in her lungs, and they will eventually solidify and crush her organs. After 10 years of chemotherapy and surgery, doctors have told Mrs Williams that she should focus on her quality of life, not quantity, the report said. The 58-year old, who divides her time between Greens Beach and central Victoria, has been to at least 60 funerals for people who have died from asbestos-related diseases. She can't explain why her own case of mesothelioma hasn't killed her yet. But she says she will raise awareness for asbestos and its dangers until her last breath. Mrs Williams's advocacy role with the Bernie Banton Foundation has taken her across the globe, her campaign giving a voice to thousands of victims and families. In March, she was a guest speaker at the international Asbestos Disease Awareness Organisation forum, travelling to the US, despite finding it difficult to walk up a set of stairs. Mrs Williams is also lobbying the federal government to remove asbestos from houses and public buildings. She said her goal was to see the removal, storage and transport of the hazardous material heavily subsidised for homeowners and renovators. "Medically, we are well aware of what asbestos can do, but the general public is still so blaise," she said. "Things like home renovations -- no one wants pay a big fee for someone to come and inspect and remove asbestos. "People say it's all hype and hysteria -- but the reality is, you only need minimal exposure to be affected." Mrs Williams said her first contact with asbestos was as a small child in the 1950s, when her father built her a cubbyhouse from leftover fibro sheeting. In the 1970s, she unknowingly worked at a Melbourne office that was riddled with the toxic material. For three years she breathed in invisible asbestos particles dislodged from the suspended ceilings and insulator cables. "Back then no one gave asbestos a second thought," she said. "We just didn't know. But already it has been too late for thousands and thousands of people, who were all exposed without being aware." High-profile court cases throughout the 1980s set a precedent for civil damages to be awarded to sufferers of asbestos-related diseases by their former employers. Mrs Williams's father succumbed to mesothelioma in 1985, aged 54, after years in the plastering trade. "He went down fast, and it was a very painful death," she said. Throughout the 1990s, Mrs Williams herself suffered unexplained fatigue and headaches, as well as unusual swelling in the abdominal area. But it wasn't until 2003 when advanced scans revealed tumours in her stomach and diaphragm. "Even then, mesothelioma was relatively unknown -- my doctor could not even pronounce it," she said. Mrs Williams was told she had two to three months to live if her treatment was not successful. A marathon 18 sessions of chemotherapy put the disease temporarily at bay, but in 2009, it returned to her right lung. She endured three more surgeries and 12 more sessions of chemotherapy. In September last year she learned that her left lung and diaphragm were affected. "I've been told there is nothing more that can be done -- no doctor will touch me," she said. "I'm not sure how much time I've got left." Mrs Williams will travel to Melbourne to explore a radical radiotherapy option -- one that would be painful and cause irreparable damage to her organs, the report said. But she said she was determined to keep fighting. "There are so many people who have not been as lucky as I am. "There is still a lot to do. I want to be a voice for people." ASBESTOS UPDATE: Fibro Removal Bids in for Armory ------------------------------------------------- Tesa Glass, writing for Mt. Vernon Register News, reported that the city council will hear bids on asbestos removal at the former Armory during its meeting. According to the report, six companies provided bids for the removal of the asbestos, with General Waste Services, Inc., the lowest bidder, coming in at $159,120. "We have received a 50-50 grant for the abatement, up to $144,000 from the state," City Manager Ron Neibert said, the report related. "With a bid of $159,000, we will not be using all the grant money. Our cost should be about $80,000." The report added that plans are underway to determine the best use for the facility, which was deeded to the city by the state. Some ideas for the facility has been to turn it into a Broadway Market or a venue for events. "Asbestos abatement is the first step to do anything with the building, regardless of the course the city takes with the building," Neibert said. "The asbestos needs to be removed." At this time, the gym floor in the building is being bid, with bids being opened on June 26. Neibert said there is no asbestos near the gym flooring and concrete was beneath the floor. "There is asbestos with the piping, insulation, tiles and tiling," Neibert said. "It is also in the caulk on the windows, so the glass will be removed and the windows sealed for now." Neibert said the city is working on a program to allow local artists to paint the sealed windows, "so we can make it more attractive as we decide on how to move forward with the building. ASBESTOS UPDATE: Thieves Broke Asbestos Panels in Garage -------------------------------------------------------- Richard Watt, writing for The Courier, reported that thieves who stole a double garage from a 150-year-old former country house stumbled through a layer of deadly asbestos, it has emerged. According to the report, Orchardbank House, tucked away on an industrial estate in Forfar, was the scene of the disappearance of the 60-section garage over a two-week period. Council officials have been called to examine the remnants after it emerged the thieves broke large asbestos panels while dismantling the building, the report said. The derelict house, built in 1864, is the property of Angus Council and workers discovered the theft on June 13. A council spokeswoman said: "We have made an assessment of the asbestos, which was scattered across the land and appointed the appropriate contractor to remove it." The European Union banned all use of asbestos as well as the extraction, manufacture and processing of asbestos products. The first diagnosis of asbestosis was made in the UK in 1924. Britain regulated ventilation and made asbestosis an excusable work-related disease by the 1930s. The term mesothelioma was first used in medical literature in 1931 and its association with asbestos was first noted a decade later. Police confirmed the prefab was the subject of an investigation. "Between 9am on Tuesday May 28 and 11.35am on Thursday June 13, a prefabricated double garage was dismantled and stolen," a spokeswoman said. "A pair of 6ft ornate metal gates and four concrete paving slabs were also taken. It's likely that whoever is responsible carried out the dismantling over a period of days. "Officers are keen to speak to anyone who may have seen or heard anything suspicious in the area." ASBESTOS UPDATE: Baron and Budd Calls Attention to Fibro Exposure ----------------------------------------------------------------- The mesothelioma attorneys at Baron and Budd are advocating for awareness of potential asbestos in construction materials after an onslaught of tornadoes in Oklahoma. Cleanup has begun in Moore, Oklahoma, after a mile-wide EF-5 tornado struck the small town on May 20, killing 24. This was followed by another tornado on May 31, causing ten more deaths in a similar region. "There can't be progress in rebuilding until miles of debris are cleared and properly disposed of," the lawyers say. "This means possible contact with asbestos. We recommend taking protective measures If contact is unavoidable, but it is best to get professional help." Tornadoes ripped open undisturbed infrastructures, whipping the contents in high winds and potentially releasing carcinogenic asbestos fibers into the air where they could be inhaled or ingested. People who inhale or ingest asbestos fibers are at risk for a cancer called mesothelioma. (The American Cancer Institute, "Asbestos Exposure and Cancer Risk," 2013: http://www.cancer.gov/cancertopics/factsheet/Risk/asbestos). While a survivor's knee jerk reaction after a natural disaster is to start digging through rubble in search of belongings, people need to be aware of dangers like asbestos that might be hidden in debris. The Environmental Protection Agency (EPA) emphasizes that people should be careful when cleaning debris and that asbestos- containing materials should not be disturbed. These materials could include insulation, fireproofing, floor tiles, and roofing (The Environmental Protection Agency: http://www.epa.gov/naturalevents/returnhomeadvisory.htm). About Baron and Budd National mesothelioma law firm Baron and Budd, with offices in Texas, California and Louisiana, is recognized on National Law Journal's list of 2012 "100 Top Verdicts." A platinum-level sponsor of the Asbestos Disease Awareness Organization, the firm supports ADAO in urging greater public awareness of the health risks associated with asbestos exposure. Call 866.855.1229 (day or night) or please visit: http://baronandbudd.com/areas-of- practice/mesothelioma-attorney/. ASBESTOS UPDATE: Tow Law Fire Destroys Fibro-Containing Building ---------------------------------------------------------------- ITV.com reported that a building in Tow Law, County Durham, has been destroyed by a fire. Smoke was visible for miles when crews arrived from Crook, Consett and Durham. According to the report, the commercial building had an asbestos tiled roof which is potentially harmful and difficult to move. The fire, which is not being treated as suspicious, happened just before 5pm on 14th June, the report said. Nobody was injured. ASBESTOS UPDATE: For One Victim, Justice is a Moving Target ----------------------------------------------------------- Dionne Searcey, writing for The Wall Street Journal, reported that when Bill McQueen sought medical treatment for a dull chest pain he couldn't seem to shake, he hoped it was just an old rib fracture flaring. The actual diagnosis was devastating: mesothelioma, an incurable and fatal cancer