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C L A S S A C T I O N R E P O R T E R
Friday, September 6, 2013, Vol. 15, No. 177
Headlines
ALIGN TECHNOLOGY: Securities Suit Plaintiff Amends Complaint
CAL-MAINE FOODS: Has Yet to Finalize Direct Purchasers Suit Deal
COLE REAL ESTATE: Awaits Ruling on Bid to Dismiss Maryland Suit
COLE REAL ESTATE: Awaits Rulings in Merger-Related Suits in Ariz.
DOW CHEMICAL: Faces Suit Over Asbestos Use at Plaquemine Plant
DRINK LLC: Employees Win Suit Over Use of Tip to Pay Shortages
FRANKLIN FINANCIAL: Bank Participates in Suit vs. PLMBS Servicer
FRISCH'S RESTAURANTS: Parties Briefing in Employee Suit Appeal
GENTIVA HEALTH: Denied Summary Judgment for FLSA Liability
GENTIVA HEALTH: March 2014 Status Conference Set in Labor Suit
GENTIVA HEALTH: Awaits Ruling on Motion to Dismiss Stock Suit
HSBC FINANCE: Actions Over Debt Cancellation Remain Pending
HSBC FINANCE: Briefing in "Jaffe" Suit to End in Mid-September
HSBC FINANCE: Continues to Defend Lender-Placed Insurance Suits
HSBC FINANCE: Final Hearing on MDL 1720 Settlement on Sept. 12
HSBC FINANCE: Parties in TCPA Violations Suit Still in Discovery
JOHNSON & JOHNSON: New Tylenol Caps to Bear Risk Warnings
KERYX BIOPHARMACEUTICALS: Shareholders Amend New York Lawsuit
KIA MOTORS: Recalls 10,000 SUVs Over Front Axle Failure
KINDER MORGAN: Continues to Defend "Allen" Suit in Delaware
KINDER MORGAN: Waits for Sept. 9 Deal Hearing in Merger Suits
MARKET LEADER: Defends Consolidated Merger-Related Class Suit
MERCK & CO: Patients File Suits Over Januvia Side Effects
METABOLIX INC: Awaits Ruling on Motion to Junk Securities Suit
MYLAN INC: Updates on Antitrust Suits Over Lorazepam, Clorazepate
NAT'L FOOTBALL: Settlement Gets Mixed Reactions From Players
NAT'L FOOTBALL: Tony Dorsett Hopes Settlement Can Help Players
NSP-WISCONSIN: Uncertain If Plaintiffs Will Seek Further Review
ORTHO-MCNEIL-JANSSEN: Illinois Man Files Risperdal Mass Tort Claim
PNM RESOURCES: Navajo Nation Allottees Appeal Dismissal of Suit
REYNOLDS AMERICAN: October Status Conference in "Turner" Suit
REYNOLDS AMERICAN: Continues to Face "Howard" Suit in Illinois
REYNOLDS AMERICAN: Feb. 2014 Status Conference in "Craft" Suit
REYNOLDS AMERICAN: "Young" Stayed Pending Program to Stop Smoking
REYNOLDS AMERICAN: "Parsons" Personal Injury Lawsuit Stayed
REYNOLDS AMERICAN: Still Faces Suit Over Nicotine Addiction
REYNOLDS AMERICAN: Saskatchewan Case Remains Active
REYNOLDS AMERICAN: Indirect Purchasers' Antitrust Case Dismissed
REYNOLDS AMERICAN: Motion to Dismiss Filed in Lawsuit v. JTI-MC
REYNOLDS AMERICAN: "Villareal" Plaintiff Wants to Amend Complaint
REYNOLDS AMERICAN: Plaintiffs in "Tatum" Suit Appeal Dismissal
TENNESSEE VALLEY: Dismissal of Hurricane Katrina Suit Affirmed
TENNESSEE VALLEY: TVARS Beneficiaries Suit Reopened in July
WISCONSIN POWER: No Loss Contingency for Pension Plan Suit
WISCONSIN POWER: No Case Schedule Yet in Flood Damage Lawsuit
Asbestos Litigation
ASBESTOS UPDATE: Dow Chemical Faces Suit Over Fibro Use at Plants
ASBESTOS UPDATE: CONSOL Subsidiary Has 6,900 Fibro Claims
ASBESTOS UPDATE: MeadWestvaco Corp. Had 550 PI Suits at June 30
ASBESTOS UPDATE: Noble Corp. Had 33 Exposure Suits at June 30
ASBESTOS UPDATE: AIG Increased Gross Reserves by $23 Million
ASBESTOS UPDATE: IDEX Corp. Continues to Defend Exposure Suits
ASBESTOS UPDATE: Houston Wire Continues to Defend PI Lawsuits
ASBESTOS UPDATE: TMS Int'l. Continues to Defend PI Claims
ASBESTOS UPDATE: Sealed Air Records $388MM Interest in Grace Deal
ASBESTOS UPDATE: AMETEK Inc. Continues to Defend Fibro Lawsuits
ASBESTOS UPDATE: MetLife Received 3,129 Fibro Claims at June 30
ASBESTOS UPDATE: "Take-Home" Suit v. ACE Remains Pending in NJ
ASBESTOS UPDATE: Transocean Continues to Defend Exposure Lawsuits
ASBESTOS UPDATE: Transocean Unit Had 899 PI Suits at June 30
ASBESTOS UPDATE: Huntington Ingalls Continues to Defend Suits
ASBESTOS UPDATE: NL Industries Continues to Defend PI Lawsuits
ASBESTOS UPDATE: Parker Drilling Had 15 PI Lawsuits as of June 30
ASBESTOS UPDATE: Scotts Miracle-Gro Continues to Defend PI Cases
ASBESTOS UPDATE: Standard Motor Has 2,230 Exposure Cases
ASBESTOS UPDATE: Joy Global Continues to Defend Fibro Cases
ASBESTOS UPDATE: "Smothers" Suit Remanded to Calif. Superior Court
ASBESTOS UPDATE: Bid to Transfer "Hulen" Suit to Texas Granted
ASBESTOS UPDATE: Ohio Court Junks Insurance Suit v. Busy Beaver
ASBESTOS UPDATE: MDL Court Grants 418 Motions to Dismiss Suits
ASBESTOS UPDATE: Specialty Products Proceeds to Appellate Process
ASBESTOS UPDATE: With Fibro Removed, DOE Returns to Federal Bldg.
ASBESTOS UPDATE: Fibro Dumped by Fly-tippers in Southampton
ASBESTOS UPDATE: Daughter Names 47 Companies in Exposure Suit
ASBESTOS UPDATE: Couple Names 82 Companies in Exposure Suit
ASBESTOS UPDATE: Coventry Family Wins Fibro-related Death Case
ASBESTOS UPDATE: Scrap Metal Merchant Killed by Mesothelioma
ASBESTOS UPDATE: Family Left Waiting with Fibro in Ceiling
ASBESTOS UPDATE: Three Charged in Fibro-related Crimes
ASBESTOS UPDATE: Dangerous Dust Found in Northampton School Roof
ASBESTOS UPDATE: Victims Welcome Government Consultation on ELIB
ASBESTOS UPDATE: MDL Court Awards Georgia-Pacific Summary Judgment
ASBESTOS UPDATE: 85-Year Old Man Awarded $320,000 Damages
ASBESTOS UPDATE: Jeff Davis Parish Library Work on Hold
ASBESTOS UPDATE: Cancer Death Question Mark Causes Concern
ASBESTOS UPDATE: Fulton County OKs $200,000 for Fibro Removal
ASBESTOS UPDATE: Dow Chemical to Appeal Meso Victim's $6MM Award
ASBESTOS UPDATE: Chester Redevelopment to Clean Former Sears Site
ASBESTOS UPDATE: TTS Minister Faces Questions on Fibro Disposal
ASBESTOS UPDATE: European Reinsurers Should Focus on US APH
ASBESTOS UPDATE: Huge Fibro Clean-up at Fulham Property
*********
ALIGN TECHNOLOGY: Securities Suit Plaintiff Amends Complaint
------------------------------------------------------------
An amended complaint was filed in a securities class action filed
against Align Technology, Inc. in the United States District Court
for the Northern District of California, according to the
company's Aug. 2, 2013, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended June 30, 2013.
On November 28, 2012, plaintiff City of Dearborn Heights Act 345
Police & Fire Retirement System filed a lawsuit against Align,
Thomas M. Prescott ("Mr. Prescott"), Align's President and Chief
Executive Officer, and Kenneth B. Arola ("Mr. Arola"), Align's
former Vice President, Finance and Chief Financial Officer, in the
United States District Court for the Northern District of
California on behalf of a purported class of purchasers of our
common stock (the "Securities Action").
On July 11, 2013, an amended complaint was filed, which names the
same defendants, on behalf of a purported class of purchasers of
our common stock between January 31, 2012 and October 17, 2012.
The amended complaint alleges that Align, Mr. Prescott and Mr.
Arola violated Section 10(b) of the Securities Exchange Act of
1934 and Rule 10b-5 promulgated thereunder, and that Mr. Prescott
and Mr. Arola violated Section 20(a) of the Securities Exchange
Act of 1934. Specifically, the amended complaint alleges that
during the purported class period defendants failed to take an
appropriate goodwill impairment charge related to the April 29,
2011 acquisition of Cadent Holdings, Inc. in fourth quarter of
2011, the first quarter of 2012 or the second quarter of 2012,
which rendered our financial statements and projections of future
earnings materially false and misleading and in violation of GAAP.
The amended complaint seeks monetary damages in an unspecified
amount, costs and attorney's fees. Align intends to file a motion
to dismiss the amended complaint. That motion is due no later than
August 22, 2013. Align intends to vigorously defend itself against
these allegations. Align is currently unable to predict the
outcome of this amended complaint and therefore cannot determine
the likelihood of loss nor estimate a range of possible loss.
CAL-MAINE FOODS: Has Yet to Finalize Direct Purchasers Suit Deal
----------------------------------------------------------------
Cal-Maine Foods, Inc., has yet to finalize its settlement of a
consolidated antitrust lawsuit brought by direct purchasers of
eggs or egg products, according to the Company's August 5, 2013,
Form 10-K filing with the U.S. Securities and Exchange Commission
for the year ended June 1, 2013.
Since September 25, 2008, the Company has been named as one of
several defendants in numerous antitrust cases involving the
United States shell egg industry. In some of these cases, the
named plaintiffs allege that they purchased eggs or egg products
directly from a defendant and have sued on behalf of themselves
and a putative class of others who claim to be similarly situated.
In other cases, the named plaintiffs allege that they purchased
shell eggs and egg products directly from one or more of the
defendants but sue only for their own alleged damages and not on
behalf of a putative class. In the remaining cases, the named
plaintiffs are individuals or companies who allege that they
purchased shell eggs and egg products indirectly from one or more
of the defendants -- that is, they purchased from retailers that
had previously purchased from defendants or other parties -- and
have sued on behalf of themselves and a putative class of others
who claim to be similarly situated.
The Judicial Panel on Multidistrict Litigation consolidated all of
the putative class actions (as well as certain other cases in
which the Company was not a named defendant) for pretrial
proceedings in the United States District Court for the Eastern
District of Pennsylvania. The Pennsylvania court has organized
the putative class actions around two groups (direct purchasers
and indirect purchasers) and has named interim lead counsel for
the named plaintiffs in each group.
There are now seven non-class lawsuits pending. Six of the non-
class lawsuits are pending in the United States District Court for
the Eastern District of Pennsylvania. The other non-class lawsuit
is pending in District Court of Wyandotte County, Kansas. The
plaintiffs in two other non-class lawsuits originally filed in the
Eastern District of Pennsylvania voluntarily dismissed their
lawsuits without prejudice. The plaintiffs in two other non-class
lawsuits originally filed in the Eastern District of Pennsylvania
voluntarily dismissed their lawsuits without prejudice.
Direct Purchaser Putative Class Action
The direct purchaser cases were consolidated into In re: Processed
Egg Products Antitrust Litigation, No. 2:08-md-02002-GP, in the
United States District Court for the Eastern District of
Pennsylvania. The court granted the defendants' motion to dismiss
direct purchaser class plaintiffs' claims for damages outside the
four-year statute of limitations but did so without prejudice to
the plaintiffs' right to seek leave to further amend their
complaint if they, in good faith, believe they can address the
deficiencies noted by the court. The direct purchasers filed an
amended complaint, and the Company filed a renewed motion to
dismiss the claims in the new complaint that are barred by the
four-year statute of limitations. The court has granted final
approval to two settlements in these cases. In one settlement,
the settling party will not pay any money to the putative class.
Instead, the settling defendant, while denying all liability and
while remaining a defendant in certain non-class cases, will
provide cooperation in the form of documents and witness
interviews to the direct class plaintiffs' attorneys. In the other
settlement, the settling defendant will pay a total of $25 million
and would provide other consideration in the form of documents,
witness interviews, and declarations. This settling defendant
denied all liability in its agreement with the direct purchaser
class plaintiffs and stated publicly that it settled merely to
avoid the cost and uncertainty of continued litigation.
On July 23, 2013, the Company announced that it has reached an
agreement in principle to settle this matter.
Indirect Purchaser Putative Class Action
The indirect purchaser cases were consolidated into In re:
Processed Egg Products Antitrust Litigation, No. 2:08-md-02002-GP,
in the United States District Court for the Eastern District of
Pennsylvania. The court granted with prejudice the defendants'
renewed motion to dismiss claims arising outside the limitations
period applicable to most causes of action. Discovery is ongoing
in this case.
Non-Class Cases
Six of the cases in which plaintiffs do not seek to certify a
class have been consolidated with the putative class actions into
In re: Processed Egg Products Antitrust Litigation, No. 2:08-md-
02002-GP, in the United States District Court for the Eastern
District of Pennsylvania. The court granted the defendants'
motion to dismiss the direct plaintiffs' claims for damages
outside the four-year statute of limitations but did so without
prejudice to the plaintiffs' right to seek leave to further amend
their complaint if they, in good faith, believe they can address
the deficiencies noted by the court. The direct plaintiffs have
filed further amended complaints, and the Company has filed a
renewed motion to dismiss the claims in the new complaint that are
barred by the four-year statute of limitations. Discovery is
ongoing in this case.
On January 27, 2012, the Company filed its answer and affirmative
defenses in the non-class case pending in Kansas state court
styled as Associated Wholesale Grocers, Inc., et al., v. United
Egg Producers, et al., No. 10-CV-2171, and the Company joined
other defendants in the Kansas case in moving to dismiss all
claims for damages arising outside the three-year statute of
limitations period and all claims for damages arising from
purchases of eggs and egg products outside the state of Kansas.
The court took under advisement the limitations motion, pending a
ruling in another case that will determine whether the limitations
period in the Kansas case will be three or five years. The court
reserved judgment on the motion to dismiss claims for damages
arising from purchases of eggs and egg products outside the state
of Kansas until discovery reveals which sales occurred within
Kansas. In reserving judgment, the court stated that only sales
within Kansas would be relevant to any calculation of alleged
damages. Discovery is ongoing in this case.
Allegations in Each Case
In all of the antitrust cases, the plaintiffs allege that the
Company and certain other large domestic egg producers conspired
to reduce the domestic supply of eggs in a concerted effort to
raise the price of eggs to artificially high levels. In each
case, the plaintiffs allege that all defendants agreed to reduce
the domestic supply of eggs by (a) manipulating egg exports and
(b) implementing industry-wide animal welfare guidelines that
reduced the number of hens and eggs.
Both groups of named plaintiffs in the putative class actions seek
treble damages and injunctive relief on behalf of themselves and
all other putative class members in the United States. Both
groups of named plaintiffs in the putative class actions allege a
class period starting on January 1, 2000, and running "through the
present." The direct purchaser putative class action case alleges
two separate sub-classes -- one for direct purchasers of shell
eggs and one for direct purchasers of egg products. The direct
purchaser putative class action case seeks relief under the
Sherman Act. The indirect purchaser putative class action case
seeks injunctive relief under the Sherman Act and damages under
the statutes and common-law of various states and the District of
Columbia.
Seven non-class cases remain pending. In five of the remaining
non-class cases, the plaintiffs seek damages and injunctive relief
under the Sherman Act. In one of the remaining non-class cases,
the plaintiff seeks damages and injunctive relief under the
Sherman Act and the Ohio antitrust act (known as the Valentine
Act). In the other remaining non-class case, the plaintiffs seek
damages and injunctive relief under the Kansas Restraint of Trade
Act.
The Pennsylvania court has entered a series of orders related to
case management, discovery, class certification, and scheduling.
The Pennsylvania court has not set a trial date for any of the
consolidated cases. The Kansas state court has entered a schedule
for discovery and dispositive motions. The Kansas state court
case is set for trial starting June 16, 2014.