that was encasing his left lung. According to the report, that day, on Feb. 28, 2011, set in motion a two-year whirlwind including a major surgery halfway across the country to strip the tumor from the lining of his lung; numerous chemotherapy sessions; constant, crushing chest pain; and a legal battle that could end up being worth millions of dollars for his wife and two daughters. The McQueen family has sued the companies they think are responsible for the dangerous asbestos fibers that Dr. McQueen, an ear, nose and throat surgeon, inhaled at some point in his 64 years, the report said. Dr. McQueen represents a new breed of plaintiff in the asbestos litigation complex, now four decades old but still a thriving, multibillion-dollar enterprise. Unlike the steelworkers and shipbuilders who worked with vast quantities of asbestos decades ago -- and could easily single out likely corporate culprits -- the latest round of mesothelioma sufferers tend to be more idiosyncratic. A study by economic consultant Bates White of asbestos filings in a Philadelphia court found that 49% of mesothelioma claims between 2006 and 2010 were filed by plaintiffs citing exposures from do- it-yourself construction projects or shade-tree mechanic work in addition to industrial exposures. Those types of plaintiffs made up just 3% of mesothelioma claims between 1991 and 2000. A tinkerer who as a youth worked alongside his father, Dr. McQueen figured he likely inhaled deadly asbestos fibers decades ago while laboring in a greenhouse and during home-improvement projects. The disease can take many years to show up after exposure. The New York law firm he hired to fight his case, Weitz & Luxenberg PC, is among the most prolific filers of asbestos- related lawsuits in the nation, and a well-known presence in television advertising. It sought early on to hold 29 companies -- including paint makers, flooring manufacturers and boiler companies -- responsible for Dr. McQueen's disease. Since May 2011, Dr. McQueen's lawsuit has been working its way through the court system as his wife, Karen McQueen, and two daughters tended to his ailing health from an illness that they knew from the start was a death sentence. In the throes of shuttling her husband to doctor's appointments, running the household and juggling calls from plaintiffs' attorneys and well-wishers, an exhausted Ms. McQueen last year summed up her family's lot: "We're just in the machine." In 2011, roughly 2,250 mesothelioma lawsuits were filed in U.S. courts, a nearly 20% increase from five years prior, according to Navigant Consulting Inc., NCI +1.13% a Chicago-based consulting firm that analyzes asbestos litigation for corporate clients. The pace shows no sign of slowing down, according to other experts who track the suits, even though new mesothelioma diagnoses are actually on the wane. There is big money to be made for law firms. Weitz & Luxenberg, with about 90 attorneys and 400 other employees, handles as many as 500 mesothelioma cases a year from its offices in New York, New Jersey, Delaware and California, according to co-founder Perry Weitz. The value of each case varies widely, he said, but on average is worth between $1 million and $10 million. Law firms typically charge a fee of between one-third and 40% of the payout. Mr. Weitz, who owns a 9-1/2-bathroom mansion on 500 acres in Snowmass, Colo., said his firm sometimes sues 50 to 100 companies in a single asbestos lawsuit and settles 98% of the cases before they go to trial. Mr. Weitz got into asbestos litigation in the 1980s after he worked for unions to successfully lobby state legislators to expand laws to allow more asbestos-related suits. His union ties provided a steady client base as he began representing construction, powerhouse and shipyard workers with asbestos claims. More than two decades ago, he secured a bombshell $75 million award for three dozen clients claiming they were sickened by working in asbestos-lined boiler rooms on ships at the Brooklyn Navy Yard. Spooked by the outcome, defendants settled another 5,000 cases, Mr. Weitz said. Such abundant client reserves have all but dried up. The U.S. shipbuilding industry is on the decline, and those who would have worked with asbestos before the dangers were well known are elderly and dying. Clients in other lines of work where asbestos was used frequently in the mid-1900s, such as Navy seamen or steelworkers, will soon be scarce. Rarely do attorneys come across what they call "trifecta" clients -- a mesothelioma patient who worked on asbestos-lined boilers in the Navy, then went on to work jobs in the shipyards and in steel mills -- and their potential for racking up defendants and big verdicts or settlement dollars. The new types of cases are tougher to prove. Mr. Weitz said his firm has 10 full-time investigators dedicated to figuring out how clients were exposed to asbestos. "They tear apart houses and test products," he said. "That's why this litigation is more difficult today than in the old days. If you had a Brooklyn Navy Yard case or a powerhouse case, it was all laid out for you," Mr. Weitz said. "Today, you have to do a lot more homework." Dr. McQueen, a former Air Force surgeon who collected Native American arrowheads and once hunted Kodiak bear in Alaska, was already deep in the grip of the disease when his wife started scouting for a suitable lawyer. In April 2011, he traveled to Philadelphia, where he underwent an operation to strip the half- pound tumor from around his left lung. After several hours in surgery, Dr. McQueen suffered complications and was in intensive care when his wife decided she needed to act. She emailed Weitz & Luxenberg. Dr. McQueen woke up from a medically induced coma to find a lawyer and a notary public alongside his hospital bed. "I could barely write my signature, I was so weak," Dr. McQueen recalled. Daniel Wasserberg, a 35-year-old native Texan who at the time had been at the firm barely six months, started to build his case. Sitting at the McQueen's dining room table in their hillside home in north San Antonio, he prodded Dr. McQueen to conjure old memories of how he could have come into contact with asbestos. The McQueens pulled out photos from a trip they took to an old Ohio family farm. The photos showed rusty paint cans and bags of cement and insulation that Dr. McQueen had worked with years ago. Mr. Wasserberg researched the items and found that many of the companies that made the products long ago had filed for bankruptcy after being sued so many times by asbestos victims. He would be able to tap the bankruptcy trusts they had set up to pay claims, but they would be worth a fraction of their potential value in a courtroom setting. Pinpointing solvent defendants that could offer big settlements was crucial. He kept prodding Dr. McQueen, who mentioned that as youths he and his brother, who himself died of mesothelioma in 1999, worked in a greenhouse and were in charge of cleaning the flue of the facility's boiler. The brand name of the boiler, "Kewanee," stuck in his head. Mr. Wasserberg's research found that parts of Kewanee boilers allegedly contained asbestos. He decided to sue the boiler manufacturer's parent company, Illinois-based Oakfabco Inc. After a series of conversations with Dr. McQueen about his recollections from years ago, the list of potential defendants mounted. They included CertainTeed Corp., a company that he said made siding his father used on the Ohio farmhouse that Dr. McQueen scraped and painted over after it flaked. In May 2011, armed with a list of more than two dozen defendants, the Weitz firm filed Dr. McQueen's case in Delaware Superior Court, a popular venue for plaintiffs' attorneys suing myriad defendants because many corporations are based there. For Dr. McQueen, it was a race against time. He knew his cancer was bound to return and that defendants would be more motivated to settle their case if he was alive to tell a jury in person about his suffering. Over doughnuts last spring at a Krispy Kreme near his home, Dr. McQueen wept quietly when he contemplated his fate. Would he be too sick to visit his brother's grave in Vermont one last time? Would he see his youngest daughter graduate from college? From high school? "I can't plan anything," he said. The lawsuit progressed and Dr. McQueen braced himself for a lengthy deposition, which Mr. Wasserberg called "the centerpiece of the whole case." The more details Dr. McQueen could recall about numerous asbestos products he may have used or worked around, the more likely it would be that defendants would offer big settlements. He knew lawyers for the defendants would be skeptical because, like most asbestos plaintiffs, his brushes with the deadly fibers occurred decades ago. Weitz & Luxenberg last year issued a news release to let asbestos victims know that "it isn't necessary to be able to recall the full details" of their exposure to file suit. "Our position as asbestos lawyers is that if a mesothelioma or asbestos lung-cancer victim can recall at least a few details of the exposure, we may be able to fill in the gaps with appropriate research," the firm said in the release. In July 2011, for a day and a half at an airport Embassy Suites hotel conference room in San Antonio, Dr. McQueen sat before a dozen defense attorneys and at least a dozen more listening in on the phone who, one by one, grilled him on his alleged encounters with asbestos during his military career and at his family's farm. Jon Winter, an attorney representing Oakfabco, questioned Dr. McQueen about his memory of the Kewanee boiler. What was the address of the greenhouse that housed the boiler? How large was the greenhouse? How large was the boiler room? How tall was the boiler? What shape was it? Was it metal or cast iron? "It looks just like -- if you see an old fashioned steam engine, it's just like that," said Dr. McQueen, according to a transcript of the deposition. What was the model number? Mr. Winter asked. "I just remember seeing Kewanee -- my brother and I were always interested in Indian stuff, so we'd had all these crazy Indian names we'd do, and that