Proposed Settlement of the Direct Purchaser
Putative Class Action
On July 23, 2013, the Company announced that it has reached an
agreement in principle to settle all direct purchaser class claims
against the Company in the direct purchaser putative class action.
Pursuant to the agreement in principle, which is subject to
finalization by the parties and court approval, the Company would
be obligated to pay $28 million to fully and finally resolve these
claims. The other terms and conditions of the proposed settlement
are not expected to have a material impact to the Company's
results of operations. The Company recorded a pre-tax charge in
the fourth quarter of fiscal 2013 of approximately $28 million,
which amounts to $17 million, $0.71 per basic share, after tax
with respect to the proposed settlement.
This settlement does not affect the indirect purchaser putative
class action and does not necessarily resolve the seven non-class
cases still pending. The Company intends to continue to defend
these cases as vigorously as possible based on defenses which the
Company believes are meritorious and provable. While management
believes that the likelihood of a material adverse outcome in the
overall egg antitrust litigation has been significantly reduced,
assuming the court approves the proposed settlement, there is
still a reasonable possibility of a material adverse outcome in
the remaining egg antitrust litigation. At the present time,
however, it is not possible to estimate the amount of monetary
exposure, if any, to the Company because of these cases.
Accordingly, adjustments, if any, which might result from the
resolution of these remaining legal matters, have not been
reflected in the financial statements.
Cal-Maine Foods, Inc. -- http://www.calmainefoods.com/-- is
engaged in the production, grading, packaging, marketing and
distribution of shell eggs. The Jackson, Mississippi-based Cal-
Maine sells most of its shell eggs in the southwestern,
southeastern, mid-western and mid-Atlantic regions of the U.S.
The Company markets its shell eggs through its extensive
distribution network to a diverse group of customers, including
national and regional grocery store chains, club stores,
foodservice distributors and egg product manufacturers.
COLE REAL ESTATE: Awaits Ruling on Bid to Dismiss Maryland Suit
---------------------------------------------------------------
Cole Real Estate Investments, Inc., is awaiting a court decision
on its motion to dismiss a consolidated merger-related lawsuit
pending in Maryland, according to the Company's August 5, 2013,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended June 30, 2013.
On March 5, 2013, Cole Real Estate Investments, Inc. (formerly
known as Cole Credit Property Trust III, Inc. ("CCPT III" or the
"Company"), Cole Holdings Corporation ("Holdings"), an Arizona
corporation that was originally wholly owned by Christopher H.
Cole, the current executive chairman of the Company's board of
directors, and the former chairman, chief executive officer and
president of the Company (the "Holdings Stockholder"),
CREInvestments, LLC, a Maryland limited liability company and a
wholly-owned subsidiary of the Company ("Merger Sub"), and the
Holdings Stockholder entered into an Agreement and Plan of Merger
(the "Merger Agreement"). The Merger Agreement provided for the
merger of Holdings with and into Merger Sub (the "Merger"), with
Merger Sub surviving and continuing its existence under the laws
of the state of Maryland as a wholly owned subsidiary of the
Company. The Merger Agreement, and the transactions contemplated
thereby, were approved by the Company's board of directors at the
recommendation of a special committee of the board of directors
comprised solely of independent directors. Effective April 5,
2013 (the "Merger Date"), the Company closed the Merger and
entered into a registration rights agreement and an escrow
agreement in connection with the completion of the Merger.
In connection with the Merger, between March 20, and April 30,
2013, three putative class action lawsuits were filed in the
Circuit Court for Baltimore City, Maryland, making various claims
alleging that the Merger injured the Company and its shareholders.
On April 30, 2013, the actions were consolidated by order of the
Court as one action called In Re Cole Credit Property Trust, III,
Inc. Derivative And Class Litigation. On May 8, 2013, the
plaintiffs filed a consolidated amended class action and
derivative complaint naming as defendants Holdings; Cole REIT
Advisors III, LLC ("CR III Advisors"); Merger Sub; Cole Capital
Advisors, Inc. ("CCA"); Cole Capital Corporation ("CCC"); Equity
Fund Advisors, Inc.; Cole Realty Advisors, Inc.; each of the
Company's directors; and the Company as a nominal defendant. The
consolidated amended complaint alleges a variety of claims against
some or all of the defendants including claims for breaches of
fiduciary duties and aiding abetting those breaches; unjust
enrichment; corporate waste; breaches of the Company's charter and
the advisory agreement with CR III Advisors; and disclosure
violations in connection with disclosures for the Company's 2013
annual meeting. The plaintiffs seek, among other relief, class
certification; various forms of injunctive relief; compensatory
damages; and restitution. On June 7, 2013, the defendants in the
consolidated action moved to dismiss the amended complaint for,
among other reasons, lack of standing and failure to state a claim
upon which relief can be granted. On July 15, 2013, the
plaintiffs opposed defendants' motion. The motion is pending.
The Company believes that these lawsuits are without merit, but
the ultimate outcome of these matters cannot be predicted. While
losses and legal expenses may be incurred, at this time it is
impossible to develop a range of reasonably possible potential
losses, and no provisions for losses have been recorded in the
accompanying condensed consolidated unaudited financial
statements.
Headquartered in Phoenix, Arizona, Cole Real Estate Investments,
Inc., formerly known as Cole Credit Property Trust III, Inc., is a
Maryland corporation that was formed on January 22, 2008, which
has elected to be taxed, and currently qualifies, as a real estate
investment trust for federal income tax purposes. Substantially
all of the Company's business under the (i) Real Estate Investment
segment is conducted through Cole REIT III Operating Partnership,
LP, a Delaware limited partnership, and (ii) Private Capital
Management segment is conducted through Cole Capital Advisors,
Inc., an Arizona corporation.
COLE REAL ESTATE: Awaits Rulings in Merger-Related Suits in Ariz.
-----------------------------------------------------------------
Cole Real Estate Investments, Inc., is awaiting court decisions in
merger-related lawsuits pending in Arizona, according to the
Company's August 5, 2013, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2013.
On March 5, 2013, Cole Real Estate Investments, Inc. (formerly
known as Cole Credit Property Trust III, Inc. ("CCPT III" or the
"Company"), Cole Holdings Corporation ("Holdings"), an Arizona
corporation that was originally wholly owned by Christopher H.
Cole, the current executive chairman of the Company's board of
directors, and the former chairman, chief executive officer and
president of the Company (the "Holdings Stockholder"),
CREInvestments, LLC, a Maryland limited liability company and a
wholly-owned subsidiary of the Company ("Merger Sub"), and the
Holdings Stockholder entered into an Agreement and Plan of Merger
(the "Merger Agreement"). The Merger Agreement provided for the
merger of Holdings with and into Merger Sub (the "Merger"), with
Merger Sub surviving and continuing its existence under the laws
of the state of Maryland as a wholly owned subsidiary of the
Company. The Merger Agreement, and the transactions contemplated
thereby, were approved by the Company's board of directors at the
recommendation of a special committee of the board of directors
comprised solely of independent directors. Effective April 5,
2013 (the "Merger Date"), the Company closed the Merger and
entered into a registration rights agreement and an escrow
agreement in connection with the completion of the Merger.
On March 27, 2013, a putative derivative action was filed in the
U.S. District Court, Arizona District, captioned Carter v. Cole
Holdings, et al. ("Carter") making various claims alleging that
the Merger injured the Company and its shareholders. On May 13,
2013, Carter amended the complaint naming as defendants Holdings;
Cole REIT Advisors III, LLC ("CR III Advisors"); Merger Sub; each
of the Company's directors, and the Company as nominal defendant.
The amended complaint alleges a variety of claims against some or
all of the defendants including claims for breaches of fiduciary
duty and aiding and abetting those breaches; breaches of the
Company's charter and the advisory agreement with CR III Advisors;
breach of the implied covenant of good faith; abuse of control;
corporate waste; unjust enrichment; and, in connection with
disclosures for the Company's 2013 annual meeting, violations of
Sections 14 and 20 of the Securities Exchange Act of 1934. Carter
seeks, among other relief, a declaratory judgment; various forms
of injunctive relief; compensatory damages; and restitution.
On April 8, 2013, a putative class action and derivative action
was filed in the U.S. District Court, Arizona District, captioned
Schindler v. Cole Holdings Corporation, et al. ("Schindler")
making various claims alleging that the Merger injured the Company
and its shareholders. On June 7, 2013, Schindler amended the
complaint naming as defendants Holdings; CR III Advisors; Merger
Sub; the Company's directors; and the Company as nominal
defendant. The amended complaint alleges a variety of claims
against some or all of the defendants including claims for
breaches of fiduciary duty and aiding and abetting those breaches;
unjust enrichment; corporate waste; and, in connection with
disclosures for the Company's 2013 annual meeting, violations of
Sections 14 and 20 of the Securities Exchange Act of 1934.
Schindler seeks, among other relief, class certification; various
forms of injunctive relief; compensatory damages; and restitution.
On June 3, 2013, the defendants moved to consolidate the Carter
and Schindler actions pursuant to Federal Rule of Civil Procedure
42(a). Plaintiff in the Carter action responded on June 7, 2013,
supporting consolidation of the Carter and Schindler actions for
pretrial purposes, but opposing consolidation for all other
purposes. The Plaintiff in the Schindler action responded on
June 20, 2013, agreeing that the Carter and Schindler actions
should be consolidated. That motion is pending. The parties in
the Carter action have entered into stipulations agreeing that
once the court rules on the motion to consolidate, the parties
shall confer about an agreed upon deadline for defendants to
answer or otherwise respond to plaintiff's amended complaint,
which in any case shall not be sooner than fifteen days from the
court's order. The parties in the Schindler action have entered
into a stipulation agreeing that, unless and until the court in
the Carter action denies the motion to consolidate, defendants
shall answer or otherwise respond to the amended complaint within
fifteen days of the court's order.
On June 25, 2013, plaintiff in the Schindler action filed a motion
for appointment as lead plaintiff and for approval of lead
plaintiff's selection of lead counsel. On July 8, 2013, the
plaintiff in the Carter action filed a motion for appointment of
lead plaintiff and lead and liaison counsel for purposes of
prosecuting derivative claims on behalf of the Company. The
motions for lead plaintiff in both the Carter and Schindler
actions are pending.
The Company believes that these lawsuits are without merit, but
the ultimate outcome of these matters cannot be predicted. While
losses and legal expenses may be incurred, at this time it is
impossible to develop a range of reasonably possible potential
losses, and no provisions for losses have been recorded in the
accompanying condensed consolidated unaudited financial
statements.
Headquartered in Phoenix, Arizona, Cole Real Estate Investments,
Inc., formerly known as Cole Credit Property Trust III, Inc., is a
Maryland corporation that was formed on January 22, 2008, which
has elected to be taxed, and currently qualifies, as a real estate
investment trust for federal income tax purposes. Substantially
all of the Company's business under the (i) Real Estate Investment
segment is conducted through Cole REIT III Operating Partnership,
LP, a Delaware limited partnership, and (ii) Private Capital
Management segment is conducted through Cole Capital Advisors,
Inc., an Arizona corporation.
DOW CHEMICAL: Faces Suit Over Asbestos Use at Plaquemine Plant
--------------------------------------------------------------
Nathan Alexander, writing for GDP Insider, reports that a lawsuit
had been filed in the State Court in Louisiana, against The Dow
Chemical Company relating to asbestos-use at its plants. A
Plaquemine, Louisiana jury has now found that the company is
liable on all the courts. The allegation was that asbestos use
was causing cancer in workers at the unit. The Dow Plaquemine
Plant is the biggest chemical-plant in the petrochemical industry-
rich state.
It had been alleged that the exposure to asbestos at the company
was the reason for terminal cancer in Sidney Mabile. In the
lawsuit, Mr. Mabile's attorneys had alleged that by using asbestos
at the plant, the company has exposed thousands of its workers to
the hazards of asbestos. The lawsuit said that Mr. Mabile is just
one of the potential asbestos-cancer victims who have been exposed
at DOW. The famed law-firm, Baron and Budd which has a lengthy
history of representing cities, states, and individual
occupational and environmental cancer victims, had represented
Mr. Mabile.
Rampant Asbestos Use at Plants
The court documents revealed that the company continued its use if
literally tons of raw-asbestos in its chemical-manufacturing units
across the world. Most companies have discontinued the use of
asbestos, decades ago. However, the company continues to use this
proven carcinogen in all its plants. This is primarily because
its processing is almost 10-times cheaper with asbestos than it is
with other asbestos-free alternatives. Some internal DOW documents
indicate that the company had actually lobbied to oppose the
asbestos ban that has been put forth by the Environmental
protection Agency.
Fighting Against the Ban
It had fought the ban successfully and continues using it in the
U.S plants. Court documentation suggests that the company had
performed one "cost per cancer" analysis and decided that it would
cost the company more than $1.2B to transition al its chemical
plants to processing methods that did not use asbestos. The
company has continued its fight against the asbestos ban in other
countries
DRINK LLC: Employees Win Suit Over Use of Tip to Pay Shortages
--------------------------------------------------------------
Abby Simons, writing for Star Tribune, reports that the rules were
clear when Thomas Rupp began bartending at the popular Minneapolis
party bar Drink as a college student in 2007.
If the cash register was short for any reason -- for instance, if
a customer walked out on a tab or forgot to sign a credit card
receipt -- you were responsible.
"It didn't seem right," Mr. Rupp said. "But who were we to
question the bosses who said we had to pay in?"
Mr. Rupp, 31, and more than 750 Drink and Spin nightclub employees
who challenged their companies' tactics won a major victory on
Aug. 14 when the Minnesota Supreme Court ruled that they were
entitled to damages for being forced to use their tip money to
make up cash shortages. Their award could surpass six figures,
according to Steven Andrew Smith, an attorney representing the
plaintiffs in the class-action lawsuit, and the decision sets a
precedent for Minnesota labor law.
"This ruling deals with a practice that is sort of the dirty
little secret of Twin Cities bars and restaurants -- where if the
till's short, you've gotta pay if you want to keep your job,"
Smith said. "It sends the message that you can't do that."
The decision means the lawsuit will return to Hennepin County
District Court to calculate damages for the servers, bartenders
and security guards who first brought their claim against Uptown
Drink LLC and related companies in 2010.
The suit alleged that there had been multiple violations of the
Minnesota Fair Labor Standards Act, including that employees were
required to pay for register shortages and the bills of customers
who walked out without paying or who did not sign credit card
receipts.
Employees testified at trial that failing to make the payments
could get them fired. Drink countered that employees voluntarily
paid the shortages rather than be written up for failing to
properly handle cash.
Establishments Now Closed
Messages left for Drink LLC attorney Ashwin Madia were not
returned. Both Drink locations, in Uptown and downtown
Minneapolis, have since been shuttered, as has Spin nightclub.
Uptown Drink filed for Chapter 11 bankruptcy, but has since
reopened as Uptown Tavern. Owner Mike Whitelaw could not be
reached for comment. The bar was also ordered to pay $700,000 in
attorneys' fees and costs as part of the initial lawsuit.
However, the bankruptcy has placed any payout on hold.
Although it awarded $70,000 in damages to the plaintiffs and the
state of Minnesota, a jury rejected the staffers' claims that
their rights were violated by forcing to pay for shortages. A
district judge and Court of Appeals agreed, ruling in part that
the employees failed to prove that paying for shortages made their
wages fall below the state's minimum.
However, in its unanimous ruling, the Supreme Court said that tips
are counted as wages, regardless of whether they fall above or
below the minimum wage.
"A gratuity is paid to an employee for performing a service for an
employer, such as serving food and drinks to the employers'
patrons. Gratuities also fall under the definition of 'wages'
even though the money is paid by 'another person,'" Chief Justice
Lorie Gildea wrote.
The law's definition prevents employers from using "self help" to
enforce a claimed indebtedness against an employee, she continued,
such as in the Drink case.
"There is no dispute in this case that the employees were required
to pay the employers back for register shortages, walkouts and
unsigned credit-card receipts," Ms. Gildea wrote. "Under the
plain language of [the law], these deductions from the employees'
wages were unlawful."
Money 'Rightfully Earned'
Mr. Rupp, who now works in government finance, couldn't say how
much money he lost and could possibly recoup. However, he said
the ruling is about more than just money.
"It's a great victory for bartenders and servers who don't have to
be afraid and be bullied by their bosses," he said. "This is
their money that they rightfully earned, and it should be up to
the business to account for these losses through better
management."
FRANKLIN FINANCIAL: Bank Participates in Suit vs. PLMBS Servicer
----------------------------------------------------------------
Franklin Financial Services Corporation's subsidiary is
participating in a class-action lawsuit against a private-label
mortgage backed securities servicer, according to the Company's
August 5, 2013, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2013.
The Company's wholly-owned subsidiary, Farmers and Merchants Trust
Company of Chambersburg (the Bank), is currently participating in
a class-action lawsuit against one private-label mortgage backed
securities (PLMBS) servicer that centers on defective warranties
and representations made as part of the underwriting process.
Headquartered in Chambersburg, Pennsylvania, Franklin Financial
Services Corporation -- http://www.franklinfin.com/-- is the bank
holding company for Farmers and Merchants Trust Company of
Chambersburg. The Bank, which was founded in 1906, provides
commercial and retail banking, and trust services to businesses,
individuals, and governmental entities in Pennsylvania. The Bank
also offers various deposit products, including checking, savings,
and time deposit accounts.
FRISCH'S RESTAURANTS: Parties Briefing in Employee Suit Appeal
--------------------------------------------------------------
Parties are now briefing on the merits in connection with an
appeal from the dismissal of an employee class action lawsuit,
according to Frisch's Restaurants, Inc.'s August 5, 2013, Form
10-K filing with the U.S. Securities and Exchange Commission for
the year ended May 28, 2013.
On September 18, 2012, a former employee filed a collective action
under the Fair Labor Standards Act and class action under the Ohio
Minimum Fair Wage Standards Act. The complaint includes
allegations of off-the-clock work, unpaid overtime, and minimum
wage violations as a result of alleged improper application of the
Tip Credit. As part of the collective action, the plaintiff
sought recovery for all individuals who worked as a server at any
Frisch's Big Boy restaurant operated by the Company during the
three year period, September 18, 2009, through September 18, 2012.
The class action is limited to servers who worked for the Company
at Frisch's Big Boy restaurants located in Ohio during the same
three year period.
Both the collective action and the class action were styled
together as Case No. 2:12-cv-00858-GLF-EPD, which was filed in the
United States District Court, Southern District of Ohio, Eastern
Division, and which was served on October 25, 2012. On
December 4, 2012, the Company filed a motion to dismiss and compel
arbitration, which motion was granted on April 10, 2013. The
Plaintiff appealed to the United States 6th Circuit Court of
Appeals. The parties are now briefing on the merits, and it is
unknown whether or not oral arguments will be directed.
The Company intends to continue defending the matter vigorously,
including the appeal and any efforts to pursue a class or
collective action in arbitration.
Cincinnati, Ohio-based Frisch's Restaurants, Inc., is a regional
company that operates full service family-style restaurants under
the name "Frisch's Big Boy." All 95 Frisch's Big Boy restaurants
operated by the Company as of March 5, 2013, are located in
various regions of Ohio, Kentucky and Indiana.
GENTIVA HEALTH: Denied Summary Judgment for FLSA Liability
----------------------------------------------------------
The United States District Court for the Northern District of
Georgia denied the motion of Gentiva Health Services, Inc. for
summary judgment with regard to the Company's liability for
Plaintiffs' Fair Labor Standards Act claims and granted
Plaintiffs' motion for summary judgment, according to the
company's Aug. 2, 2013, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended June 30, 2013.
On May 10, 2010, a collective and class action complaint entitled
Lisa Rindfleisch et al. v. Gentiva Health Services, Inc. was filed
in the United States District Court for the Eastern District of
New York against the Company in which five former employees
("Plaintiffs") alleged wage and hour law violations.
The former employees claimed they were paid pursuant to "an
unlawful hybrid" compensation plan that paid them on both a per
visit and an hourly basis, thereby voiding their exempt status and
entitling them to overtime pay. Plaintiffs alleged continuing
violations of federal and state law and sought damages under the
Fair Labor Standards Act ("FLSA"), as well as under the New York
Labor Law and North Carolina Wage and Hour Act ("NCWHA").
On October 8, 2010, the Court granted the Company's motion to
transfer the venue of the lawsuit to the United States District
Court for the Northern District of Georgia. On April 13, 2011, the
Court granted Plaintiffs' motion for conditional certification of
the FLSA claims as a collective action. On May 26, 2011, the Court
bifurcated the FLSA portion of the suit into a liability phase, in
which discovery closed on January 15, 2013, and a potential
damages phase, to be scheduled pending outcome of the liability
phase.
Following a motion for partial summary judgment by the Company
regarding the New York state law claims, Plaintiffs agreed
voluntarily to dismiss those claims in a filing on December 12,
2011. Plaintiffs filed a motion for certification of a North
Carolina state law class for NCWHA claims on January 20, 2012. On
August 29, 2012, the Court denied Plaintiffs' motion for
certification of a North Carolina state law class.
The Company filed a motion for partial summary judgment on
Plaintiffs' claims under the NCWHA on March 22, 2012, which the
Court granted on January 16, 2013. On February 14, 2013, the
Company filed two motions for partial summary judgment with regard
to the Company's liability for Plaintiffs' FLSA claims. On the
same day, Plaintiffs filed a motion for partial summary judgment
in their favor with regard to the Company's liability.
On July 26, 2013, the Court denied the Company's motion for
summary judgment with regard to the Company's liability for
Plaintiffs' FLSA claims and granted Plaintiffs' motion for summary
judgment. The Court further ordered the parties to submit a joint
preliminary planning report and discovery plan regarding the
damages phase of the lawsuit by August 26, 2013.
While the parties prepare to litigate the damages phase of the
lawsuit and potential decertification of the collective action,
the case remains conditionally certified with a class of
approximately 1,000 allegedly similar employees seeking attorneys'
fees, back wages and liquidated damages going back three years
under the FLSA.
Based on the information the Company has at this time in the
Rindfleisch lawsuit, the Company is unable to assess the probable
outcome or potential liability, if any, arising from this
proceeding on the business, financial condition, results of
operations, liquidity or capital resources of the Company. The
Company does not believe that an estimate of a reasonably possible
loss or range of loss can be made for this lawsuit at this time.
The Company intends to defend itself vigorously in this lawsuit.
GENTIVA HEALTH: March 2014 Status Conference Set in Labor Suit
--------------------------------------------------------------
The United States District Court for the Eastern District of
California court set a March 3, 2014 status conference for a labor
suit filed against Gentiva Health Services, Inc. in the event that
the case has not been dismissed as a result of a final settlement
distribution, according to the company's Aug. 2, 2013, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended June 30, 2013.
On June 11, 2010, a collective and class action complaint entitled
Catherine Wilkie, individually and on behalf of all others
similarly situated v. Gentiva Health Services, Inc. was filed in
the United States District Court for the Eastern District of
California against the Company in which a former employee alleged
wage and hour violations under the FLSA and California law.
The complaint alleged that the Company paid some of its employees
on both a per visit and hourly basis, thereby voiding their exempt
status and entitling them to overtime pay. The complaint further
alleged that California employees were subject to violations of
state laws requiring meal and rest breaks, overtime pay, accurate
wage statements and timely payment of wages. The plaintiff sought
class certification, attorneys' fees, back wages, penalties and
damages going back three years on the FLSA claim and four years on
the state wage and hour claims.
The parties held mediation discussions on August 3, 2011 and March
7, 2012. The parties reached a monetary settlement of $5 million,
which the Company has paid in full, and the court granted final
approval of the settlement on March 25, 2013. Once the parties
provide the court with a final accounting regarding distribution
of the settlement funds, the case should be dismissed. The court
set a status conference for March 3, 2014 in the event that the
case has not been dismissed by then.
GENTIVA HEALTH: Awaits Ruling on Motion to Dismiss Stock Suit
-------------------------------------------------------------
A motion filed by Gentiva Health Services, Inc. to dismiss In re
Gentiva Securities Litigation, Civil Action No. 10-CV-5064 is
currently pending in the United States District Court for the
Eastern District of New York, according to the company's Aug. 2,
2013, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended June 30, 2013.
Between November 2, 2010 and October 25, 2011, five shareholder
class actions were filed against Gentiva and certain of its
current and former officers and directors in the United States
District Court for the Eastern District of New York. Each of these
actions asserted claims under Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934 in connection with the Company's
participation in the Medicare Home Health Prospective Payment
System ("HH PPS").
Following consolidation of the actions, and the appointment of Los
Angeles City Employees' Retirement System as lead plaintiff and
Kaplan Fox & Kilsheimer LLP as lead counsel, on April 16, 2012, a
consolidated shareholder class action complaint, captioned In re
Gentiva Securities Litigation, Civil Action No. 10-CV-5064, was
filed in the United States District Court for the Eastern District
of New York.
The complaint, which named Gentiva and certain current and former
officers and directors as defendants, asserted claims under
Sections 10(b) and 20(a) of the Securities Exchange Act of 1934,
as well as Sections 11 and 15 of the Securities Act of 1933, in
connection with the Company's participation in the HH PPS.
The complaint alleged, among other things, that the Company's
public disclosures misrepresented and failed to disclose that the
Company improperly increased the number of in-home therapy visits
to patients for the purposes of triggering higher reimbursement
rates under the HH PPS, which caused an artificial inflation in
the price of Gentiva's common stock during the period between July
31, 2008 and October 4, 2011. On June 15, 2012, defendants filed a
motion to dismiss the complaint.
On March 25, 2013, the court granted defendants' motion to dismiss
with leave to amend the complaint in accordance with the court's
rulings as set forth in its March 25 order. On May 10, 2013, lead
plaintiff filed a consolidated amended class action complaint,
and, on June 24, 2013, defendants filed a motion to dismiss, which
is currently pending.
Given the preliminary stage of the action, the Company is unable
to assess the probable outcome or potential liability, if any,
arising from the action on the business, financial condition,
results of operations, liquidity or capital resources of the
Company. The Company does not believe that an estimate of a
reasonably possible loss or range of loss can be made for the
action at this time. The defendants intend to defend themselves
vigorously in the action.
HSBC FINANCE: Actions Over Debt Cancellation Remain Pending
-----------------------------------------------------------
Litigations challenging marketing practices relating to debt
cancellation or suspension products remain pending, according to
HSBC Finance Corporation's August 5, 2013, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
June 30, 2013.
Between July 2010 and May 2011, eight substantially similar
putative class actions were filed against the Company's
subsidiaries, HSBC Bank Nevada, N.A. ("HSBC Bank Nevada") and HSBC
Card Services Inc.: Rizera et al v. HSBC Bank Nevada et al.
(D.N.J. No. 10-CV-03375); Esslinger et al v. HSBC Bank Nevada,
N.A. et al. (E.D. Pa. No. 10-CV-03213); McAlister et al. v. HSBC
Bank Nevada, N.A. et al. (W.D. Wash. No. 10-CV-05831); Mitchell v.
HSBC Bank Nevada, N.A. et al. (D. Md. No. 10-CV-03232); Samuels v.
HSBC Bank Nevada, N.A. et al. (N.D. III. No. 11-CV-00548);
McKinney v. HSBC Card Services et al. (S.D. III. No. 10-CV-00786);
Chastain v. HSBC Bank Nevada, N.A. (South Carolina Court of Common
Pleas, 13th Circuit) (filed as a counterclaim to a pending
collections action); Colton et al. v. HSBC Bank Nevada, N.A. et
al. (C.D. Ca. No. 11-CV-03742). These actions principally allege
that cardholders were enrolled in debt cancellation or suspension
products and challenge various marketing or administrative
practices relating to those products. The plaintiffs' claims
include breach of contract and the implied covenant of good faith
and fair dealing, unconscionability, unjust enrichment, and
violations of state consumer protection and deceptive acts and
practices statutes. The Mitchell action was withdrawn by the
plaintiff in March 2011. In July 2011, the parties in Rizera,
Esslinger, McAlister, Samuels, McKinney and Colton executed a
memorandum of settlement and subsequently submitted the formal
settlement on a consolidated basis for approval by the United
States District Court for the Eastern District of Pennsylvania in
the Esslinger matter. In February 2012, the District Court
granted preliminary approval of the settlement. The plaintiff in
Chastain appealed the District Court's preliminary approval order.
The appellate court dismissed that appeal.
On October 1, 2012, the District Court held a hearing for final
approval of the settlement in the Esslinger matter. Several
objectors to the settlement appeared at the hearing, including
representatives for the Attorneys General in West Virginia, Hawaii
and Mississippi, where they asserted that claims brought in those
Attorneys General's lawsuits should not be covered by the release
in the Esslinger matter. In November 2012, the District Court
entered a final approval order confirming the settlement. In its
accompanying memorandum, the District Court noted that claims
belonging solely to the states are not impacted by the settlement,
but that claims brought by the Attorneys General seeking recovery
for class members are precluded by the Esslinger settlement.
Chastain and two other class members filed notices of appeal of
the final approval order. Two of the three appeals were dismissed
on motion including Chastain. The third appeal was voluntarily
dismissed. The Esslinger settlement became effective on May 1,
2013, and distributions to class members were scheduled to be
completed on or before August 29, 2013.
Attorney Generals' Class Suits
In October 2011, the Attorney General for the State of West
Virginia filed a purported class action in the Circuit Court of
Mason County, West Virginia, captioned State of West Virginia ex
rel. Darrell V. McGraw, Jr. et al v. HSBC Bank Nevada, N.A. et al.
(No. 11-C-93-N), alleging similar claims in connection with the
marketing, selling and administering of ancillary services,
including debt cancellation and suspension products to consumers
in West Virginia. In September 2012, the Attorney General filed
an amended complaint adding the Company's affiliate, HSBC Bank
USA, N.A, as a defendant. In addition to damages, the Attorney
General is seeking civil money penalties and injunctive relief.
The action was initially removed to Federal court. The Attorney
General's motion to remand to State court was granted and the
Company filed a motion to dismiss the complaint in March 2012.
The motion to dismiss was denied and discovery is ongoing. In
late 2011, the Company received an information request regarding
the same products from another state's Attorney General, although
no action has yet been filed in that state.
In April 2012, the Attorney General for the State of Hawaii filed
lawsuits against seven major credit card companies, including
certain of the Company's subsidiaries, in the Circuit Court of the
First Circuit for the State of Hawaii, captioned State of Hawaii
ex rel David Louie, Attorney General v. HSBC Bank Nevada N.A. and
HSBC Card Services, Inc., et al. (No. 12-1-0983-04), alleging
claims that are substantially the same as those asserted in the
Esslinger and related matters, in connection with the marketing,
selling and administering of ancillary services, including debt
cancellation and suspension products to consumers in Hawaii. The
relief sought includes an injunction against deceptive and unfair
practices, restitution and disgorgement of profits, and civil
monetary penalties. The action was removed to Federal court in
May 2012. In June 2012, the Attorney General filed a motion to
remand, which was subsequently denied. The Attorney General then
withdrew its pending motion to consolidate the actions and
appealed the decision to the Ninth Circuit. The Company's answer
to the Attorney General's brief was due August 9, 2013.
In June 2012, the Attorney General for the State of Mississippi
filed complaints against six credit card companies, including the
Company's subsidiaries HSBC Bank Nevada and HSBC Card Services
Inc. and the Company's affiliate HSBC Bank USA, N.A. In an action
captioned Jim Hood, Attorney General of the State of Mississippi,
ex. rel. The State of Mississippi v. HSBC Bank Nevada, N.A., HSBC
Card Services, Inc., and HSBC Bank USA, N.A., the Attorney General
alleges claims that are substantially the same as those asserted
in the Esslinger and related matters, in connection with the
marketing, selling and administering of ancillary services,
including debt cancellation and suspension products to consumers
in Mississippi. The relief sought includes injunction against
deceptive and unfair practices, disgorgement of profits, and civil
money penalties. In August 2012, this action was removed to
Federal court and the Attorney General filed a motion to remand.
Briefing on the Attorney General's motion to remand has been
completed and the motion remains pending.
In April 2013, the Attorney General for the State of New Mexico
also filed a lawsuit against nine credit card companies, including
the Company's subsidiaries HSBC Bank Nevada and HSBC Card Services
Inc. and the Company's affiliate HSBC Bank USA, N.A. In the
action, captioned State of New Mexico ex rel Gary King, Attorney
General, v. HSBC Bank Nevada, N.A., HSBC Card Services, Inc., and
HSBC Bank USA, N.A., the Attorney General alleges substantially
similar claims as those alleged by the Attorneys General of West
Virginia, Mississippi and Hawaii in connection with debt
cancellation and suspension and other ancillary products marketed,
administered and sold in connection with credit cards. The
Attorney General seeks an injunction, restitution and civil money
penalties, among other relief. The action was removed to Federal
court in June 2013. A responsive pleading was due August 7, 2013.