was one I remember," said Dr. McQueen, pointing out that the word was stamped on the boiler in raised lettering. Dr. McQueen's memory of the boiler was meticulous. He recalled the positioning of the flues, the water tanks, details about the outside skin of the boiler, among other things. He said he would stick a long bristle brush inside the flue to clean it, knocking against and loosening insulation and breathing in the dust. "You always got a lot of dust, you know, around -- just around the back end of the boiler there, and we'd wipe that off or dust it off," Dr. McQueen said, according to the deposition. Questions from another defense attorney, William Jones, were more successful for his clients. Dr. McQueen had remembered working around an asbestos-paneled fire door that he could see had "little fibers sticking up on it," he said, when he was living at a U.S. Air Force base in England. One of Mr. Jones's defendant clients manufactured fire doors years ago. But Dr. McQueen struggled to pinpoint the door as one made by any companies he had sued. He couldn't recall specific details about the door or seeing any labeling that would indicate it was made with asbestos or who manufactured it. "What's the reason that you believe that that panel contained asbestos?" Mr. Jones asked. "I don't know," said Dr. McQueen. "The Brits do crazy things." Mr. Jones shot back, "Well, do you have any reason to believe besides that?" "I don't know. I have no idea," Dr. McQueen answered. Sometimes in naming companies as defendants, Mr. Wasserberg said in an interview, "We kind of speculate." "You plow forward as quickly as you can work to get the information, and you don't always know the answers at the beginning of the case," he added. "It's a discovery process. What we're trying to do is figure it all out." In the months following the deposition, the case was dismissed against several defendants. One was A.O. Smith Corp., AOS +1.27% which Dr. McQueen had identified as the maker of an asbestos-lined water heater in the basement of his family farm. After an inspection of the farm, Mr. Wasserberg told lawyers for the company he would stop pursuing it. At least one of the attorneys representing defendants in the case privately conceded a fear of having Dr. McQueen testify before a jury. Not only was he smart and personable but he also had a lot to lose should he succumb to the disease: a young wife, two daughters, Kalli and Mariana, who live at home, as well as a thriving medical practice. All of that would be considered when factoring compensation. At the McQueen house in San Antonio, settlement checks from defendants and from asbestos bankruptcy trust funds slowly started to arrive. The first was just over $26,000 from the trust set up by insulation-maker Johns Manville, then a handful of others, one for $6,000 and one for $2,000. And more recently, the McQueens received word that CertainTeed, the siding maker, wanted to settle its case. A spokesman for the company said it disputes that the siding on the McQueen house contained asbestos but that it included this lawsuit in a group of cases it decided to settle all at once. Dr. McQueen's suit is still playing out, with a trial scheduled for November. The fate of a handful of defendants, including boiler-manufacturer Oakfabco, is unresolved. A person affiliated with the company declined to comment. But Dr. McQueen's battle against cancer is over. Several months ago he noticed small sunflower seed-like bumps near his surgery scar. It was cancer. Scans showed the tumor growing again in his lung as well as spreading to a lymph node. He applied to several clinical trials but was too sick to qualify. By February, the McQueen household was transformed into a medical setting with a hospital bed and several oxygen concentrator tanks scattered across the living room. At one point, Dr. McQueen had tubes from four of the machines in his mouth. "He physically couldn't get enough oxygen," Ms. McQueen said. On the evening of March 23, Ms. McQueen went to sleep on the couple's king-size bed pushed alongside her husband's hospital bed and awakened to find he wasn't breathing. "I grabbed his face and put it between my hands and said, 'Honey, honey, honey!' I was screaming bloody murder, 'Oh my God, he's gone. He's gone.'" ASBESTOS UPDATE: Cwmcarn High School Removal Action "Frustration" ----------------------------------------------------------------- BBC News reported that council bosses say they are frustrated no agreement has been reached about how to remove asbestos from a south Wales, which may delay the return of pupils. According to the report, Caerphilly County Borough Council blames "lack of progress" by decision makers at Cwmcarn High while governors claim the council has introduced "onerous terms and conditions". Pupils are being taught 12 miles (19km) away in Ebbw Vale. Both sides are due to meet to discuss the issue. Councillor Rhianon Passmore, the council's cabinet member for education, said pupils, parents and staff were "concerned about the delay". "The education and wellbeing of the children is paramount but unfortunately we are still awaiting a decision. 'Decisive action' "Time is running out if pupils are to return 'home' to Cwmcarn for the start of the new term in September," she said. Meanwhile, the school governing body said it was "extremely frustrated," having twice been close to signing an agreement with the council before hurdles had been put in the way. A statement on the school website said: "The school's contractors have been given approval to start work and the school's contractors have confirmed that the school can be ready for the start of the school year, but the council are objecting to them starting work." In April, Caerphilly councillors agreed to spend around �1m on the asbestos removal work and temporary classrooms so the school's 900 pupils could return by September. Council acting chief executive Nigel Barnett and the school's governing body have already met twice over the issue. "I would urge the school leadership to take decisive action before we miss our window of opportunity to get the work done in time," said Mr Barnett. Cwmcarn High School closed after a council-commissioned report found that asbestos posed a potential health risk. But in February this year a Health and Safety Executive report said the site was essentially free of asbestos contamination. Another report in March found there was little difference between the two documents, apart from the conclusions. ASBESTOS UPDATE: Outrage Over Denial of Compensation to Veterans ---------------------------------------------------------------- Mirror News reported that ministers face urgent calls to end the "outrage" of 200 military veterans being denied compensation despite developing a deadly asbestos disease after serving their country. According to the report, many servicemen were exposed to asbestos while working on shipbuilding sites for the Royal Navy but current rules mean sailors, soldiers and airmen who develop the fatal condition mesothelioma cannot get payouts from the MoD if they were exposed to asbestos before 1987. Mesothelioma leads to a slow and agonising death and can take 40 years to show symptoms, the report noted. The arbitrary deadline does not apply to MoD civilians -- only servicemen, the report related. A new Government Bill going through the House of Lords will award 3,500 civilian sufferers more than GBP350million even if they cannot trace a liable employer. But it fails to help pre-1987 veterans and their families. Labour MP Thomas Docherty said: "It's an outrage that MoD bureaucracy is falling to close this unacceptable loophole. These men and their families are not being given the support from their country that they deserve." And Shadow Defence Minister Jim Murphy said last night: "Those who give so much for our country should always be looked after." There is speculation that the Government will back a Tory peer's amendment to the Bill "to allow a once-and-for-all opportunity for justice". ASBESTOS UPDATE: Toxic Dust Cleaned Up in Bendigo Street -------------------------------------------------------- Bendigo Advertiser reported that Garsed street was been re-opened after asbestos was found in the street. According to the report, the southern block of Garsed Street, including the unnamed laneway parallel with Myrtle Street, has been cleaned up and re-opened. The City of Greater Bendigo will work with the owner of the Gillies/Crystal Ice site to help them understand their responsibilities to secure the site, the report related. Planning and Development Director Prue Mansfield thanked neighbouring property owners who remained indoors until the situation was resolved. She also thanked all agencies and the accredited asbestos contractors for their quick response. ASBESTOS UPDATE: More Australian Jails Pose Risk ------------------------------------------------ Beatrice Thomas, writing for The West Australian, reported that all but four of WA's 16 prisons have been identified as having some form of asbestos contamination, with two facilities rated as high-risk, it has emerged. According to the report, after revelations last month that fixing asbestos contamination at Hakea Prison would cost taxpayers $2.5 million, the Department of Corrective Services has confirmed a further 11 prisons have asbestos-containing materials or suspected contamination "to some degree". Pardelup Prison Farm, near Mt Barker, and Roebourne Prison have a high-risk rating, the report said. The other jails with asbestos -- Bandyup, Bunbury, Wooroloo, Karnet, Albany, Broome, Eastern Goldfields, Greenough and Walpole Work Camp -- are medium to low-risk. The department said remediation work at the two high-risk jails was scheduled to be done by the end of this month. The work included the removal of asbestos rather than sealing and capsulation. It said an asbestos exposure register set up in 2009 had 20 reports "from people who had potentially been exposed to asbestos". When details emerged last month of the asbestos exposure at Hakea, including the discovery of friable asbestos in the ceiling spaces of the blocks inspected, the Asbestos Diseases Society called for the affected blocks to be closed immediately. Shadow corrective services minister Paul Papalia said a comprehensive register was needed to deal with the "threat of asbestos in the older buildings". "Not just of people who have gone into roof spaces but, in conjunction with experts in the field, a register that is comprehensive in the event a prison officer, a prisoner or staff member is exposed and later in life succumbs to the illness," he said. Mr Papalia called for health checks for prison officers and prisoners exposed or potentially exposed to asbestos. However, the department said this was not recommended in the current code of practice. Corrective Services Minister Joe Francis said that work was done under strict guidelines and precautions taken to ensure the safety of staff and prisoners. "I'm committed to ensuring that works are carried out in accordance with WorkSafe's directions," he said. ASBESTOS UPDATE: Most Philippine Schools Still Use Fibro in Labs ---------------------------------------------------------------- Dennis Carcamo, writing for The Philippine Star, reported that most public and private schools still use asbestos, a toxic substance, in their laboratories despite the pledge of the Department of Education in November 2011 that asbestos would be removed from campuses, a labor group said. According to the report, Allan Tanjusay, advocacy officer of the Associated Labor Unions-Trade Union Congress of the Philippines, said their team visitsed four public and four private schools in Metro Manila last June 3 and June 10 and discovered that these schools still employ asbestos in Chemistry and Biology classes. "The ban campaign urges the DepEd, Commission on Higher Education and private school officials to ensure that the directive and the memorandum they issued in removing these wire gauzes from campuses are enforced to the letter. "We should not sacrifice the health of our future citizens and that of our teachers and non-teaching school personnel," Tanjusay said. The ALU-TUCP partners with the Building and Wood Workers International in pushing for the ban of asbestos in the country, the report related. Tanjusay said that asbestos wire gauzes function as heat insulator and regulator of beakers from direct heat. "Kapag tumigas na 'yan after heating experiment tapos hinawakan at ipagpag, and dust nito ay malanghap ng mga estudyante at titser," Tanjusay said, noting that an asbestos fiber is 5,000 times smaller than a strand of hair. He also cited that the World Health Organization and International Agency for Research on Cancer have both affirmed that exposure to asbestos causes diseases and cancers in the lungs, larynx, and the ovaries. The WHO also said that all types of asbestos cause lung cancer, mesotheliama (deterioration of lining of internal organs), cancer of the larynx and ovary, and asbestosis (fibrosis of the lungs). At the time, there is no law to ban, but only to regulate, the use of asbestos in the country, Tanjusay said. ASBESTOS UPDATE: Deadly Fibro an NBN Issue, Says Liberals --------------------------------------------------------- Annabel Hepworth, writing for The Australian, reported that embattled NBN Co faces potential legal liability for asbestos issues in the National Broadband Network rollout under federal workplace health and safety law, the Coalition warns as it launches a fresh assault on the "unstable" governance of the government company. According to the report, in comments set to fuel fears that liability for the asbestos problems could fall to the commonwealth, the opposition has taken aim at claims by the Gillard government and Telstra that responsibility for the asbestos problems lies with Telstra, declaring NBN Co could have a liability under the Work Health and Safety Act. ASBESTOS UPDATE: ADAO Gets 2013 Silver Stevie(R) Award ------------------------------------------------------ The Asbestos Disease Awareness Organization (ADAO), which combines education, advocacy, and community as the leading U.S. organization serving as the voice of asbestos victims, was presented with a Silver Stevie(R) Award in the Company of the Year ? Non-Profit or Government Organizations category at the 11th Annual American Business Awards in Chicago last night. Since 2004, ADAO has been dedicated to preventing mesothelioma and other asbestos-related diseases. The American Business Awards are the nation's premier business awards program. Nicknamed the Stevies for the Greek word for "crowned," the trophies were presented to honorees during a gala banquet on Monday, June 17 at the Fairmont Chicago Millennium Park Hotel. More than 500 nominees and their guests attended. "With profound gratitude, ADAO is delighted to share this award with our global community," said Linda Reinstein, ADAO Co-Founder and President. "Our community, which includes hundreds of volunteers, patients, and members of the scientific and medical community, is the strength of ADAO. These individuals truly fuel our work with their contributions in, hours, thought, action, and funding. Together, we have leveraged innovation and social media advocacy in an effort to achieve our vision of a world free of asbestos-related disease. We want asbestos to be banned in the U.S. and around the world, and we continue to press toward that goal." More than 3,200 nominations from organizations of all sizes and in virtually every industry were submitted for consideration in a wide range of categories. Stevie Award winners were selected by more than 320 executives nationwide who participated in the judging process this year. "This year's American Business Awards was outsized in every way," said Michael Gallagher, Stevie Awards founder and president. "More entries and more judges than ever before, and I'd have to say the most impressive collection of nominations we've ever received. We congratulate all of this year's Stevie winners for their outstanding work." Details about The American Business Awards and the lists of Stevie Award winners who were announced on June 17 are available at www.StevieAwards.com/ABA. About Asbestos Disease Awareness Organization Asbestos Disease Awareness Organization (ADAO) was founded by asbestos victims and their families in 2004. ADAO seeks to give asbestos victims and concerned citizens a united voice to raise public awareness about the dangers of asbestos exposure. ADAO is an independent global organization dedicated to preventing asbestos-related diseases through education, advocacy, and community. For more information, visit www.asbestosdiseaseawareness.org. About the Stevie Awards Stevie Awards are conferred in four programs: The American Business Awards, The International Business Awards, the Stevie Awards for Women in Business, and the Stevie Awards for Sales & Customer Service. A fifth program, the Asia-Pacific Stevie Awards, will debut this year. Honoring organizations of all types and sizes and the people behind them, the Stevies recognize outstanding performances in the workplace worldwide. Learn more about the Stevie Awards at www.StevieAwards.com. Sponsors and partners of The 2013 American Business Awards include the Business TalkRadio Network, Callidus Software, Citrix Online, Dynamic Research Corporation, Experian, John Hancock Funds, LifeLock, PetRays, and SoftPro. ASBESTOS UPDATE: 3rd Wave of Australian Meso Victims Diagnosed -------------------------------------------------------------- Lucinda Schmidt, writing for Illawara Mercury, reported that two years ago, when she was 45, Jane Krsevan finally discovered the reason for her stabbing back pains and the excess fluid in her lungs. After a frustrating decade of worsening health and conflicting medical opinions, Krsevan's ninth doctor started asking questions about her childhood. When she told him her father was a builder who made insulation boxes for hot water units, he immediately ordered a 3D body scan and a lung biopsy. The diagnosis was devastating, the report noted. Krsevan had malignant mesothelioma, an incurable cancer caused by asbestos. Forty years earlier, while she watched her dad cut asbestos cement sheeting in the garage, she was inhaling puffs of "devil's dust" containing asbestos fibres up to 200 times thinner than a human hair. So were her parents and three siblings, but it is only she who has developed mesothelioma. Appallingly unlucky? Yes. But Krsevan is by no means an isolated example. The number of mesothelioma cases is rising in Australia - - which already has the highest per capita rate in the world -- as the so-called "third wave" of victims is diagnosed. First came the miners, many from the deadly Wittenoom blue asbestos mine in Western Australia's Pilbara, which closed in 1967. Next were the people who worked directly with asbestos, in factories, unloading it at the docks, or as builders, plumbers, electricians and carpenters. Now, the third or "bystander" wave is engulfing people such as Krsevan and includes home renovators and women who washed their husband's dust-laden overalls. Australian mountaineer Lincoln Hall, for example, died last year from asbestos exposure decades earlier, when he helped his father build two cubbyhouses using asbestos cement sheets. He famously survived 12 hours wandering lost near the summit of Mount Everest in 2006, but succumbed to mesothelioma at the age of 56. The recent furore over shoddy asbestos disposal by NBN contractors working in Telstra's pits is a distressing reminder that the asbestos scourge is nowhere near over. Although Australia stopped mining asbestos in 1983, phased out its use in building products by 1989 and banned it entirely from 2004, the long lag before symptoms develop means new cases will continue to rise each year until at least 2020. And, as the Telstra debacle also highlights, asbestos is everywhere in Australia's built environment. The miracle fibre -- named from the ancient Greek word for "inextinguishable" -- was heat resistant, cheap, strong and flexible, making it the prefect material for more than 3000 products, including insulation, carpet underlay, brake linings, roof tiles