HSBC Finance Corporation -- http://www.us.hsbc.com/-- is a
Delaware corporation headquartered in Mettawa, Illinois. HSBC
Finance, which traces its origin to 1878, operated as a consumer
finance company under the name Household Finance Corporation for
most of its history. The Company's principal business is to act
as a holding company for its subsidiaries.
HSBC FINANCE: Briefing in "Jaffe" Suit to End in Mid-September
--------------------------------------------------------------
Briefing on post-verdict motions in the securities class action
lawsuit against a predecessor of HSBC Finance Corporation is
scheduled to be completed by mid-September of 2013, according to
the Company's August 5, 2013, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2013.
As a result of an August 2002 restatement of previously reported
consolidated financial statements and other corporate events,
including the 2002 settlement with 46 states and the District of
Columbia relating to real estate lending practices, Household
International Inc. and certain former officers were named as
defendants in a class action lawsuit, Jaffe v. Household
International, Inc., et al. (N.D. Ill. No. 02 C5893), filed
August 19, 2002. The complaint asserted claims under Section 10
and Section 20 of the Securities Exchange Act of 1934. Ultimately,
a class was certified on behalf of all persons who acquired and
disposed of Household International common stock between July 30,
1999, and October 11, 2002. The claims alleged that the
defendants knowingly or recklessly made false and misleading
statements of material fact relating to Household's Consumer
Lending operations, including collections, sales and lending
practices, some of which ultimately led to the 2002 state
settlement agreement, and facts relating to accounting practices
evidenced by the restatement. A jury trial concluded in April
2009, which was decided partly in favor of the plaintiffs.
Following post-trial briefing, the District Court ruled that
various legal challenges to the verdict, including as to loss
causation and other matters, would not be considered until after a
second phase of the proceedings addressing issues of reliance and
the submission of claims by class members had been completed. The
District Court ruled in November 2010 that claim forms should be
mailed to class members, to ascertain which class members may have
claims for damages arising from reliance on the misleading
statements found by the jury. The District Court also set out a
method for calculating damages for class members who filed claims.
As previously reported, lead plaintiffs, in court filings in March
2010, estimated that damages could range 'somewhere between $2.4
billion to $3.2 billion to class members', before pre-judgment
interest.
In December 2011, the report of the Court-appointed claims
administrator to the District Court stated that the total number
of claims that generated an allowed loss was 45,921, and that the
aggregate amount of these claims was approximately $2.2 billion.
The Defendants filed legal challenges asserting that the
presumption of reliance was defeated as to the class and raising
various objections with respect to compliance with the claims form
requirements as to certain claims.
In September 2012, the District Court rejected defendants'
arguments that the presumption of reliance generally had been
defeated either as to the class or as to particular institutional
claimants. In addition, the District Court has made various
rulings with respect to the validity of specific categories of
claims, and held certain categories of claims valid, certain
categories of claims invalid, and directed further proceedings
before a court-appointed Special Master to address objections
regarding certain other claim submission issues. In light of
those rulings, various agreements of the parties and certain
rulings by the Special Master, currently there is approximately
$1.5 billion in claims as to which there remain no unresolved
objections relating to the claims form submissions.
In addition, approximately $510 million in claims remain to be
addressed before the Special Master with respect to various claims
form objections, with a small portion of those potentially subject
to further trial proceedings. In addition, approximately $179
million in claims are subject to supplemental notices that are to
be returned by claimants by June 30, 2013, and that may also be
subject to further objections. Therefore, based upon proceedings
to date, the current range of a possible final judgment, prior to
imposition of prejudgment interest (if any), is between
approximately $1.5 billion and $2.2 billion. The District Court
may wait for a resolution of all disputes as to all claims before
entering final judgment, or the District Court may enter a partial
judgment on fewer than all claims pending resolution of disputes
as to the remaining claims. The District Court has set a schedule
for filing post-verdict motions challenging the verdict and also
for plaintiffs to file motions seeking pre-judgment interest and
entry of a partial judgment, with briefing on those motions
scheduled to be complete by mid-September of 2013.
The Company says the timing and outcome of the ultimate resolution
of this matter is uncertain. When a final judgment, partial or
otherwise, is entered by the District Court, the parties have 30
days in which to appeal the verdict to the Seventh Circuit Court
of Appeals. Despite the jury verdict and the various rulings of
the District Court, the Company continues to believe that it has
meritorious grounds for appeal of one or more of the rulings in
the case and intends to appeal the District Court's final
judgment, partial or otherwise.
Upon final judgment, partial or otherwise, the Company will be
required to provide security for the judgment in order to suspend
execution of the judgment while the appeal is ongoing by either
depositing cash in an interest-bearing escrow account or posting
an appeal bond in the amount of the judgment (including any pre-
judgment interest awarded). Given the complexity and
uncertainties associated with the actual determination of damages,
including the outcome of any appeals, there is a wide range of
possible damages. The Company believes it has meritorious grounds
for appeal on matters of both liability and damages, and will
argue on appeal that damages should be zero or a relatively
insignificant amount. If the Appeals Court rejects or only
partially accepts the Company's arguments, the amount of damages,
based upon the claims submitted and the potential application of
pre-judgment interest (calculated based upon a one-year treasury
constant rate compounded annually), may lie in a range from a
relatively insignificant amount to somewhere in the region of $2.7
billion. Should plaintiffs' successfully cross-appeal certain
issues related to the validity of specific claims or should a
different pre-judgment interest rate be applied, it is reasonably
possible that future losses related to this matter could be up to
or exceed $3.5 billion. The Company continues to maintain a
reserve for this matter in an amount that represents management's
current estimate of probable losses.
HSBC Finance Corporation -- http://www.us.hsbc.com/-- is a
Delaware corporation headquartered in Mettawa, Illinois. HSBC
Finance, which traces its origin to 1878, operated as a consumer
finance company under the name Household Finance Corporation for
most of its history. The Company's principal business is to act
as a holding company for its subsidiaries.
HSBC FINANCE: Continues to Defend Lender-Placed Insurance Suits
---------------------------------------------------------------
HSBC Finance Corporation continues to defend its subsidiaries
against class action lawsuits relating to lender-placed insurance,
according to the Company's August 5, 2013, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
June 30, 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 the Company's affiliates, HSBC
Insurance (USA) Inc. and HSBC Mortgage Services 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. The Company has and 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 Services Inc. seeking information
about lender-placed insurance activities. The Company is
providing documentation and information responsive to the
Massachusetts Attorney General and will continue to do so.
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 one or more of the
Company's 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); 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. HSBC filed motions to
dismiss the complaints in the Montanez, Lopez, Weller and Hoover
matters. The Court denied the motion to dismiss in the Lopez
matter and the Company awaits the court's ruling on the other
motions. In addition, in Montanez, the plaintiffs filed a motion
for multi-district litigation treatment to consolidate the action
with Lopez. In West, discovery is ongoing.
HSBC Finance Corporation -- http://www.us.hsbc.com/-- is a
Delaware corporation headquartered in Mettawa, Illinois. HSBC
Finance, which traces its origin to 1878, operated as a consumer
finance company under the name Household Finance Corporation for
most of its history. The Company's principal business is to act
as a holding company for its subsidiaries.
HSBC FINANCE: Final Hearing on MDL 1720 Settlement on Sept. 12
--------------------------------------------------------------
A hearing on final approval of the class settlement in MDL 1720 is
scheduled for September 12, 2013, according to HSBC Finance
Corporation's August 5, 2013, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2013.
Since June 2005, HSBC Bank USA, N.A., HSBC Finance Corporation,
HSBC North America Holdings Inc. ("HSBC North America"), and HSBC
Holdings plc, 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 lawsuits 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 Finance Corporation, 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 Finance Corporation and the Company's
affiliates, may incur, jointly and/or severally, in the event of
an adverse judgment or global settlement of one or all of these
actions. A class settlement was preliminarily approved by the
District Court 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
has 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 has deposited its portion of
that settlement amount into an escrow account.
Numerous merchants -- including absent class member large and
small merchants and certain named plaintiff merchants and trade
associations -- have objected and/or opted out of the settlement
during the exclusion period, which ended on May 28, 2013. The
defendants had the right to terminate the settlement agreement
because the volume threshold was reached, but elected not to do
so. The Company anticipates that most of the larger merchants who
opted out of the settlement will initiate separate actions seeking
to recover damages. A hearing on class plaintiffs' motion for
final approval of the class settlement is scheduled for
September 12, 2013, before the District Court.
HSBC Finance Corporation -- http://www.us.hsbc.com/-- is a
Delaware corporation headquartered in Mettawa, Illinois. HSBC
Finance, which traces its origin to 1878, operated as a consumer
finance company under the name Household Finance Corporation for
most of its history. The Company's principal business is to act
as a holding company for its subsidiaries.
HSBC FINANCE: Parties in TCPA Violations Suit Still in Discovery
----------------------------------------------------------------
HSBC Finance Corporation disclosed in its August 5, 2013, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended June 30, 2013, that parties in the class action
lawsuits alleging violations of the Telephone Consumer Protection
Act are currently engaged in discovery.
Between May 2012 and January 2013, two substantially similar
putative class actions were filed against various HSBC U.S.
entities, including actions against the Company or one or more of
its subsidiaries. These two actions have been consolidated into a
single action entitled: Mills & Wilkes v. HSBC Bank Nevada, N.A.,
HSBC Card Services, Inc., HSBC Mortgage Services, Inc. HSBC Auto
Finance, Inc. & HSBC Consumer Lending (USA), Inc., Case No.: 12-
cv-04010-MEJ (N.D. Cal.). A number of individual actions also
have been filed. The plaintiffs in these actions allege that the
HSBC defendants contacted them, or the members of the class they
seek to represent, on their cellular telephones using an automatic
telephone dialing system and/or an artificial or prerecorded
voice, without their express consent, in violation of the
Telephone Consumer Protection Act, 47 U.S.C. Section 227 et seq.
("TCPA"). The Plaintiffs seek statutory damages for alleged
negligent and willful violations of the TCPA, attorneys' fees,
costs and injunctive relief. The TCPA provides for statutory
damages of $500 for each violation ($1,500 for willful violations)
although similar cases filed against other financial institutions
have been resolved for amounts significantly less than these
statutory damage amounts. The parties currently are engaged in
discovery in Mills. The other actions are in various stages of
proceedings.
HSBC Finance Corporation -- http://www.us.hsbc.com/-- is a
Delaware corporation headquartered in Mettawa, Illinois. HSBC
Finance, which traces its origin to 1878, operated as a consumer
finance company under the name Household Finance Corporation for
most of its history. The Company's principal business is to act
as a holding company for its subsidiaries.
JOHNSON & JOHNSON: New Tylenol Caps to Bear Risk Warnings
---------------------------------------------------------
Matthew Perrone, writing for The Associated Press, reports that
bottles of Tylenol sold in the U.S. will soon bear red warnings
alerting users to the potentially fatal risks of taking too much
of the popular pain reliever. The unusual step, disclosed by the
company that makes Tylenol, comes amid a growing number of
lawsuits and pressure from the federal government that could have
widespread ramifications for a medicine taken by millions of
people every day.
Johnson & Johnson says the warning will appear on the cap of new
bottles of Extra Strength Tylenol sold in the U.S. starting in
October and on most other Tylenol bottles in coming months. The
warning will make it explicitly clear that the over-the-counter
drug contains acetaminophen, a pain-relieving ingredient that is
the nation's leading cause of sudden liver failure.
"We're always looking for ways to better communicate information
to patients and consumers," says Dr. Edwin Kuffner, vice president
of McNeil Consumer Healthcare, the Johnson & Johnson unit that
makes Tylenol.
Overdoses from acetaminophen send 55,000 to 80,000 people in the
U.S. to the emergency room each year and kill at least 500,
according to the Centers for Disease Control and Prevention and
the Food and Drug Administration. Acetaminophen can be found in
more than 600 over-the-counter and prescription products used by
nearly one in four American adults every week, including household
brands like Nyquil cold formula, Excedrin pain tablets and Sudafed
sinus pills.
Tylenol is the first of these products to include such a warning
label on the bottle cap. McNeil says the warning is a result of
research into the misuse of Tylenol by consumers. The new cap
message will read: "CONTAINS ACETAMINOPHEN" and "ALWAYS READ THE
LABEL."
The move comes at a critical time for the company, which faces
more than 85 personal injury lawsuits in federal court that blame
Tylenol for liver injuries and deaths. At the same time, the Food
and Drug Administration is drafting long-awaited safety proposals
that could curtail the use of Tylenol and other acetaminophen
products.
Much is at stake for McNeil and its parent company. Johnson &
Johnson does not report sales of Tylenol, but total sales of all
over-the-counter medicines containing acetaminophen were more than
$1.75 billion last year, according to Information Resources Inc.,
a retail data service.
Safety experts are most concerned about "extra-strength" versions
of Tylenol and other pain relievers with acetaminophen found in
drugstores. A typical two-pill dose of Extra Strength Tylenol
contains 1,000 milligrams of acetaminophen, compared with 650
milligrams for regular strength. Extra Strength Tylenol is so
popular that some pharmacies don't even stock regular strength.
Most experts agree that acetaminophen is safe when used as
directed, which generally means taking 4,000 milligrams, or eight
pills of Extra Strength Tylenol or less, a day.
Each year, some 100 million Americans use acetaminophen, but liver
damage occurs in only a fraction of 1 percent of users. Still,
liver specialists say those cases are preventable. Part of the
problem, they say, is that there are sometimes hundreds of pills
in a bottle, making it easy for consumers to pop as many as they
please. For example, McNeil sells Extra Strength Tylenol in
bottles containing up to 325 tablets
"The argument goes that if you take acetaminophen correctly you
will virtually never get into trouble," says Dr. William Lee of
the UT Southwestern Medical Center, who has studied acetaminophen
toxicity for four decades. "But it's the very fact that it's
easily accessible over-the-counter in bottles of 300 pills or more
that puts people in harm's way."
Lee applauded the new warning, but said McNeil's marketing has
contributed to the "freewheeling" way that Americans take the
drug. For decades, McNeil has advertised Tylenol as "the safest
kind of pain reliever" when used as directed. "That has been
their standard ploy in the past, and I would argue that safest it
is not," he says.
McNeil's Kuffner stands by the company's safety claim: "When taken
as directed, when people read and follow the label, I believe that
Tylenol and the acetaminophen ingredient is one of the safest pain
relievers on the market."
McNeil is the only major drugmaker adopting the bottle cap warning
at this time, according to the Consumer Healthcare Products
Association, a trade group for over-the-counter medicine
companies.
"While this is not an industrywide initiative at this time, it
fits squarely within the many ongoing industrywide educational
initiatives to further acetaminophen safe and responsible use by
consumers," said Emily Skor, a vice president with the trade
group, which represents McNeil, Bayer Healthcare, Procter & Gamble
and other nonprescription drugmakers.
20 Years of Warnings
McNeil has updated the safety warnings on Tylenol periodically
since the 1990s.
In 1994, the company added a warning about the risk of liver
damage when combining alcohol with Tylenol following a lawsuit
brought by Antonio Benedi, a former aide to President George H.W.
Bush, who fell into a coma and underwent emergency liver
transplant after mixing Tylenol with wine at dinner.
A jury awarded him $8.8 million in damages after concluding that
McNeil failed to warn consumers about the risk. The FDA made the
alcohol warning mandatory for all manufacturers of acetaminophen
in 1998.
Then, in 2002, an expert panel of FDA advisers recommended that
the government agency require all acetaminophen products to carry
a warning about the risk of "severe liver damage" when not taken
as directed. The group's votes are non-binding, though the FDA
usually follows them. McNeil voluntarily added the warning to its
products in 2004, five years before the FDA made it mandatory.
Today, McNeil appears to be moving ahead of regulators again. In
2009, the FDA assembled another expert panel to consider more
sweeping changes to reduce acetaminophen overdoses. The panel
recommended a half-dozen major changes, including lowering the
maximum nonprescription daily dose for adults. McNeil voluntarily
adopted that recommendation, lowering the recommended adult dose
of Extra Strength Tylenol to 3,000 milligrams per day, or six
pills of Extra Strength Tylenol, down from 4,000 milligrams per
day, or eight pills. The label stipulates that patients can still
take a higher dose under doctor's directions.
But the company has not embraced a more drastic recommendation by
the FDA's expert panel: eliminating the over-the-counter "extra-
strength" formulation altogether, which would mean lowering the
acetaminophen dose from 1,000 milligrams to 650 milligrams, or two
tablets of 325 milligrams each. The panel said the 1,000
milligram dose should only be available via prescription.
McNeil argues that the lower dose is less effective and could
drive people to take anti-inflammatory pain relievers, a different
class of drugs that includes aspirin and ibuprofen. Those
medicines can cause stomach ulcers and dangerous gastrointestinal
bleeding.