and cement sheeting. Until recently, government policy has leaned towards letting sleeping dogs lie. Asbestos is only dangerous when its fibres float free, usually from cutting, drilling or sanding it. Now, however, a push is under way to proactively remove asbestos, and to properly record how and when people are exposed to its ghastly needles of death. On July 1, the new Asbestos Safety and Eradication Agency will begin work on a national strategic plan to remove asbestos from government and commercial buildings, increase asbestos awareness and tackle illegal dumping of the toxic waste. It will also oversee the National Asbestos Exposure Register, launched on June 7, which allows anyone to record details of incidents where they may have breathed in asbestos fibres. Barry Robson, president of the Asbestos Diseases Foundation, is relieved that asbestos is back on the political agenda. "After the campaign against Hardies everything died down, everyone thought it was all over, the victims had won," he says, referring to the $4 billion compensation scheme eventually set up in 2007 by James Hardie Industries, which manufactured the bulk of Australia's asbestos products. Bernie Banton, who spearheaded the campaign against James Hardie's initially inadequate and misleading compensation fund, died of mesothelioma the same year, and asbestos faded from the public spotlight. It briefly returned when James Hardie directors, including then chairwoman Meredith Hellicar, were slapped with corporate bans in 2009 (upheld on appeal to the High Court last year), but then things went quiet. "Everyone thought the asbestos problem had gone away," Robson says. "We were screaming, 'It's not over, it's still a problem."' His biggest worry is the lack of awareness in the general community about just how much asbestos is around and the dangers of disturbing it. Asbestos was widely used in Australian buildings between 1945 and 1980 and, as the increasing numbers of bystander claims show, there is no safe level of exposure to loose asbestos fibres. "Anything built before 1987, you can be 99 per cent certain it's got some asbestos in it," he says. Robson's own home, a 1970s brick veneer in Sydney's west, is riddled with the stuff. He's vigilant when tradesmen do any work on his house. But Robson frets about the tens of thousands of DIY home renovators gleefully taking sledgehammers to old bathrooms, sheds and chook houses -- often with their children watching and helping. Indeed, a website about asbestos awareness funded by James Hardie as part of its compensation agreement is directed exclusively at home owners playing "renovation roulette". It was exactly this scenario that lawyer Andrew Dimsey describes as one of his most upsetting cases. His client was a 40-year-old man whose only exposure to asbestos was standing near his father years earlier when he was doing some small home improvements. The father was fine, but his son contracted mesothelioma and died aged 41. Dimsey, the national head of asbestos litigation at law firm Maurice Blackburn, describes asbestos-induced cancer as a lottery. "It's like walking across a freeway without looking left or right. You can do it once and get cleaned up, or do it every day for months and be fine." When he first started working on asbestos compensation claims 12 years ago, most clients were miners and wharfies aged in their 60s, 70s and 80s. Then came the builders and plumbers. Now, Maurice Blackburn's Victorian practice sees about 50 new mesothelioma clients a year, quadruple the number a decade ago -- and the asbestos exposure often has nothing to do with their work. "The really striking thing over the last couple of years is that the new norm is for people with quite light exposure, the bystanders, the home renovators," Dimsey says. "That includes a sprinkling of clients in their 40s and 50s who were exposed as children." Margaret Kent, the head of Slater & Gordon's Melbourne asbestos practice, paints a similar picture. "I've done this work for 16 years and when I began it was all occupational [exposure]," she says. "Now a substantial proportion is home renovators and bystanders." She has seen clients who had only a few hours' exposure when they built a rabbit hutch or demolished an outdoor toilet. Other clients simply walked past James Hardie's asbestos products factory in Brooklyn on their way to and from school. "It's less and less about clients telling me where they worked and more about clients saying, 'I don't know how I was exposed'," Kent says. For asbestos lawyers such as Kent and Dimsey, the third wave bystander claims are much harder to prove and often require detailed interviews with siblings, neighbours and friends about home renovations completed 30 or 40 years ago. Doctors, too, face challenges in accurately diagnosing asbestos- induced cancer in patients with no asbestos work history, especially if they are smokers. Professor Nico van Zandwijk, director of the Asbestos Diseases Research Institute in Sydney, says about 700 people annually are diagnosed with malignant mesothelioma in Australia, a figure that is projected to rise for another 10 or so years. The only known cause of malignant mesothelioma is asbestos exposure. But the asbestos epidemic is far worse than that. Van Zandwijk says malignant mesothelioma is difficult to recognise and studies have shown that about 10 per cent of cases go undiagnosed. Further, he says that for every mesothelioma diagnosis, at least two lung cancer patients are also victims of asbestos exposure. While mesothelioma is a distinctive type of cancer mainly affecting the lining of the lungs or stomach, lung cancer looks the same whether it is caused by asbestos or cigarettes. "It's taken a long time, 20 or 30 years, to be clearer about this," van Zandwijk says. "For the majority of lung cancer patients, the cause is cigarette smoking. But some lung cancer is caused by asbestos." On the best figures available, van Zandwijk estimates that about 15,000 Australians have died of malignant mesothelioma since 1950. Add in the hidden victims of lung cancer caused by asbestos exposure, and the death toll is at least 45,000. Sadly, there are many more deaths to come. Announcing an extra $10.5 million in funding for asbestos protection in the federal budget, Employment and Workplace Relations Minister Bill Shorten noted that up to 40,000 Australians would be diagnosed with asbestos-related disease over the next 20 years. "There are children not yet born who'll die of an asbestos-related disease," he warned. Astonishingly, despite the overwhelming evidence for more than a century of the dangers of asbestos and the rising death rate from bystander exposure, asbestos is still mined by a handful of countries and widely used for building products in many developing nations, including Vietnam and India. In May, a group of seven countries led by Russia (the world's biggest asbestos producer) blocked a move by the UN's Rotterdam Convention to list chrysotile, or white asbestos, as a hazardous substance. The five other types of asbestos, including the deadliest blue and brown varieties, are already listed. It was the fourth time an attempt to list chrysotile had failed: on the previous three occasions, Canada opposed the ban but reversed its position after closing its last asbestos mine last year. Meanwhile, at the Asbestos Diseases Research Institute and elsewhere, scientists are desperately searching for ways to better diagnose and treat asbestos-induced cancers. The ADRI helps oversee a mesothelioma register, established in 2010, where patients are interviewed about how they were exposed to asbestos. It's still early days, but after data from about 300 patients, van Zandwijk says it is clear that the number of cases with no occupational exposure is increasing. At the start of June, ADRI researchers presented a new treatment for mesothelioma (details of which they would not disclose) to the American Society of Clinical Oncologists' annual meeting in Chicago. Van Zandwijk is wary of generating false hope, but describes the potential treatment as "a positive note", with clinical trials scheduled to begin later this year. For Krsevan, a treatment that is -- at best -- years away, may well come too late. "Things are looking OK, hopefully I'm in remission, but I don't know how long that will last," says the mother of two. "I just try not to think about it because otherwise I'd get too depressed." When she first developed fluid on her lungs when she was 34, she thought it was payback for smoking, and immediately gave up. Later, when the stabbing pains began in her back, a doctor told her she had probably pulled a muscle. Another doctor put her on high doses of steroids to ease the pain, with little effect. Since the mesothelioma diagnosis, Krsevan has had chemotherapy, radiotherapy and surgery to remove part of one lung and half her diaphragm. Recently, she spent 17 days in hospital with pneumonia, and has been coughing for the past six months. Just before Christmas, Slater & Gordon finalised a compensation deal with James Hardie, the manufacturer of the asbestos sheeting used by Krsevan's father. The amount is confidential but, as she points out, no amount of money can compensate for the loss of her health. Instead, she is keen to get across to others the message about the dangers of asbestos. "I just want people to be careful. Some people think it will never happen to them." ASBESTOS UPDATE: Architect Denies Darwin Bldg. Contains Asbestos ---------------------------------------------------------------- Conor Byrne, writing for NT News, reported that a building's architect has denied union reports that asbestos has been found at a central Darwin building site. According to the report, the four-storey Paspaley Building has been under demolition for the last few weeks in preparation for building the 18 or 20-storey Charles Darwin Centre on the corner of Smith and Bennett streets. The building's height is undecided. Chief Minister Adam Giles had planned a staged media walk-through of the site for lunchtime, but cancelled it at 11.25am. Officials from the