FDA spokeswoman Erica Jefferson says the agency is actively
working on new rules for both children and adult acetaminophen
products. While the agency won't give a timeframe for completion,
the federal government's website that tracks new regulations lists
December as the target date for publishing the proposed rules.
As early as 1977, FDA advisers recommended adding more warnings to
the acetaminophen label about liver damage, but the agency didn't
require the language until 2009.
"They are very slow to respond to these things and it's always a
little frustrating," says Dr. Lewis Nelson of New York University,
who chaired the 2009 FDA panel.
Anatomy of an Overdose
Experts first identified acetaminophen overdose as a major public
health concern in the 1990s, but it has taken years to form a
clearer picture of the problem.
Acetaminophen overdoses occur when the liver is overwhelmed by too
much of the drug, producing a toxic byproduct that kills liver
cells. Liver failure occurs when most cells are no longer able to
function. At that point, a patient then generally has 24 to 48
hours to live without a transplant.
Of the roughly 500 acetaminophen deaths reported annually, about
half are accidental, with the rest deemed suicides. About 60
percent of the unintentional overdoses involve prescription
opioid-acetaminophen combination drugs such as Percocet and
Vicodin, according to a database of liver failure cases run by
Dr. Lee at the Southwestern Medical Center in Dallas. Those two
products alone were prescribed more than 173 million times last
year, according to IMS Health.
So how do these accidental acetaminophen deaths occur? Imagine
you've had major dental surgery, and your dentist prescribes a
five-day supply of Percocet. You take the recommended two pills
every six hours for 2,600 milligrams of acetaminophen, well below
the 4,000-milligram-a-day safety threshold.
But you're still experiencing pain, so you decide to add Extra
Strength Tylenol, six caplets a day for another 3,000 milligrams.
Now you're feeling better but you still have trouble sleeping, so
you take Nyquil, for another 650 milligrams. After a few days on
this 6,250 milligram regimen, experts say acute liver damage is a
real risk.
The labels on all of these products warn against mixing them. But
researchers say many consumers either don't read or don't
understand such warnings.
Even after taking into account people who ignore labels, there are
still cases of liver damage that stump researchers. These are the
people who have apparently taken about 4,000 milligrams a day or
less, well within the safety threshold.
"It's still a little bit of a puzzle," says Dr. Anne Larson, of
the Swedish Medical Center in Seattle. "Is it genetic
predisposition? Are they claiming they took the right amount, but
they really took more? It's difficult to know."
The question is critical in the lawsuits piling up against McNeil
in the Eastern District of Pennsylvania, near McNeil's
headquarters in Fort Washington, Pa. Virtually all of the 85 cases
claim that the plaintiffs suffered liver failure despite taking
Tylenol as directed.
According to one of those complaints, Madeline Speal, of Salzburg,
Pa., took Tylenol for three days in November 2009 "at appropriate
times and in appropriate doses." But on Nov. 28, she was admitted
to Latrobe Area Hospital with catastrophic liver damage. She was
then transferred to the University of Pittsburgh Medical Center
where she underwent an emergency liver transplant.
The cases against McNeil, which share the same legal wording,
allege that the company risked the lives of consumers by making
"conscious decisions not to redesign, re-label, warn or inform the
unsuspecting consuming public."
The lawsuits have been consolidated under a single federal judge
to streamline the pretrial process, though they will eventually be
returned to judges in their original districts for trial.
J&J and McNeil continue to reiterate that Tylenol is safe. "We
remain confident in the safety and efficacy of Tylenol products,
which rightfully have been trusted by doctors, hospitals and
consumers for more than 50 years," McNeil said in a statement.
But lawyers for the patients suing McNeil say Tylenol can still be
dangerous even when used at or just above recommended levels.
"Products that are available to consumers should have a reasonable
margin of safety," said Laurence Berman, one of several attorneys
representing Tylenol users.
KERYX BIOPHARMACEUTICALS: Shareholders Amend New York Lawsuit
-------------------------------------------------------------
A Consolidated Amended Complaint was filed in In re Keryx
Biopharmaceuticals, Inc. Securities Litigation, Case No. 1:13-CV-
0755-KBF, which is pending in the U.S. District Court for the
Southern District of New York, according to the company's Aug. 2,
2013, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended June 30, 2013.
On February 1, 2013, a lawsuit was filed against us and our 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 us and our 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.). On June 10, 2013, the Court
entered an Order consolidating the two lawsuits and appointing a
lead plaintiff. The case is now styled In re Keryx
Biopharmaceuticals, Inc. Securities Litigation, Case No. 1:13-CV-
0755-KBF (S.D.N.Y.).
On July 10, 2013, the lead plaintiff filed a Consolidated Amended
Complaint that, in substance, repeated the claims alleged in the
consolidated lawsuits. The Consolidated Amended Complaint asserts
claims against (i) us for alleged violations of Section 10(b) of
the Securities Exchange Act of 1934 ("Exchange Act") and Rule 10b-
5 promulgated thereunder and (ii) our chief executive officer for
alleged violations of Sections 10(b) and 20(a) of the Exchange Act
and Rule 10b-5.
According to the Company, "The claims in the Consolidated Amended
Complaint are premised on general allegations that we and the
individual defendant 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 our stock to trade at
artificially inflated prices. The lead plaintiff seeks an
unspecified amount of damages. We believe the claims made in this
action are without merit, and intend to defend the consolidated
action vigorously. We cannot, however, predict the outcome or
effect, if any, of the lawsuit on our business."
KIA MOTORS: Recalls 10,000 SUVs Over Front Axle Failure
-------------------------------------------------------
Matt Mercuro, writing for Auto World News, reports that Kia is
recalling its Sorento after finding out that the vehicle's front
axle can fail.
The recall involves 9,700 SUVs with 2.4-liter, four-cylinder
engines from the 2014 model year according to a company press
release.
Kia said the vehicles were manufactured from Jan. 7 through
Mar. 12 of 2013.
The automaker's announcement came the same day Hyundai recalled
its Santa Fe Sport SUV over the same issue, according to USA
Today.
The vehicles were built from July 11, 2012 and March 12, 2013.
Both vehicles were built at Kia's West Point, Georgia plant. The
right axle drive shaft can crack and fail according to Kia.
If the issue takes place while the car is moving, it would lose
power. Even if the car is parked, the vehicle could roll away.
Kia said it's received a one customer complaint and 10 warranty
claims. The automaker has not said if any accidents or injuries
have occurred due to the issue.
The recall will notify owners soon and dealers will replace the
axle shaft assembly, free of charge.
Owners with more questions can call Kia at 1-800-333-4542.
KINDER MORGAN: Continues to Defend "Allen" Suit in Delaware
-----------------------------------------------------------
Kinder Morgan, Inc. continues to defend a subsidiary against a
class action lawsuit pending in Delaware, according to the
Company's August 5, 2013, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2013.
In May 2012, a unitholder of El Paso Pipeline Partners, L.P. (EPB)
filed a purported class action, captioned Allen v. El Paso
Pipeline GP Company, L.L.C., et al., in Delaware Chancery Court,
alleging both derivative and non derivative claims, against EPB,
and EPB's general partner and its board. EPB was named in the
lawsuit as both a "Class Defendant" and a "Derivative Nominal
Defendant." The complaint alleges a breach of the duty of good
faith and fair dealing in connection with the March 2011 sale to
EPB of a 25% ownership interest in Southern Natural Gas Company,
L.L.C. (SNG). The Defendants' motion to dismiss was denied. The
Defendants continue to believe this action is without merit and
intend to defend against it vigorously.
Kinder Morgan, Inc., -- http://www.kindermorgan.com/-- is the
largest midstream and the third largest energy company in North
America with a combined enterprise value of approximately $100
billion. The Houston, Texas-based Company owns an interest in or
operate approximately 75,000 miles of pipelines and 180 terminals.
Its pipelines transport natural gas, gasoline, crude oil, CO2 and
other products, and its terminals store petroleum products and
chemicals and handle such products as ethanol, coal, petroleum
coke and steel.
KINDER MORGAN: Waits for Sept. 9 Deal Hearing in Merger Suits
-------------------------------------------------------------
Kinder Morgan, Inc., is waiting for results in the settlement
hearing in merger-related lawsuits scheduled for September 9,
2013, according to the Company's August 5, 2013, Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended June 30, 2013.
Three putative class action lawsuits were filed in connection with
Kinder Morgan Energy Partners, L.P.'s (KMP's) merger with Copano
Energy, L.L.C.: (i) Schultes v. Copano Energy, L.L.C., et al.
(Case No. 06966), in the District Court of Harris County, Texas,
which is referred to as the Texas State Action; (ii) Bruen v.
Copano Energy, L.L.C., et al. (Case No. 4:13-CV-00540) in the
United States District Court for the Southern District of Texas,
which is referred to as the Texas Federal Action; and (iii) In re
Copano Energy, L.L.C. Shareholder Litigation, Case No. 8284-VCN in
the Court of Chancery of the State of Delaware, which is referred
to as the Delaware Action, which reflects the consolidation of
three actions originally filed in the Court of Chancery. The
Texas State Action, the Texas Federal Action and the Delaware
Action are collectively referred to as the "Actions."
The Actions name Copano, R. Bruce Northcutt, William L. Thacker,
James G. Crump, Ernie L. Danner, T. William Porter, Scott A.
Griffiths, Michael L. Johnson, Michael G. MacDougall, Kinder
Morgan G.P., Inc. (KMGP), KMP and Merger Sub as defendants. The
Actions are purportedly brought on behalf of a putative class
seeking to enjoin the merger and allege, among other things, that
the members of Copano's board of directors breached their
fiduciary duties by agreeing to sell Copano for inadequate and
unfair consideration and pursuant to an inadequate and unfair
process, and that Copano, KMP, KMGP, and Merger Sub aided and
abetted such alleged breaches. In addition, the plaintiffs in
each of the Texas State Action and the Delaware Action allege that
the Copano directors breached their duty of candor to unitholders
by failing to provide the unitholders with all material
information regarding the merger and/or made misstatements in the
preliminary proxy statement. The plaintiffs in the Texas Federal
Action also assert a claim under the federal securities laws
alleging that the preliminary proxy statement omits and/or
misrepresents material information in connection with the merger.
On April 21, 2013, the parties in all the Actions executed a
Memorandum of Understanding pursuant to which Copano agreed to
make certain additional disclosures concerning the merger in a
Form 8-K, which Copano filed on April 22, 2013, and the plaintiffs
agreed to enter into a stipulation of settlement providing for
full settlement and dismissal with prejudice of each of the
Actions. The parties then prepared and filed a Stipulation of
Settlement with the Delaware Chancery Court and on June 28, 2013,
Copano announced that it had reached an agreement with the
plaintiffs to settle all claims asserted against all defendants.
The settlement does not require the defendants to pay any monetary
consideration to the proposed settlement class, and is subject to,
among other conditions, approval of the Delaware Chancery Court.
A settlement hearing has been scheduled for September 9, 2013.
KinderMorgan, Inc., -- http://www.kindermorgan.com/-- is the
largest midstream and the third largest energy company in North
America with a combined enterprise value of approximately $100
billion. The Houston, Texas-based Company owns an interest in or
operate approximately 75,000 miles of pipelines and 180 terminals.
Its pipelines transport natural gas, gasoline, crude oil, CO2 and
other products, and its terminals store petroleum products and
chemicals and handle such products as ethanol, coal, petroleum
coke and steel.
MARKET LEADER: Defends Consolidated Merger-Related Class Suit
-------------------------------------------------------------
Market Leader, Inc. is defending a consolidated merger-related
lawsuit in Washington, according to the Company's August 5, 2013,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended June 30, 2013.
On May 7, 2013, the Company entered into the Agreement and Plan of
Merger (the "Merger Agreement") with Trulia, Inc. ("Trulia") and
Mariner Acquisition Corp, a wholly owned subsidiary of Trulia
("Merger Sub"). The Merger Agreement provides that, upon the
terms and subject to the conditions set forth therein, Merger Sub
will merge with and into the Company (the "Merger"), with the
Company continuing as the surviving corporation and wholly owned
subsidiary of Trulia.
In connection with the announcement of the Merger Agreement, three
purported class action lawsuits brought on behalf of all Market
Leader shareholders were filed in King County Superior Court:
Bruce Lynn v. Market Leader, et al., No. 13-2-20796-6, filed
May 23, 2013; Arjun Reddy v. Morris, et al., No. 13-2-21115-7,
filed May 29, 2013; and Jamason v. Market Leader, et al., No. 13-
2-21190-4, filed May 29, 2013. The complaints in the three
pending lawsuits are similar. The lawsuits allege, among other
things, that Market Leader's board of directors breached its
fiduciary duties to its shareholders by failing to maximize
shareholder value or to engage in a fair sale process before
approving the proposed acquisition of Market Leader by Trulia.
The plaintiffs seek relief that includes an injunction prohibiting
the consummation of the Merger, rescission to the extent the
Merger terms have already been implemented, damages for the
breaches of fiduciary duty, and payment of plaintiffs' attorneys'
fees and costs. The Company believes these allegations are
without merit and intends to defend the lawsuits vigorously.
There can be no assurance, however, with regard to the outcome of
these lawsuits. The three cases have been consolidated by the
King County Superior Court under the caption In re Market Leader
Inc. Shareholder's Litigation, No. 13-2-20796-6.
Founded in 1999 and headquartered in Kirkland, Washington, Market
Leader, Inc., provides innovative online technology and marketing
solutions for real estate professionals across the United States
and Canada. Market Leader's subscription-based real estate
marketing software and services help customers generate a steady
stream of prospects, and provide the systems and training they
need to convert those prospects into clients. The Company's
national consumer real estate sites give its customers access to
millions of future home buyers and sellers, while providing
consumers with free access to the information they seek.
MERCK & CO: Patients File Suits Over Januvia Side Effects
---------------------------------------------------------
Heidi Turner, writing for LawyersandSettlements.com, reports that
the US Food and Drug Administration (FDA) has said it will not
update the warning label regarding Januvia side effects because
there is no evidence to confirm a link between the drugs and an
increased risk of pancreatic cancer. Even though the FDA has
taken such a stance, patients have filed Januvia lawsuits,
alleging a link between Januvia and cancer. Meanwhile, other
health agencies have said they believe there is a link between the
drug and pancreatic cancer.
One of the issues for critics of Januvia is that Januvia has been
linked in studies to an increased risk pancreatitis. One study,
published online in JAMA, found that diabetes patients with
pancreatitis were more likely to be on Byetta or Januvia than
patients with diabetes who did not have pancreatitis.
Pancreatitis is not the same as having cancer, but pancreatitis is
widely seen as a risk factor of pancreatic cancer. In other
words, patients who develop pancreatitis are at an increased risk
of developing pancreatic cancer.
The American Diabetes Association released a statement on June 28,
2013, noting that there currently is "insufficient information to
modify current treatment recommendations." That said, the
organization also wrote that people taking Januvia and other drugs
in its class should be informed of all that is known about the
potential for risks and advantages, so they can make an informed
decision.
"Recent epidemiologic studies, rodent studies, and a recent human
autopsy study raised concerns that these agents (predominantly
sitagliptin and exenatide, by virtue of their time on the market
and thus longer patient exposure), may be associated with
pancreatic changes ranging from pancreatitis to premalignant
lesions," the ADA wrote. It also noted, however, that there was a
link between the diabetes and an increased risk of pancreatic
cancer, and the FDA found no risk of pancreatic disease associated
with the use of incretin mimetics (the class of drug Januvia
belongs to).
Patients who have developed pancreatic cancer after using Januvia
have filed lawsuits against the maker of the diabetes medication,
alleging they were not properly warned about the risks associated
with the drug. There are reportedly more than 100 lawsuits filed
across the US alleging patients were harmed by the use of incretin
drugs such as Januvia. The multidistrict litigation number is MDL
2452.
METABOLIX INC: Awaits Ruling on Motion to Junk Securities Suit
--------------------------------------------------------------
The United States District Court for the District of Massachusetts
is yet to rule on a motion by Metabolix, Inc. to dismiss an
amended securities complaint filed against it, according to the
company's Aug. 2, 2013, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended June 30, 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 ADM had
given notice of termination of the Telles 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, 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 plaintiffs opposed, and on which the court has not yet
ruled.
MYLAN INC: Updates on Antitrust Suits Over Lorazepam, Clorazepate
-----------------------------------------------------------------
In its Aug. 1, 2013, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2013, Mylan
Inc. provided updates on antitrust suits related to agreements the
Company entered into with a supplier and a broker for the drugs
Lorazepam and Clorazepate,
On June 1, 2005, a jury verdict was rendered against Mylan, Mylan
Pharmaceuticals Inc. (MPI), and co-defendants Cambrex Corporation
and Gyma Laboratories in the U.S. District Court for the District
of Columbia in the amount of approximately $12.0 million, which
has been accrued for by the Company.