Construction, Forestry, Mining and Energy Union said they took samples from the site and sent them for laboratory examination this morning, which they said identified them as chrysotile, or "white asbestos". But building architect Ross Connolly said Worksafe NT has declared the site safe and that the union was "stirring the pot". "They allegedly discovered some asbestos sheet," he said. He said the material found was harmless cellulose fibre cement. "Worksafe has confirmed that the material found was not asbestos," he said. Worksafe has been contacted for comment. He said the site had been certified asbestos-free by a certified removalist who removed asbestos from the remains of the three buildings about four or five weeks ago. "Clearly when you do an asbestos register there's always the risk that there might be some asbestos that might be not evident at the time the register was prepared," he said. "The contract for the removal makes it incumbent on the operator to obviously deal with anything that turns up in the removal process. "There's a later risk that when you demolish a floor slab or something underneath, given that we're talking about a part of the town that was around in the war, there could be some asbestos sheeting in the soil underneath the building that was neither undiscoverable at the time of the asbestos register preparation nor at the removal." He said there was protocol for any asbestos discovery by workers, and that no reports had been made by workers to the site manager. Mr Connolly has said work has resumed, but the union has said the site was shut. CFMEU assistant secretary Jade Ingham said the site was "riddled" with asbestos. "I can tell you we've better things to do than stir the pot and turn up on sites," he said. "If they were resolute why did they shut the site?" CFMEU official Ben Laokes said they found 10cm x 10cm sheets of material on the site. "The document provided to us saying the asbestos was removed but then you walk through and see sheeting everywhere," he said. "It didn't take us long to find it. We took four steps into the site and we found it. It's all broken up. "The workers there had concerns about it." Asbestos was used as a fire retardant building material until it was banned in 1989 because of health risks from inhaling asbestos fibres. The Paspaley Building is understood to have been built in the early 1980s or earlier. ASBESTOS UPDATE: Fibro Halts Demolition at Ivy Ridge Nursing Home ----------------------------------------------------------------- Amy Z. Quinn, writing for NewsWorks, reported that demolition of the former Ivy Ridge Personal Care Center got underway earlier this month, but stopped abruptly after a city site inspection found asbestos on the site. According to the report, several pieces of heavy machinery and a big pile of rocks and building material are now at 5627 Ridge Ave., slated to become the Kingsley Court development, but the work site is silent. Part of the rear of the building and a fire- damaged carriage house are already down but no work has been done since June 12, when a city inspector shut the site down and posted green violation notices -- including on an excavator. Stephen Goldner, the project's architect who represented the plan before local civic groups, said there was an asbestos removal plan in place on the property and removal work had been ongoing even before the city made its inspection, but referred further questions to contractors, the report related. NewsWorks is reaching out to them for comment. In the days after the fatal Market Street collapse, the city Department of Licenses and Inspections mobilized to conduct inspections of every site with an open demolition permit, the report said. The 3.5-acre site will become Kingsley Court, a 32-home neighborhood of twin carriage houses. Goldner previously told NewsWorks several of the homes were sold or pending. ASBESTOS UPDATE: Fibro Discovery Could Slow Down Ind. Fire Probe ---------------------------------------------------------------- Fox59 reported that federal investigators are now sifting through the rubble at the site of that massive warehouse fire on Belmont Avenue. According to the report, the fire broke out on June 15 and proved to be a real battle for all of the responding fire fighters. Local Homeland Security officials tell us they have since found asbestos on scene, so more protective gear is a must, the report said. The discovery might also slow down the investigation, which is expected to take a minimum of seven to 10 days. "The ATF investigators and our fire investigators are equipped with respirators and they would prefer not to wear them because it's much easier to work with something not on your face but their health is a priority for us," said Captain Rita Burris, the report cited. Asbestos exposure risks for nearby homeowners have been described as "minimal". EPA is expected to release air quality test results. ASBESTOS UPDATE: Gov. Furious as Cwmcarn Asbestos Saga Goes On -------------------------------------------------------------- Emma Mackintosh, writing for South Wales Argus, reported that governors of Cwmcarn High School met again in a bid to end a stalemate over who will complete GBP1 million worth of asbestos repairs at the site. According to the report, a war of words has sparked between the governors, their specialist advisors Ensafe and Caerphilly council in recent weeks, as each accuses the other of changing its demands, despite GBP1 million works to remove airborne asbestos being formally agreed in April. The council announced on June 6 that it would no longer deal with Ensafe because it said they kept asking for improvements that had not been agreed to, and which could be deemed preferential in light of the 21st Century Schools programme, the report said. Ensafe spokesman Greg Kirkman responded that the works were necessary as a consequence of removing asbestos and to comply with building regulations, the report related. Meanwhile, pupils are still being bussed to Ebbw Vale while they wait for the governors to choose whether Ensafe or the council will carry out the works, eight months after the school closed in October last year, the report added. Governors failed to come to a decision, prompting the authority to issue a statement in which acting chief executive Nigel Barnett said time was running out, the report related. The governors also hit back on the school's website, describing the council's stance as aggressive and accusing it of using delaying tactics which are detrimental towards the school. In a statement chairman of governors Gary Thomas said: "The governing body was twice ready to sign a copy of the grant agreement provided by the council on May 16 and 23. "However, the council has continually introduced new and even more onerous terms and conditions, thus preventing the governing body from signing it." The governors have received additional legal health and safety guidance from the Health and Safety Executive but said the council has not responded to requests to clarify who is legally responsible. "This has left the school with an impossible situation," said the statement. A Caerphilly council spokesman said he was unable to comment until after a meeting had taken place. ASBESTOS UPDATE: Fibro Panels Dumped at Newbiggin Land ------------------------------------------------------ News Post Leader reported that asbestos roofing sheets were among several items found dumped on open land in Newbiggin. According to the report, council workers are now appealing for anyone with information on the fly-tipping to report information. The asbestos sheets were left at Spittal Burn Park on or around June 5, the report related. The sheets formed the bulk of the rubbish, alongside wooden shelving and green waste. The council is appealing for information regarding the origins of the waste and any vehicle that was seen carrying it. Coun Deidre Campbell, policy board member for street care and environment at Northumberland County Council, said: "Fly-tipping shows a total disregard for residents and the environment. "It is not only an eyesore, but poses a serious risk to people's health. "I would encourage anyone who may have any information to get in touch so we can make Northumberland cleaner and safer for everyone." Anyone with any information about this or fly-tipping in general can call the council on 0845 600 6400. Calls will be treated in confidence. ASBESTOS UPDATE: Asons Solicitors Warn of Secondary Exposure ------------------------------------------------------------ Debbie Brewer, 53, spent seven years fighting the asbestos related illness, a rare cancer that affects the lining of the lungs. She was contaminated with asbestos fibres as a child after welcoming her father Phillip Northmore home from work, once he had finished work as an asbestos lagger. This initial contamination led to the eventual development of mesothelioma. Most cases of mesothelioma arise in people who come into direct contact with asbestos, this usually occurs within their working environment. These workers will usually have mined asbestos, created asbestos-containing products, or used asbestos materials during construction. But Asbestos.com warns that people can contract an asbestos related illness without ever working with or near the toxic material. Secondary exposure, or indirect exposure, can be just as dangerous. It is believed she contracted the disease as a child; when hugging her father, asbestos fibres were released into the air from his clothing, where they were then inhaled when she was between 3 and 6. Mr Northmore died from asbestos-related lung cancer at the age of 68 in 2006 -- the same year that Ms Brewer was diagnosed with the long-dormant mesothelioma. Mesothelioma can lie dormant for up to 40 years, and when it does emerge, the prognosis is generally poor -- where the condition is usually fatal within about two years. Suzanne Yates stated that: "While any kind of exposure is much less common today, women faced an increased risk for secondary asbestos exposure when asbestos was used frequently during the mid-20th century. After a day of working with asbestos related products, workers could potentially carry home asbestos fibres on their hair, skin and clothes and create a secondary exposure risk for their families." According to asbestos.com between 1941 and 1954, Mount Sinai Medical Center in New York City studied the health of 679 people related to 1,664 workers employed at a factory in Patterson, New Jersey. The researchers discovered five cases of mesothelioma among the family members. Sources of asbestos dust were also discovered in the homes of former Patterson factory workers as much as 20 years after the factory was closed. Responsible for a large proportion of mesothelioma cases among women, secondary asbestos exposure has also affected the lives of children. If exposed at an early age, people are much more likely to develop an asbestos related illness in the future. Some of the most common ways a family member may have experienced secondary asbestos exposure included coming into contact with contaminated clothing, furniture and tools. While family members who receive secondary exposure do not have any direct contact with asbestos-containing products, the amount of asbestos dust brought home is enough to cause mesothelioma or other asbestos-related illnesses later in life. Asons Solicitors suggest that if someone would like to learn more about the asbestos related illness claims process, or if they would like to better understand asbestos related illness, that information is available at http://www.asons.co.uk,or via an expert helpline on 01204 521 133 Asons Solicitors is a Bolton-based law practice that specialises in personal injury and industrial disease claims. Founded by brothers Imran Akram and Kamran Akram, Asons Solicitors has developed to become a young and dynamic law firm that delivers practical solutions to clients in times of difficulty. Their continued focus on their staff has seen them awarded with the Investors in People "Gold Award"; which is reflected in the professional and personable approach they take in working with clients. They strive to grow and to develop, and their supportiveness and attention to detail ensures that their clients use them time and again. For further information contact: Email: info (at) asons (dot) co.uk Website: http://www.asons.co.uk ASBESTOS UPDATE: "Drug House" Asbestos Spurs Rising Frustration --------------------------------------------------------------- Iliana Stilitano, writing for Camden-Narellan Advertiser, reported that Camden council has been unsuccessful in its bid to have the owner of a Catherine Field property remove exposed asbestos on the site. According to the report, a pile of rubble still remains on the Springfield Road property after a house, which police said was used as a drug lab, burnt down in October last year. A resident who asked not to be named said the council had a duty of care to remove the asbestos, the report related. "Council has the authority to clean it up off their own bat," the resident said. "They rarely use that authority, but I think in this case it should be done, because the asbestos fibres are exposed. At the very least they should cover it with plastic." A council spokeswoman said orders that were issued to the owner had so far been ignored. In a statement, the spokeswoman said: "At this stage the works have not been undertaken, but council officers will continue to follow up." The Advertiser asked the council to say when the orders were issued and how long before it would take further action on the owner, who had so far ignored the council's request. The Advertiser also asked whether the council thought the asbestos posed a threat to the community. The spokeswoman said: "At this time council is not able to disclose any further information as it is legal in privilege. "We can say that orders for the property remain in place (and) council has taken, and will continue to take, all legal avenues available to deal with this issue." Police said the house had been used to manufacture amphetmines. No arrests have yet been made. ASBESTOS UPDATE: Suit Remanded Over Ambiguous Contract Provisions ----------------------------------------------------------------- A three-judge panel of the Court of Appeals of Texas, Fourteenth District, Houston, issued an opinion dated June 11, 2013, granting an appeal from a trial court's ruling denying the summary judgment motions by the successors of parties to an asset stock purchase agreement. The appeal arises from a contract dispute between Diamond Offshore Company and Kaneb Management Company, L.L.C., concerning an asset and stock purchase agreement between their predecessors. Kaneb provided contract drilling services to the oil-and-gas industry. Directly or through subsidiaries, it owned a number of offshore drilling rigs, barge rigs, some yard facilities, personal property, and equity in other companies. In 1989, Diamond bought Kaneb's assets. Some of Kaneb's workers continued to work for Diamond after the sale. Some individuals who had been employed by Kaneb before the sale but did not work for Diamond after the sale later sued Diamond for personal injuries they allegedly sustained as a result of their exposure to asbestos while employed by Kaneb. Diamond sued Kaneb and its parent company NuStar Energy L.P., seeking declaratory judgment that under the terms of the Agreement, Diamond did not assume liability for claims by "Employees" that were "[b]ased upon injuries identifiably sustained prior to the Closing Date" and that resulted from Kaneb's "ownership or operation of the assets prior to the Closing Date." Diamond also asked for a declaration that Kaneb assumed liability for these claims. Kaneb counterclaimed, asking for a declaration that Diamond assumed liability for claims that allegedly arose from asbestos exposure before the Closing Date, but that accrued after the Closing Date. In its first issue, Kaneb argues that its interpretation of the Agreement is the only reasonable one, and thus, the trial court erred in denying its summary-judgment motion and granting Diamond's cross-motion. As an alternative, Kaneb argues in its second issue that its interpretation of the Agreement is at least a reasonable one, and thus, the trial court erred in granting summary judgment to Diamond. As a further alternative, Kaneb asserts in its third issue that the Court of Appeals must reverse the ruling and remand the case because the particular declarations recited in the judgment do not resolve the parties' dispute. The Court of Appeals found that because the Agreement is ambiguous and the ambiguity is not resolved by other contract provisions, case law interpreting the liability-insurance policies, statute, or extrinsic evidence, neither party is entitled to summary judgment. The case is remanded to the trial court for further proceedings. The case is NuSTAR ENERGY, L.P., AND KANEB MANAGEMENT COMPANY, L.L.C., Appellants, v. DIAMOND OFFSHORE COMPANY, Appellee, NO. 14- 12-00657-CV (Tex. App.). A full-text copy of the Decision is available at http://is.gd/hDjBB2from Leagle.com. ASBESTOS UPDATE: Crane Co. Allowed to Amend Answer to Widow's Suit ------------------------------------------------------------------ In the asbestos action titled ROSIE K. SWEREDOSKI, as Personal Representative of the Estate of DOUGLAS A. SWEREDOSKI, and Individually Recognized as Surviving Spouse, v. ALFA LAVAL, INC., et al., C.A. NO. PC 2011-1544 (R.I. Super.)., Defendant Crane Co., filed a motion for leave to file an amended answer to the Plaintiff's fourth amended complaining to plead a new affirmative defense. The Plaintiff opposes the Motion, arguing that the Defendant waived all affirmative defenses not pled in its first Answer, and she will be unduly prejudiced by the Defendant's proposed amendment at this late stage of the litigation. From 1964 to 1968, Robert Sweredoski served in the United States Navy where he worked as a fireman and boiler operator in the ship's boiler rooms. During his time in the Independence's boiler rooms, Sweredoski replaced the packing and gaskets in steam valves allegedly designed and manufactured by the Defendant. Both the packing and gaskets contained asbestos. The Plaintiff alleges that as a result of Mr. Sweredoski's exposure to these asbestos- containing packing and gaskets, he developed malignant mesothelioma and eventually died from the disease. The Superior Court of Rhode Island, Providence, SC, on May 22, 2013, granted the Defendant's Motion to amend its answer holding that despite the Defendant's delay in seeking to amend its answer, the Plaintiff has failed to carry its burden of showing that she would be prejudiced by the Defendant's proposed amendment. The Plaintiff, according to the Superior Court, has adequate time to prepare a response for trial and that she was not unfairly surprised by the Motion because she had notice of general and specific facts tending to show that the government contractor defense could be in issue in the instant case. A full-text copy of the Superior Court's Decision is available at http://is.gd/R47uoRfrom Leagle.com. ASBESTOS UPDATE: Appeal From Dismissal of Suit v. Developer Denied ------------------------------------------------------------------ On June 19, 2008, 18 plaintiffs filed a complaint for damages against (1) Lennar Corporation; Lennar-BVHP, LLC; Lennar Homes of California, Inc.; Lennar Associates Management, LLC; and Lennar Communities, Inc.; Gordon N. Ball, Inc.; and (3) CH2M Hill. The complaint included causes of action for public nuisance, negligence (environmental racism), intentional and negligent infliction of emotional distress, and battery. The Plaintiffs alleged that they were injured by dust containing naturally occurring asbestos, which became airborne as a result of the Defendants' grading-related activities on a parcel of land in San Francisco. The Plaintiffs further alleged that they had suffered various physical symptoms from the asbestos, including headaches, red eyes, bronchitis and other respiratory problems, sinus infections, nosebleeds, cardiac pain, and skin rashes. Each of the three Defendants filed separate motions for summary judgment, which were granted