The jury found that Mylan and its co-defendants willfully violated
Massachusetts, Minnesota and Illinois state antitrust laws in
connection with API supply agreements entered into between the
Company and its API supplier (Cambrex) and broker (Gyma) for two
drugs, Lorazepam and Clorazepate, in 1997, and subsequent price
increases on these drugs in 1998.
The case was brought by four health insurers who opted out of
earlier class action settlements agreed to by the Company in 2001
and represents the last remaining antitrust claims relating to
Mylan's 1998 price increases for Lorazepam and Clorazepate.
On December 20, 2006, the Company's motion for judgment as a
matter of law and motion for a new trial were denied and the
remaining motions were denied on January 24, 2008. In post-trial
filings, the plaintiffs requested that the verdict be trebled and
that request was granted on January 24, 2008.
On February 6, 2008, a judgment was issued against Mylan and its
co-defendants in the total amount of approximately $69.0 million,
which, in the case of three of the plaintiffs, reflects trebling
of the compensatory damages in the original verdict (approximately
$11.0 million in total) and, in the case of the fourth plaintiff,
reflects their amount of the compensatory damages in the original
jury verdict plus doubling this compensatory damage award as
punitive damages assessed against each of the defendants
(approximately $58.0 million in total), some or all of which may
be subject to indemnification obligations by Mylan.
Plaintiffs are also seeking an award of attorneys' fees and
litigation costs in unspecified amounts and prejudgment interest
of approximately $8.0 million. The Company and its co-defendants
appealed to the U.S. Court of Appeals for the D.C. Circuit and
have challenged the verdict as legally erroneous on multiple
grounds. The appeals were held in abeyance pending a ruling on the
motion for prejudgment interest, which has been granted.
Mylan has contested this ruling along with the liability finding
and other damages awards as part of its appeal, which was filed in
the Court of Appeals for the D.C. Circuit. On January 18, 2011,
the Court of Appeals issued a judgment remanding the case to the
District Court for further proceedings based on lack of diversity
with respect to certain plaintiffs.
On June 13, 2011, Mylan filed a certiorari petition with the U.S.
Supreme Court requesting review of the judgment of the D.C.
Circuit. On October 3, 2011, the certiorari petition was denied.
The case is now proceeding before the District Court.
On January 14, 2013, following limited court-ordered
jurisdictional discovery, the plaintiffs filed a fourth amended
complaint containing additional factual averments with respect to
the diversity of citizenship of the parties, along with a motion
to voluntarily dismiss 755 (of 1,387) self-funded customers whose
presence would destroy the District Court's diversity
jurisdiction. Plaintiffs also moved for a remittitur (reduction)
of approximately $8.1 million from the full damages award.
Mylan's brief in response to the new factual averments in the
complaint was filed on February 13, 2013. In addition to disputing
the sufficiency of many of the plaintiffs' jurisdictional
averments, Mylan argued that the case should be dismissed in its
entirety, or that alternatively all of the self-funded customer
claims should be dismissed. Mylan also argued for additional
discovery and a new trial on damages. Briefing on these issues is
complete, and a decision is pending.
In connection with the Company's appeal of the judgment, the
Company submitted a surety bond underwritten by a third-party
insurance company in the amount of $74.5 million in February 2008.
On May 30, 2012, the District Court ordered the amount of the
surety bond reduced to $66.6 million.
Class Actions by Consumers and Third-Party Payors
Dey L.P. (now known as Mylan Specialty L.P. and hereafter "Mylan
Specialty"), a wholly owned subsidiary of the Company, was named
as a defendant in several class actions brought by consumers and
third-party payors.
Mylan Specialty has reached a settlement of these class actions,
which has been approved by the court and all claims have been
dismissed. Additionally, a complaint was filed under seal by a
plaintiff on behalf of the United States of America against Mylan
Specialty in August 1997.
NAT'L FOOTBALL: Settlement Gets Mixed Reactions From Players
------------------------------------------------------------
Barry Wilner, writing for The Associated Press, reports that the
hundreds of millions of dollars the NFL is ready to pay former
players sounds great, until you stretch it out over 20 years and
divide it among thousands of people.
Which is why some former players and others think the league is
getting off cheap in its tentative settlement with victims of
concussion-related brain injuries.
The deal announced on Aug. 29 to settle 4,500 or so claims is
awaiting approval by a federal judge in Philadelphia.
"$765 million?" asked former Minnesota Viking Brent Boyd, one of
the original plaintiffs in the lawsuit. "The breakdown is $1.2
million over 20 years per team. What is that, a third of the
average salary? There is no penalty there. It's pocket change."
Former players union president and Pro Bowl center Kevin Mawae
complained that the NFL does not have to admit culpability.
"The unfortunate thing is that the general fan, they see $765
million and they think it's a windfall for the players. It's
great for . . . the guys that would fall in the category of
needing immediate help," Mr. Mawae said. "But it's $700 million
worth of hush money that they will never have to be accountable
for."
Others former players didn't seem as concerned about the amount of
money, preferring to focus on the timing of the settlement. They
said that getting medical coverage now for their peers -- or
themselves -- who suffer from a variety of brain ailments and
other health problems is essential.
"Those people who need help now, really need the help the most and
need it right now and not five years from now, will get the help,"
said former fullback Kevin Turner, who suffers from amyotrophic
lateral sclerosis, or Lou Gehrig's disease, and was one of the
lead plaintiffs. "That is key."
"It is hard to put a dollar figure on ALS or Parkinson's or
dementia and all these things. But if you ask me, I think it is
fair."
The lawsuits accused the NFL of concealing the long-term dangers
of concussions while glorifying spectacular hits on the field.
The settlement calls for payouts of up to $5 million for players
suffering from Alzheimer's disease; up to $4 million for those who
died of brain injuries known as chronic traumatic encephalopathy,
or CTE; and up to $3 million for players suffering from dementia.
The NFL will also pay for medical exams and devote $10 million
toward medical research.
The payments will hardly be a burden to the 32 NFL teams. The
league generates close to $10 billion a year in revenue, and that
is certain to rise when new TV contracts are negotiated in the
near future.
Andrew Zimbalist, a sports economist at Smith College in
Northampton, Mass., estimated the settlement will cost the NFL $45
million a year, or 0.4 percent of current revenue.
"The attorneys were under some pressure to deliver a concrete gain
for those players suffering from these diseases," Mr. Zimbalist
said. If not for the settlement, "it's likely the NFL would
litigate for many years before any settlement would come."
He added: "It is a positive settlement for the former players,
even though it could have been higher."
Or as Hall of Fame linebacker Harry Carson put it, the NFL "has
the resources to sort of stretch things out for years and years
and years. The players don't have years and years and years."
"When I look at the number of players who have had neurological
issues and have passed on," added Mr. Carson, who was not a
plaintiff, "I think now of the guys who are just starting to
experience neurological issues. They are going to be handled more
humanely."
It's also a positive public relations move for the NFL just a week
before the season kicks off. The last thing the league wanted was
for concussions to remain a front-page story while games were
being played.
Commissioner Roger Goodell can now point to the settlement and the
league's player-safety initiatives as proof that pro football is
dealing forcefully with the issue.
"PR-wise, it allows the league and the players association and
medical experts and the U.S. Army and Harvard to show how they are
coming up with solutions for the future rather than addressing
omissions of the past," said Marc Ganis, president of SportsCorp,
a Chicago-based sports consulting firm that does business with the
league and several teams.
But some former players wonder if their future will be any
brighter as they try to deal with brain disease.
Mr. Boyd said he foresees a "bureaucratic nightmare of red tape"
in attempts to get approved for coverage and then receive
treatment. He said he has been diagnosed with early-onset
dementia and has signs of Alzheimer's disease.
"When I testified before Congress, I spoke of how the NFL's plan
to cover disabilities was to delay, deny, hope they die," Mr. Boyd
said.
NAT'L FOOTBALL: Tony Dorsett Hopes Settlement Can Help Players
--------------------------------------------------------------
Nancy Armour, writing for The Associated Press, reports that
Tony Dorsett hopes a proposed $765 million settlement with the NFL
can make a difference in the lives of thousands of former players
who are suffering from dementia and other concussion-related brain
injuries.
Players like Mr. Dorsett himself, a Hall of Fame running back.
"There's definitely a dire need for help for these guys -- for us
guys," Mr. Dorsett told The Associated Press on Aug. 29.
The settlement would mean immediate compensation for ailing former
players and their families, as well as medical exams and treatment
for all other retirees -- a group that could total more than
20,000. It also would set aside $10 million for research that the
plaintiffs hope will protect future generations from the
devastating effects of repeated blows to the head.
The settlement still has to be approved by Senior U.S. District
Judge Anita Brody in Philadelphia, something lead plaintiffs'
lawyer Christopher Seeger said he expects to happen in the next 60
to 90 days.
"I don't know all the details so I really can't speak to the
specifics, but I'm glad to see there's been some movement and some
reaction to all this," said Mr. Dorsett, who starred for the
Dallas Cowboys after winning the 1976 Heisman Trophy at
Pittsburgh. Mr. Dorsett is the most accomplished and best-known
plaintiff in the mass of lawsuits.
"Wow," Mr. Dorsett said, pausing. "I'm glad to see this has come
to somewhat of an end. But the research obviously is going to be
important, the safety of the players is going to be extremely
important."
Mr. Dorsett and Super Bowl-winning quarterback Jim McMahon were
among the more than 4,500 former athletes -- some suffering from
dementia, depression or Alzheimer's -- who have sued the NFL since
the first case was filed in Philadelphia in 2011. They accused
the league of concealing the long-term dangers of concussions and
rushing injured players back onto the field, while glorifying and
profiting from the kind of bone-jarring hits that make for
spectacular highlight-reel footage.
"I'm shocked that it is settled. I'm used to the NFL taking a
hard-line approach as they have throughout the years with strikes
and everything else," said former offensive tackle Lomas Brown, a
seven-time Pro Bowler with Detroit, Arizona, Cleveland, the New
York Giants and Tampa Bay. "I'm curious how they came up with the
figure and I've got a lot of questions, but I am happy that it's
done. Any time the NFL acknowledges they are ready to settle
something, it shows they knew they had some sort of negligence."
The NFL has insisted that safety has always been a top priority,
and in settling the thousands of cases it admitted no wrongdoing.
While a trial could have forced the NFL to disclose what it knew,
and when, about concussion-linked brain problems, Mr. Seeger said
the plaintiffs' greater concern was a fair settlement -- and one
that would be paid immediately.
Had the lawsuits gone to trial, it could have been years before
the players saw any money. Years the players might not have.
"It's a good day, because we're getting help for those who need
help," said Mark Rypien, the MVP of the 1992 Super Bowl for the
Washington Redskins. "And a sad day, because we didn't get this
done earlier to help guys in the past."
Already, Pro Bowler Junior Seau and former Atlanta Falcon Ray
Easterling, one of the first players to file a lawsuit, have
committed suicide. Former Philadelphia Eagles fullback Kevin
Turner has amyotrophic lateral sclerosis, or Lou Gehrig's disease,
at 44, and fears he might not live to see his 50th birthday.
Dorsett finds himself forgetting how to get places he's been going
for 30 years, and his 10-year-old daughter now complains that they
can't do certain things together because "Daddy won't remember how
to do it."
"Football has been my life and football has been kind to me,"
Mr. Dorsett said. "But when I signed up for this, I didn't know
some of the repercussions; I did know I could get injured, but I
didn't know about my head or the trauma or the things that could
happen to me later on in life. I'm glad, again, that they've come
to some type of resolution, but I've got to see how it all plays
out. I hope it will benefit some guys that need help. That's the
good thing."
The settlement would cost the league $765 million, the vast
majority of which would go to compensate athletes with certain
neurological ailments, plus plaintiffs' attorney fees. Under the
settlement, individual payouts would be capped at $5 million for
men with Alzheimer's disease; $4 million for those diagnosed after
their deaths with a brain condition called chronic traumatic
encephalopathy; and $3 million for players with dementia.
"They deserve it, there's no question about it," said Mike Ditka,
who played tight end for the Chicago Bears and later coached the
1986 Super Bowl winners. "It's absolutely good to see that. I
think people have hid behind this too long. It's time it's out in
the open."
The settlement also sets aside $75 million for medical exams, and
all former NFL players are eligible to seek care, screening or
compensation -- whether they suffered a documented concussion or
not. The amounts they receive will be based on their age,
condition and years of play.
They do not need to prove their health problems are connected to
playing football.
"My whole deal, and the other lawsuit with images, is all about
health care, which we don't have," said Joe DeLamielleure, the
Hall of Fame offensive lineman with the Buffalo Bills. "Some
reporter called and said, 'That comes out to $170,000 per man.' I
said, 'Good, I don't want that. I want health care.' Because
what good is the money going to do you?"
Many had expected the litigation, or at least the negotiations, to
drag on longer. And most expected the settlement to be larger.
"I'm not going to say it was settled. I'm going to say it was a
good start," said Rayfield Wright, the Hall of Fame offensive
lineman with the Dallas Cowboys. "It's not the end of it because
there are a lot of other players that will come up with the same
situations, so I think the league has to find some kind of way to
address the issue because it's going to happen. Those are issues
that have to be resolved, and I don't think they're going to be
resolved overnight."
But it's better than what the players had before.
"My whole thing through this whole thing is we lived our dreams,
the players, and now our families live our nightmares,"
Mr. DeLamielleure said. "Let's help take care of the women and
the kids who have to take care of their dads from this stuff."
NSP-WISCONSIN: Uncertain If Plaintiffs Will Seek Further Review
---------------------------------------------------------------
Northern States Power Company said in its August 5, 2013, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended June 30, 2013, that it is uncertain whether the
plaintiffs will seek further review of a decision dismissing the
Comer II Litigation.
In May 2011, less than a year after their initial lawsuit was
dismissed, the plaintiffs in the purported class action lawsuit
captioned Comer vs. Xcel Energy Inc., et al., filed a second
lawsuit against more than 85 utility, oil, chemical and coal
companies in the U.S. District Court in Mississippi. The
complaint alleges defendants' CO2 emissions intensified the
strength of Hurricane Katrina and increased the damage plaintiffs
purportedly sustained to their property. The Plaintiffs base
their claims on public and private nuisance, trespass and
negligence. Among the defendants named in the complaint are Xcel
Energy Inc., Southwestern Public Service Company, a New Mexico
corporation (SPS), Public Service Company of Colorado, a Colorado
corporation (PSCo), Northern States Power Company, a Wisconsin
corporation (NSP-Wisconsin) and Northern States Power Company, a
Minnesota corporation (NSP-Minnesota). The amount of damages
claimed by plaintiffs is unknown. The defendants believe this
lawsuit is without merit and filed a motion to dismiss the
lawsuit. In March 2012, the U.S. District Court granted this
motion for dismissal. In April 2012, the plaintiffs appealed this
decision to the U.S. Court of Appeals for the Fifth Circuit.
In May 2013, the Fifth Circuit affirmed the district court's
dismissal of this lawsuit. The Company says it is uncertain
whether the plaintiffs will seek further review of this decision.
Although Xcel Energy believes the likelihood of loss is remote
based upon existing case law, it is not possible to estimate the
amount or range of reasonably possible loss in the event of an
adverse outcome of this matter. No accrual has been recorded for
this matter.
Northern States Power Company, a Wisconsin corporation, was
incorporated in 1901 and is a wholly owned subsidiary of Xcel
Energy Inc. NSP-Wisconsin is an operating utility primarily
engaged in the generation, transmission, distribution and sale of
electricity in portions of northwestern Wisconsin and in the
western portion of the Upper Peninsula of Michigan. The Company
is based in Eau Claire, Wisconsin.
ORTHO-MCNEIL-JANSSEN: Illinois Man Files Risperdal Mass Tort Claim
------------------------------------------------------------------
Jon Campisi, writing for The Pennsylvania Record, reports that an
Illinois man is suing the makers of the anti-psychotic drug
Risperdal, claiming his ingestion of the pharmaceutical for a
10-year period caused him to sustain bodily injuries and financial
hardship.
Steve D. Shadowen, an attorney with the Mechanicsburg, Pa. firm of
Hilliard & Shadowen, filed the mass tort claim Aug. 8 at the
Philadelphia Court of Common Pleas on behalf of Raymond McAfee.
The suit was filed as a short-form complaint in the master
Risperdal litigation in state court.
The lawsuit claims that McAfee, who resides in Olympia Fields,
Illinois, took Risperdal from about 2002 through this year, and as
a result of his taking the drug he developed Gynecomastia, or a
condition that causes enlarged breast tissues in males.
McAfee also allegedly developed diabetes mellitus and involuntary
movement disorders as a result of his ingesting the
pharmaceutical, the complaint states.
The defendants named in the lawsuit are Ortho-McNeil-Janssen
Pharmaceuticals, Johnson & Johnson Co., Excerpta Medica Inc. and
Elsevier Inc.
The complaint contains counts of negligence, fraud, strict product
liability, breach of express and implied warranties, unfair and
deceptive trade practices, conspiracy, and violations of
Pennsylvania's Unfair Trade Practices and Consumer Protection Law.
The plaintiff seeks unspecified compensatory and punitive damages.
A jury trial has been demanded.
Risperdal mass tort cases were consolidated at Philadelphia's
Common Pleas Court back in the fall of 2010.
They are being overseen by Judge Sandra Mazer Moss.
The case ID number is 120800540.
PNM RESOURCES: Navajo Nation Allottees Appeal Dismissal of Suit
---------------------------------------------------------------
The United States District Court in Albuquerque, N.M., is yet to
rule on an appeal by plaintiffs against a court order dismissing
the entirety of the complaint filed by members of the Navajo
Nation against PNM Resources, Inc., according to the company's
Aug. 2, 2013, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2013.
A putative class action was filed against PNM and other utilities
in February 2009 in the United States District Court in
Albuquerque. Plaintiffs claim to be allottees, members of the
Navajo Nation, who pursuant to the Dawes Act of 1887, were
allotted ownership in land carved out of the Navajo Nation and
allege that defendants, including PNM, are rights-of-way grantees
with rights-of-way across the allotted lands and are either in
trespass or have paid insufficient fees for the grant of rights-
of-way or both.
In March 2010, the court ordered that the entirety of the
plaintiffs' case be dismissed. The court did not grant plaintiffs
leave to amend their complaint, finding that they instead must
pursue and exhaust their administrative remedies before seeking
redress in federal court.
In May 2010, plaintiffs filed a Notice of Appeal with the Bureau
of Indian Affairs ("BIA"), which was denied by the BIA Regional
Director. In May 2011, plaintiffs appealed the Regional Director's
decision to the DOI Board of Appeals. Briefings on the merits of
the appeal are complete and a decision is pending.
PNM is participating in order to preserve its interests regarding
any PNM-acquired rights-of-way implicated in the appeal. PNM
cannot predict the outcome of the proceeding or the range of
potential outcomes at this time.
REYNOLDS AMERICAN: October Status Conference in "Turner" Suit
-------------------------------------------------------------
A status conference is scheduled for October 2, 2013 in Turner v.
R. J. Reynolds Tobacco Co., a case filed in February 2000 in
Circuit Court, Madison County, Illinois, according to Reynolds
American Inc.'s July 24, 2013, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2013.
A judge certified a class in November 2001. In June 2003, RJR
Tobacco filed a motion to stay the case pending Philip Morris's
appeal of the Price v. Philip Morris Inc. case mentioned, which
the judge denied in July 2003.
In October 2003, the Illinois Fifth District Court of Appeals
denied RJR Tobacco's emergency stay/supremacy order request. In
November 2003, the Illinois Supreme Court granted RJR Tobacco's
motion for a stay pending the court's final appeal decision in
Price. On October 11, 2007, the Illinois Fifth District Court of
Appeals dismissed RJR Tobacco's appeal of the court's denial of
its emergency stay/supremacy order request and remanded the case
to the Circuit Court. A status conference is scheduled for October
2, 2013.
REYNOLDS AMERICAN: Continues to Face "Howard" Suit in Illinois
--------------------------------------------------------------
There is currently no activity in the case Howard v. Brown &
Williamson Tobacco Corp., which was filed in February 2000 in
Circuit Court, Madison County, Illinois, according to Reynolds
American Inc.'s July 24, 2013, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2013.
A judge certified a class in December 2001. In June 2003, the
trial judge issued an order staying all proceedings pending
resolution of the Price v. Philip Morris, Inc. case mentioned. The
plaintiffs appealed this stay order to the Illinois Fifth District
Court of Appeals, which affirmed the Circuit Court's stay order in
August 2005. There is currently no activity in the case.
REYNOLDS AMERICAN: Feb. 2014 Status Conference in "Craft" Suit
--------------------------------------------------------------
A status conference is scheduled for February 3, 2014 in Craft v.
Philip Morris Companies, Inc. and Black v. Brown & Williamson
Tobacco Corp., according to Reynolds American Inc.'s July 24,
2013, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended June 30, 2013.
A "lights" class-action case is pending against each of RJR
Tobacco and Brown & Williamson Holdings, Inc. (B&W) in Missouri.
In Collora v. R. J. Reynolds Tobacco Co., a case filed in May 2000
in Circuit Court, St. Louis County, Missouri, a judge in St. Louis
certified a class in December 2003. In April 2007, the court
granted the plaintiffs' motion to reassign Collora and the
following cases to a single general division: Craft v. Philip
Morris Companies, Inc. and Black v. Brown & Williamson Tobacco
Corp.
In April 2008, the court stayed the case pending U.S. Supreme
Court review in Good v. Altria Group, Inc. A nominal trial date
of January 10, 2011 was scheduled, but it did not proceed at that
time. A status conference is scheduled for February 3, 2014.
Finally, in Black v. Brown & Williamson Tobacco Corp., a case
filed in November 2000 in Circuit Court, City of St. Louis,
Missouri, B&W removed the case to the U.S. District Court for the
Eastern District of Missouri. The plaintiffs filed a motion to
remand, which was granted in March 2006. In April 2008, the court
stayed the case pending U.S. Supreme Court review in Good v.
Altria Group, Inc. A nominal trial date of January 10, 2011, was
scheduled, but it did not proceed at that time. A status
conference is scheduled for February 3, 2014.
In the event RJR Tobacco and its affiliates or indemnitees lose
one or more of the pending "lights" class-action suits, RJR
Tobacco could face bonding difficulties depending upon the amount
of damages ordered, if any, which could have a material adverse
effect on RJR Tobacco's, and consequently RAI's, results of
operations, cash flows or financial position.
REYNOLDS AMERICAN: "Young" Stayed Pending Program to Stop Smoking
-----------------------------------------------------------------
The Circuit Court, Orleans Parish, Louisiana entered an order
staying the suit Young v. American Tobacco Co., Inc. pending the
implementation of the smoking cessation program in Scott v. The
American Tobacco Co., according to Reynolds American Inc.'s July
24, 2013, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended June 30, 2013.
In Young v. American Tobacco Co., Inc., a case filed in November
1997 in Circuit Court, Orleans Parish, Louisiana, the plaintiffs
brought an environmental tobacco smoke (ETS) class action against
U.S. cigarette manufacturers, including RJR Tobacco and Brown &
Williamson Holdings, Inc. (B&W), and parent companies of U.S.
cigarette manufacturers, including RJR, on behalf of all residents
of Louisiana who, though not themselves cigarette smokers, have
been exposed to secondhand smoke from cigarettes which were
manufactured by the defendants, and who allegedly suffered injury
as a result of that exposure.
The plaintiffs seek to recover an unspecified amount of
compensatory and punitive damages. In March 2013, the court
entered an order staying the case, including all discovery,
pending the implementation of the smoking cessation program
ordered by the court in Scott v. The American Tobacco Co.
REYNOLDS AMERICAN: "Parsons" Personal Injury Lawsuit Stayed
-----------------------------------------------------------
The case Parsons v. A C & S, Inc. remains stayed due to the
bankruptcy of defendants in the case, according to Reynolds
American Inc.'s July 24, 2013, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2013.
In Parsons v. A C & S, Inc., a case filed in February 1998 in
Circuit Court, Ohio County, West Virginia, the plaintiff sued
asbestos manufacturers, U.S. cigarette manufacturers, including
RJR Tobacco and Brown & Williamson Holdings, Inc. (B&W), and
parent companies of U.S. cigarette manufacturers, including RJR,
seeking to recover $1 million in compensatory and punitive damages
individually and an unspecified amount for the class in both
compensatory and punitive damages.
The class was brought on behalf of persons who allegedly have
personal injury claims arising from their exposure to respirable
asbestos fibers and cigarette smoke. The plaintiffs allege that
Mrs. Parsons' use of tobacco products and exposure to asbestos
products caused her to develop lung cancer and to become addicted
to tobacco.
In December 2000, three defendants, Nitral Liquidators, Inc.,
Desseaux Corporation of North American and Armstrong World
Industries, filed bankruptcy petitions in the U.S. Bankruptcy
Court for the District of Delaware, In re Armstrong World
Industries, Inc. Pursuant to section 362(a) of the Bankruptcy
Code, Parsons is automatically stayed with respect to all
defendants.
REYNOLDS AMERICAN: Still Faces Suit Over Nicotine Addiction
-----------------------------------------------------------
There is currently no activity in the case Jones v. American
Tobacco Co., which was filed by Missouri consumers alleging
tobacco products has caused them to become addicted to nicotine,
according to Reynolds American Inc.'s July 24, 2013, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended June 30, 2013.
Finally, in Jones v. American Tobacco Co., Inc., a case filed in
December 1998 in Circuit Court, Jackson County, Missouri, the
defendants removed the case to the U.S. District Court for the
Western District of Missouri in February 1999.
The action was brought against the major U.S. cigarette
manufacturers, including RJR Tobacco and Brown & Williamson
Holdings, Inc. (B&W), and parent companies of U.S. cigarette
manufacturers, including RJR, by tobacco product users and
purchasers on behalf of all similarly situated Missouri consumers.
The plaintiffs allege that their use of the defendants' tobacco
products has caused them to become addicted to nicotine. The
plaintiffs seek to recover an unspecified amount of compensatory
and punitive damages. The case was remanded to the Circuit Court
in February 1999. There is currently no activity in this case.
REYNOLDS AMERICAN: Saskatchewan Case Remains Active
---------------------------------------------------
Of the seven putative Canadian class actions filed against various
Canadian and non-Canadian tobacco-related entities, including RJR
Tobacco, the plaintiffs' counsel have been actively pursuing only
the action pending in Saskatchewan at this time, according to
Reynolds American Inc.'s July 24, 2013, Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended June
30, 2013.
The following seven putative Canadian class actions were filed
against various Canadian and non-Canadian tobacco-related
entities, including RJR Tobacco and one of its affiliates, in
courts in the Provinces of Alberta, British Columbia, Manitoba,
Nova Scotia, Ontario and Saskatchewan, although the plaintiffs'
counsel have been actively pursuing only the action pending in
Saskatchewan at this time:
In Adams v. Canadian Tobacco Manufacturers' Council, a case filed
in July 2009 in the Court of Queen's Bench for Saskatchewan
against Canadian and non-Canadian tobacco-related entities,
including RJR Tobacco and one of its affiliates, the plaintiffs
brought the case on behalf of all individuals who were alive on
July 10, 2009, and who have suffered, or who currently suffer,
from chronic obstructive pulmonary disease, emphysema, heart
disease or cancer, after having smoked a minimum of 25,000
cigarettes designed, manufactured, imported, marketed or
distributed by the defendants.
In Dorion v. Canadian Tobacco Manufacturers' Council, a case filed
in June 2009, in the Court of Queen's Bench of Alberta against
Canadian and non-Canadian tobacco-related entities, including RJR
Tobacco and one of its affiliates, the plaintiffs brought the case
on behalf of all individuals, including their estates, dependents
and family members, who purchased or smoked cigarettes designed,
manufactured, marketed or distributed by the defendants.
In Kunka v. Canadian Tobacco Manufacturers' Council, a case filed
in 2009 in the Court of Queen's Bench of Manitoba against Canadian
and non-Canadian tobacco-related entities, including RJR Tobacco
and one of its affiliates, the plaintiffs brought the case on
behalf of all individuals, including their estates, and their
dependents and family members, who purchased or smoked cigarettes
manufactured by the defendants.
In Semple v. Canadian Tobacco Manufacturers' Council, a case filed
in June 2009 in the Supreme Court of Nova Scotia against Canadian
and non-Canadian tobacco-related entities, including RJR Tobacco
and one of its affiliates, the plaintiffs brought the case on
behalf of all individuals, including their estates, dependents and
family members, who purchased or smoked cigarettes designed,
manufactured, marketed or distributed by the defendants for the
period of January 1, 1954, to the expiry of the opt out period as
set by the court.
In Bourassa v. Imperial Tobacco Canada Limited, a case filed in
June 2010 in the Supreme Court of British Columbia against
Canadian and non-Canadian tobacco-related entities, including RJR
Tobacco and one of its affiliates, the plaintiffs brought the case
on behalf of all individuals, including their estates, who were
alive on June 12, 2007, and who have suffered, or who currently
suffer from chronic respiratory diseases, after having smoked a
minimum of 25,000 cigarettes designed, manufactured, imported,
marketed, or distributed by the defendants.
In McDermid v. Imperial Tobacco Canada Limited, a case filed in
June 2010 in the Supreme Court of British Columbia against
Canadian and non-Canadian tobacco-related entities, including RJR
Tobacco and one of its affiliates, the plaintiffs brought the case
on behalf of all individuals, including their estates, who were
alive on June 12, 2007, and who have suffered, or who currently
suffer from heart disease, after having smoked a minimum of 25,000
cigarettes designed, manufactured, imported, marketed, or
distributed by the defendants.
In Jacklin v. Canadian Tobacco Manufacturers' Council, a case
filed in June 2012 in the Ontario Superior Court of Justice
against Canadian and non-Canadian tobacco-related entities,
including RJR Tobacco and one of its affiliates, the plaintiffs
brought the case on behalf of all individuals, including their
estates, who were alive on June 12, 2007, and who have suffered,
or who currently suffer from chronic obstructive pulmonary
disease, heart disease, or cancer, after having smoked a minimum
of 25,000 cigarettes designed, manufactured, imported, marketed,
or distributed by the defendants.
In each of these seven cases, the plaintiffs allege fraud,
fraudulent concealment, breach of warranty, breach of warranty of
merchantability and of fitness for a particular purpose, failure
to warn, design defects, negligence, breach of a "special duty" to
children and adolescents, conspiracy, concert of action, unjust
enrichment, market share liability, joint liability, and
violations of various trade practices and competition statutes.
The plaintiffs seek compensatory and aggravated damages; punitive
or exemplary damages; the right to waive the torts described and
claim disgorgement of the amount of revenues or profits the
defendants received from the sale of tobacco products to putative
class members; interest pursuant to the Pre-judgment Interest Act
and other similar legislation; and other relief the court deems
just. Pursuant to the terms of the 1999 sale of RJR Tobacco's
international tobacco business, RJR Tobacco has tendered the
defense of these seven actions to JTI. Subject to a reservation of
rights, JTI has assumed the defense of RJR Tobacco and its current
or former affiliates in these actions.
REYNOLDS AMERICAN: Indirect Purchasers' Antitrust Case Dismissed
----------------------------------------------------------------
As of June 30, 2013, all of the federal and state court antitrust
cases filed against U.S. cigarette manufacturers, including RJR
Tobacco and Brown & Williamson Holdings, Inc. (B&W), on behalf of
indirect purchasers, had been dismissed, according to Reynolds
American Inc.'s July 24, 2013, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2013.
A number of tobacco wholesalers and consumers have sued U.S.
cigarette manufacturers, including RJR Tobacco and B&W, in federal
and state courts, alleging that cigarette manufacturers combined
and conspired to set the price of cigarettes in violation of
antitrust statutes and various state unfair business practices
statutes.
In these cases, the plaintiffs asked the court to certify the
lawsuits as class actions on behalf of other persons who purchased
cigarettes directly or indirectly from one or more of the
defendants. As of June 30, 2013, all of the federal and state
court cases on behalf of indirect purchasers had been dismissed.
In Smith v. Philip Morris Cos., Inc., a case filed in February
2000, and pending in District Court, Seward County, Kansas, the
court granted class certification in November 2001, in an action
brought against the major U.S. cigarette manufacturers, including
RJR Tobacco and B&W, and the parent companies of the major U.S.
cigarette manufacturers, including RJR, seeking to recover an
unspecified amount in actual and punitive damages.
The plaintiffs allege that the defendants participated in a
conspiracy to fix or maintain the price of cigarettes sold in the
United States. In an opinion dated March 23, 2012, the court
granted summary judgment in favor of RJR Tobacco and B&W on the
plaintiffs' claims. On July 18, 2012, the plaintiffs filed a
notice of appeal.