by the trial court. The Plaintiffs filed a notice of appeal. In a decision dated May 22, 2013, the Court of Appeals of California, First District, Division Two, denied the Appeal holding that because the Plaintiffs did not satisfy their burden of raising a triable issue of material fact as to causation on any of their causes of action, the trial court property granted summary judgment in favor of all the Defendants. The Court of Appeals noted that the Plaintiffs' evidence, which lacks competent expert testimony or any other evidence showing causation, failed to raise a triable issue of fact as to whether (1) any of the Plaintiffs were exposed to particular toxins in the dust from the property at sufficient levels to cause harm, and (2) that toxic dust was a substantial factor in any of the Plaintiffs' illnesses. The case is MARSAE SCOTT et al., Plaintiffs and Appellants, v. LENNAR CORPORATION et al., Defendants and Respondents, NO. A133890 (Cal. App.). A full-text copy of the Court of Appeals Decision is available at http://is.gd/MC0xstfrom Leagle.com. ASBESTOS UPDATE: Ct. Rules on Insurance Issue in Lukens PI Suits ---------------------------------------------------------------- Plaintiffs Graphic Arts Mutual Insurance Co., Utica Mutual Insurance Co., and Republic Franklin Insurance Co., filed a complaint seeking a declaratory judgment that D.N. Lukens, Inc., a distributor/supplier of raw materials serving the coatings, plastics, graphic arts and other industries, must contribute its pro rata share of any payments made to settle or satisfy any judgment that may enter against it in five toxic tort suits, and any future toxic tort claims or suits that may be made or filed against Lukens in which the coverage of any of the Plaintiff- insurers is implicated. The five lawsuits, which are pending in Massachusetts Superior Court, alleged significant injuries from exposure to toxic substances owned, supplied, sold or controlled by Lukens. Of the five lawsuits, one sought redress for injuries from a variety of chemicals and toxic metals, while the remaining four suits alleged harm by exposure to asbestos. Lukens denies that it should share in the payments and has asserted counterclaims under Mass. Gen. Laws ch. 93A against Utica based on their conduct with respect to the settlement of one of the toxic tort cases, their failure to establish conflict screens between the claims handlers in the cases and the claims handlers for the declaratory judgment action, and for their refusal to relinquish control of the litigation of the remaining cases. Lukens has also brought Chapter 93A actions against Nominal Defendants for their failure to cede control of the defense of the five lawsuits, and against AIPIC and Granite State, individually, for their conduct with respect to the settlement of the toxic tort case. The Defendants have filed separate motions for summary judgment seeking the same relief. In a finding and order dated May 29, 2013, Judge Timothy S. Hillman of the United States District Court for the District of Massachusetts granted the motions in part and denied them in part. Judge Hillman said the Massachusetts Supreme Judicial Court's decision on the case Boston Gas Co. v. Century Indem. Co., 454 Mass. 337 (2009) applies in the instant case. That decision, according to Judge Hillman, dramatically changed the landscape for insurance coverage over progressive injury claims. The SJC held that insurers and insureds alike must contribute to any judgment entered in a progressive injury claim on a pro rata basis, calculated by the length of time each was "on the risk." Accordingly, Judge Hillman granted Utica's motion and entered a declaration that the methodology outlined in Boston Gas applies to two asbestos lawsuits filed by Donna MacDowell and Patricia MacDowell, both of which are pending in Middlesex Superior Court, and that the "continuous trigger" approach should be used to determine when the injuries occurred, thereby obligating Lukens to pay its proportionate share of any judgment entered in either suit. With respect to one of the asbestos lawsuit filed by Frank Mastrogiacomo, Judge Hill declared that Lukens is not bound to pay a proportionate share of the settlement entered in the case. Judge Hillman also granted the motions for summary judgment as to Luken's counterclaims that allege damages for Utica's failure to cede the defense of the asbestos cases and deny the motions for summary judgment in all other respects. The case is GRAPHIC ARTS MUTUAL INSURANCE CO. UTICA MUTUAL INSURANCE CO., and REPUBLIC FRANKLIN INSURANCE CO., Plaintiffs, v. D.N. LUKENS, INC., Defendant, and ARROWOOD INDEMNITY COMPANY, AMERICAN INTERNATION PACIFIC INSURANCE CO., and GRANITE STATE INSURANCE CO., Nominal Defendants/Interested Parties, CIVIL ACTION NO. 11-CV-10460-TSH (D. Mass.). Graphic Arts Mutual Insurance Company, Utica Mutual Insurance Company, and Republic Franklin Insurance Company, Plaintiffs, are represented by Kurt B. Fliegauf, Esq. -- kfliegauf@connkavanaugh.com -- and Russell F. Conn, Esq. -- rconn@connkavanaugh.com -- at Conn, Kavanaugh, Rosenthal, Peisch & Ford, LLP. D.N. Lukens, Inc., Defendant, is represented by Douglas T. Radigan, Esq., and James P. Hoban, Esq., at Bowditch & Dewey. American International Pacific Insurance Company and Granite State Insurance Company, Defendants, are represented by Julie S. Selesnick, Esq. -- jselesnick@jackscamp.com -- and Kristan Cassidy, Esq. -- kcassidy@jackscamp.com -- at Jackson & Campbell PC. Frank Mastrogiacomo, Movant, is represented by Michelle L. Newton, Esq. -- MLN@StoneInjury.com -- Jason Stone Injury Lawyers. Arrowood Indemnity Company, Interested Party, is represented by Michael F. Aylward, Esq. -- maylward@morrisonmahoney.com -- at Morrison Mahoney LLP. ASBESTOS UPDATE: Integrity Not Required to Pay Congoleum Claims ---------------------------------------------------------------- Integrity Insurance Company issued policies to Congoleum Corporation. Congoleum submitted timely proofs of claim for which it sought coverage under the policies. The liquidator of Integrity Insurance, relying on In the Matter of the Liquidation of Integrity Insurance Co., 193 N.J. 86 (2007), issued seven notices of determination (NODs) disallowing the incurred but not reported claims for insufficient supporting documentation, failure to document the exhaustion of limits of coverage of the underlying policy to the Integrity policy, and allowance of contingent claims is prohibited by New Jersey statute. As a result of the approval of Congoleum's bankruptcy plan of reorganization, effective July 1, 2010, The Congoleum Plan Trust, is the successor-in-interest to the policies Integrity issued to Congoleum. The Trust timely filed an objection to the NODs. The liquidator declined to amend his decision and submitted the Trust's objection to the special master for consideration. In a February 25, 2011 written determination, the special master upheld the liquidator's decision. The special master determined that Congoleum's claims could not be allowed because they were not "absolute claims" as defined by Integrity Insurance's Amended Liquidation Closing Plan. The special master rejected Congoleum's contention that its claims were third-party claims allowable under N.J.S.A. 17:30C-28(b), stating that the statute is inapplicable to the case at hand. The Trust appealed to the liquidation court. In an April 29, 2011 order and written opinion, the court confirmed the special master's determination. The court noted that pursuant to the Amended LCP, a claim would only be considered if it became absolute on or before June 30, 2009. The court found that the special master had properly determined that Congoleum did not submit absolute claims as defined in the Amended LCP and determined in In the Matter of the Liquidation of Integrity Insurance Co. The court held: "Congoleum Corporation's claims still do not have fixed liability and have not been settled or adjudicated." The court rejected Congoleum's argument that its bankruptcy should be considered in evaluating the claims. The court also agreed that N.J.S.A. 17:30C-28(b) did not apply because Congoleum's claims were not third-party claims. On appeal, Congoleum raises the same arguments as those raised and decided in Commissioner of Insurance of the State of New Jersey v. Integrity Insurance Co./W.R. Grace & Co., (W.R. Grace), No. A- 2505-10 (App. Div. Jan. 11, 2012) (slip op. 16 to 25), certif. denied, 211 N.J. 607 (2012). For reasons expressed in W.R. Grace, the Superior Court of New Jersey, Appellate Division, in a June 17, 2013 decision, denied the appeal raised by the Appellant and held that: "We reject the Trust's argument that this case differs from W.R. Grace because here, the Trust is only seeking approval for claims that were identified, processed and settled prior to the bar date. A claim is not an 'absolute claim' unless 'liability and value has been fixed by actual payment by the Claimant or by judgment of a court of law' before the June 30, 2009 bar date. Although some claims may have been identified and processed before the bar date, liability and value were not fixed by actual payment before that date because Congoleum was in bankruptcy and the bankruptcy court did not approve Congoleum's reorganization plan, which included the settlements, until July 1, 2010." The case is IN THE MATTER OF THE LIQUIDATION OF INTEGRITY INSURANCE COMPANY, NO. A-5273-10T1 (N.J. Super. App. Div.). A full-text copy of the Decision is available at http://is.gd/fiIMth from Leagle.com. Robert M. Horkovich, Esq. -- rhorkovich@andersonkill.com -- and Robert Y. Chung, Esq. -- rchung@andersonkill.com -- at Anderson Kill & Olick, P.C., argued the cause for appellant The Congoleum Plan Trust. David M. Freeman, Esq., and John D. Gagnon, Esq., at Mazie Slater Katz & Freeman, LLC, argued the cause for respondent Thomas B. Considine, Commissioner of Banking and Insurance of the State of New Jersey in his capacity as Liquidator of Integrity Insurance Company. ********* 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. 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