REYNOLDS AMERICAN: Motion to Dismiss Filed in Lawsuit v. JTI-MC
---------------------------------------------------------------
A motion to dismiss was filed in a Statement of Claim by a
putative class of Ontario tobacco producers that sold tobacco to
JTI-MC during a purported class period, according to Reynolds
American Inc.'s July 24, 2013, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2013. JTI is seeking indemnification relating to the Statement of
Claim.
By purchase agreement dated March 9, 1999, amended and restated as
of May 11, 1999, referred to as the 1999 Purchase Agreement, RJR
and RJR Tobacco sold the international tobacco business to JTI.
Under the 1999 Purchase Agreement, RJR and RJR Tobacco retained
certain liabilities relating to the international tobacco business
sold to JTI. Under its reading of the indemnification provisions
of the 1999 Purchase Agreement, JTI has requested indemnification
for damages allegedly arising out of these retained liabilities.
A number of the indemnification claims between the parties
relating to the activities of Northern Brands in Canada have been
resolved. The other matters for which JTI has requested
indemnification for damages under the indemnification provisions
of the 1999 Purchase Agreement are:
(1) In a letter dated March 31, 2006, counsel for JTI stated that
JTI would be seeking indemnification under the 1999 Purchase
Agreement for any damages it may incur or may have incurred
arising out of a Southern District of New York grand jury
investigation, a now-terminated Eastern District of North Carolina
grand jury investigation, and various actions filed by the
European Community and others in the U.S. District Court for the
Eastern District of New York, referred to as the EDNY, against RJR
Tobacco and certain of its affiliates on November 3, 2000, August
6, 2001, and October 30, 2002, and against JTI on January 11,
2002.
(2) JTI also has sought indemnification relating to a Statement of
Claim filed on April 23, 2010, against JTI Macdonald Corp.,
referred to as JTI-MC, by the Ontario Flue-Cured Tobacco Growers'
Marketing Board, referred to as the Board, Andy J. Jacko, Brian
Baswick, Ron Kichler, and Aprad Dobrenty, proceeding on their own
behalf and on behalf of a putative class of Ontario tobacco
producers that sold tobacco to JTI-MC during the period between
January 1, 1986 and December 31, 1996, referred to as the Class
Period, through the Board pursuant to certain agreements.
The Statement of Claim seeks recovery for damages allegedly
incurred by the class representatives and the putative class for
tobacco sales during the Class Period made at the contract price
for duty free or export cigarettes with respect to cigarettes
that, rather than being sold duty free or for export, purportedly
were sold in Canada, which allegedly breached one or more of a
series of contracts dated between June 4, 1986, and July 3, 1996.
A motion to dismiss has been filed.
(3) Finally, JTI has advised RJR and RJR Tobacco of its view that,
under the terms of the 1999 Purchase Agreement, RJR and RJR
Tobacco are liable for a roughly $1.7 million judgment entered in
1998, plus interest and costs, in an action filed in Brazil by
Lutz Hanneman, a former employee of a former RJR Tobacco
subsidiary. RJR and RJR Tobacco deny that they are liable for this
judgment under the terms of the 1999 Purchase Agreement.
Although RJR and RJR Tobacco recognize that, under certain
circumstances, they may have these and other unresolved
indemnification obligations to JTI under the 1999 Purchase
Agreement, RJR and RJR Tobacco disagree with JTI as to (1) what
circumstances relating to any such matters may give rise to
indemnification obligations by RJR and RJR Tobacco, and (2) the
nature and extent of any such obligation. RJR and RJR Tobacco have
conveyed their position to JTI, and the parties have agreed to
resolve their differences at a later time.
REYNOLDS AMERICAN: "Villareal" Plaintiff Wants to Amend Complaint
-----------------------------------------------------------------
The motion of the plaintiff in Richard Villarreal v. R. J.
Reynolds Tobacco Co. to amend his complaint has been fully briefed
and the parties are now awaiting a ruling, according to Reynolds
American Inc.'s July 24, 2013, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2013.
In Richard Villarreal v. R. J. Reynolds Tobacco Co., a case filed
June 6, 2012, the plaintiff filed a collective action complaint
against R. J. Reynolds Tobacco Co., Pinstripe, Inc., and
CareerBuilder, LLC, in the U.S. District Court, Northern District
of Georgia.
The complaint alleges unlawful discrimination with respect to the
hiring of individuals to fill entry-level regional sales positions
in violation of the Age Discrimination in Employment Act (29
U.S.C. Section 621, et seq.).
Although the complaint is currently a single plaintiff case, the
complaint seeks collective/class action status. RJR Tobacco's and
Pinstripe's motion for partial dismissal was granted on March 6,
2013, thereby eliminating the plaintiff's disparate impact claim
and limiting the relevant time period for both the plaintiff's
claims and potential class claims.
RJR Tobacco and Pinstripe filed answers to the remaining disparate
treatment claim on March 20, 2013. Defendant CareerBuilder was
dismissed with prejudice on September 25, 2012. The plaintiff
filed a motion to amend the complaint on March 28, 2013, which RJR
Tobacco and Pinstripe opposed. The motion has been fully briefed
and the parties are now awaiting a ruling from the court.
Discovery has been stayed until 30 days after the court rules on
the motion to amend. The plaintiff must wait to file a motion for
class certification until 30 days after the commencement of
discovery.
REYNOLDS AMERICAN: Plaintiffs in "Tatum" Suit Appeal Dismissal
--------------------------------------------------------------
Plaintiffs in Tatum v. The R.J.R. Pension Investment Committee of
the R. J. Reynolds Tobacco Company Capital Investment Plan filed a
notice of appeal against the dismissal of the case, according to
Reynolds American Inc.'s July 24, 2013, Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended June
30, 2013.
In May 2002, in Tatum v. The R.J.R. Pension Investment Committee
of the R. J. Reynolds Tobacco Company Capital Investment Plan, an
employee of RJR Tobacco filed a class-action suit in the U.S.
District Court for the Middle District of North Carolina, alleging
that the defendants, RJR, RJR Tobacco, the RJR Employee Benefits
Committee and the RJR Pension Investment Committee, violated the
Employee Retirement Income Security Act of 1974, referred to as
ERISA.
The actions about which the plaintiff complains stem from a
decision made in 1999 by RJR Nabisco Holdings Corp., subsequently
renamed Nabisco Group Holdings Corp., referred to as NGH, to spin
off RJR, thereby separating NGH's tobacco business and food
business.
As part of the spin-off, the 401(k) plan for the previously
related entities had to be divided into two separate plans for the
now separate tobacco and food businesses. The plaintiff contends
that the defendants breached their fiduciary duties to
participants of the RJR 401(k) plan when the defendants removed
the stock funds of the companies involved in the food business,
NGH and Nabisco Holdings Corp., referred to as Nabisco, as
investment options from the RJR 401(k) plan approximately six
months after the spin-off.
The plaintiff asserts that a November 1999 amendment (the "1999
Amendment") that eliminated the NGH and Nabisco funds from the RJR
401(k) plan on January 31, 2000, contained sufficient discretion
for the defendants to have retained the NGH and Nabisco funds
after January 31, 2000, and that the failure to exercise such
discretion was a breach of fiduciary duty. In his complaint, the
plaintiff requests, among other things, that the court require the
defendants to pay as damages to the RJR 401(k) plan an amount
equal to the subsequent appreciation that was purportedly lost as
a result of the liquidation of the NGH and Nabisco funds.
In July 2002, the defendants filed a motion to dismiss, which the
court granted in December 2003. In December 2004, the U.S. Court
of Appeals for the Fourth Circuit reversed the dismissal of the
complaint, holding that the 1999 Amendment did contain sufficient
discretion for the defendants to have retained the NGH and Nabisco
funds as of February 1, 2000, and remanded the case for further
proceedings. The court granted the plaintiff leave to file an
amended complaint and denied all pending motions as moot.
In April 2007, the defendants moved to dismiss the amended
complaint. The court granted the motion in part and denied it in
part, dismissing all claims against the RJR Employee Benefits
Committee and the RJR Pension Investment Committee. The remaining
defendants, RJR and RJR Tobacco, filed their answer and
affirmative defenses in June 2007. The plaintiff filed a motion
for class certification, which the court granted in September
2008. The district court ordered mediation, but no resolution of
the case was reached.
In September 2008, each of the plaintiffs and the defendants filed
motions for summary judgment, and in January 2009, the defendants
filed a motion to decertify the class. A second mediation occurred
in June 2009, but again no resolution of the case was reached. The
district court overruled the motions for summary judgment and the
motion to decertify the class.
A non-jury trial was held in January and February 2010. During
closing arguments, the plaintiff argued for the first time that
certain facts arising at trial showed that the 1999 Amendment was
not validly adopted, and then moved to amend his complaint to
conform to this evidence at trial. On June 1, 2011, the court
granted the plaintiff's motion to amend his complaint and found
that the 1999 Amendment was invalid.
The parties filed their findings of fact and conclusions of law on
February 4, 2011. On February 25, 2013, the district court
dismissed the case with prejudice. On March 8, 2013, the
plaintiffs filed a notice of appeal.
TENNESSEE VALLEY: Dismissal of Hurricane Katrina Suit Affirmed
--------------------------------------------------------------
The U.S. Court of Appeals for the Fifth Circuit affirmed in May
2013 the dismissal of a class action lawsuit arising from
Hurricane Katrina, according to Tennessee Valley Authority's
August 5, 2013, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2013.
In April 2006, TVA was added as a defendant to a class action
lawsuit brought in the United States District Court for the
Southern District of Mississippi by 14 Mississippi residents
allegedly injured by Hurricane Katrina. The plaintiffs sued seven
large oil companies and an oil company trade association, three
large chemical companies and a chemical trade association, and 31
large companies involved in the mining and/or burning of coal,
alleging that the defendants' greenhouse gas (GHG) emissions
contributed to global warming and were a proximate and direct
cause of Hurricane Katrina's increased destructive force. Action
by the United States Supreme Court in January 2011 ended this case
in a manner favorable to TVA.
However, in May 2011, under a Mississippi state statute that
permits the re-filing of lawsuits that were dismissed on
procedural grounds, the plaintiffs filed another lawsuit in the
United States District Court for the Southern District of
Mississippi against the same and additional defendants, again
alleging that the defendants' GHG emissions contributed to global
warming and were a proximate and direct cause of Hurricane
Katrina's increased destructive force. The court dismissed the
lawsuit in March 2012 for a variety of reasons, including that the
lawsuit presented a non-justiciable political question and that
all of the claims were preempted by the Clean Air Act. The
plaintiffs appealed the case to the United States Court of Appeals
for the Fifth Circuit, which affirmed the dismissal on May 14,
2013.
The Tennessee Valley Authority -- http://www.tva.gov/-- is a
corporate agency and instrumentality of the United States that was
created in 1933. Knoxville, Tennessee-based TVA was created to,
among other things, improve navigation on the Tennessee River,
reduce the damage from destructive flood waters within the
Tennessee River system and downstream on the lower Ohio and
Mississippi Rivers, and further the economic development of TVA's
service area in the southeastern United States. TVA also operates
the nation's largest public power system and supplies power in
most of Tennessee, northern Alabama, northeastern Mississippi, and
southwestern Kentucky and in portions of northern Georgia, western
North Carolina, and southwestern Virginia to a population of over
nine million people.
TENNESSEE VALLEY: TVARS Beneficiaries Suit Reopened in July
-----------------------------------------------------------
The class action lawsuit involving the Tennessee Valley Authority
Retirement System was reopened in July 2013, according to
Tennessee Valley Authority's August 5, 2013, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
June 30, 2013.
In March 2010, eight current and former participants in and
beneficiaries of the Tennessee Valley Authority Retirement System
("TVARS") filed a lawsuit in the United States District Court for
the Middle District of Tennessee against the six then-current
members of the TVARS Board. The lawsuit challenged the TVARS
Board's decision to suspend the TVA contribution requirements for
2010 through 2013, and to amend the TVARS Rules and Regulations to
(1) reduce the calculation for cost of living adjustment ("COLA")
benefits for CY 2010 through CY 2013, (2) reduce the interest
crediting rate for the fixed fund accounts, and (3) increase the
eligibility age to receive COLAs from age 55 to 60. The
plaintiffs allege that TVA's actions violated the TVARS Board
members' fiduciary duties to the plaintiffs (and the purported
class) and the plaintiffs' contractual rights, among other claims.
The plaintiffs sought, among other things, unspecified damages, an
order directing the TVARS Board to rescind the amendments, and the
appointment of a seventh TVARS Board member. Five of the six
individual defendants filed motions to dismiss the lawsuit, while
the remaining defendant filed an answer to the complaint. In July
2010, TVA moved to intervene in the lawsuit in the event it was
not dismissed. In September 2010, the district court dismissed
the breach of fiduciary duty claim against the directors without
prejudice, allowing the plaintiffs to file an amended complaint
within 14 days against TVARS and TVA but not the individual
directors. The plaintiffs previously had voluntarily withdrawn
their constitutional claims, so the court also dismissed those
claims without prejudice. The court dismissed with prejudice the
plaintiffs' claims for breach of contract, violation of the
Internal Revenue Code, and appointment of a seventh TVARS Board
member.
In September 2010, the plaintiffs filed an amended complaint
against TVARS and TVA. The plaintiffs allege, among other things,
violations of their constitutional rights (due process, equal
protection, and property rights), violations of the Administrative
Procedure Act, and breach of statutory duties owed to the
plaintiffs. They seek a declaratory judgment and appropriate
relief for the alleged statutory and constitutional violations and
breaches of duty. TVA filed its answer to the amended complaint
in December 2010. In May 2012, the court granted the parties'
joint motion to administratively close the case subject to
reopening to allow the parties the opportunity to engage in
mediation. In July 2013, the court granted the plaintiffs' motion
to reopen the lawsuit.
The Tennessee Valley Authority -- http://www.tva.gov/-- is a
corporate agency and instrumentality of the United States that was
created in 1933. Knoxville, Tennessee-based TVA was created to,
among other things, improve navigation on the Tennessee River,
reduce the damage from destructive flood waters within the
Tennessee River system and downstream on the lower Ohio and
Mississippi Rivers, and further the economic development of TVA's
service area in the southeastern United States. TVA also operates
the nation's largest public power system and supplies power in
most of Tennessee, northern Alabama, northeastern Mississippi, and
southwestern Kentucky and in portions of northern Georgia, western
North Carolina, and southwestern Virginia to a population of over
nine million people.
WISCONSIN POWER: No Loss Contingency for Pension Plan Suit
----------------------------------------------------------
Interstate Power and Light Company (IPL) and Wisconsin Power and
Light Company WPL have not recognized any material loss
contingency amounts for the final judgment of damages as of
June 30, 2013 for a suit against the Alliant Energy Cash Balance
Pension Plan, according to the company's Aug. 2, 2013, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended June 30, 2013.
In 2008, a class-action lawsuit was filed against the Plan in the
Court. The complaint alleged that certain Plan participants who
received distributions prior to their normal retirement age did
not receive the full benefit to which they were entitled in
violation of ERISA because the Plan applied an improper interest
crediting rate to project the cash balance account to their normal
retirement age.
These Plan participants were limited to individuals who, prior to
normal retirement age, received a lump-sum distribution or an
annuity payment. The Court originally certified two subclasses of
plaintiffs that in aggregate include all persons vested or
partially vested in the Plan who received these distributions from
January 1, 1998 to August 17, 2006 including: (1) persons who
received distributions from January 1, 1998 through February 28,
2002; and (2) persons who received distributions from March 1,
2002 to August 17, 2006.
In June 2010, the Court issued an opinion and order that granted
the plaintiffs' motion for summary judgment on liability. In
December 2010, the Court issued an opinion and order that decided
the interest crediting rate that the Plan used to project the cash
balance accounts of the plaintiffs during the class period should
have been 8.2% and that a pre-retirement mortality discount would
not be applied to the damages calculation.
In May 2011, the Plan was amended and the Plan subsequently made
approximately $10 million in additional payments in 2011 to
certain former participants in the Plan. This amendment was
required based on an agreement Alliant Energy reached with the
Internal Revenue Service, which resulted in a favorable
determination letter for the Plan in 2011.
In November 2011, plaintiffs filed a motion for leave to file a
supplemental complaint to assert that the 2011 amendment to the
Plan was itself an ERISA violation. In March 2012, the Plan and
the plaintiffs each filed motions for summary judgment related to
the supplemental complaint, and the plaintiffs filed a motion for
class certification, seeking to amend the class definition and for
appointment of class representatives and class counsel.
In July 2012, the Court issued an opinion and order granting
plaintiffs' motion for class certification, but only as to the
interest crediting rate and the pre-retirement mortality discount
claims of lump-sum recipients. As a result of the opinion and
order, two new subclasses were certified in lieu of the prior
subclass certification.
Subclass A involves persons who received a lump-sum distribution
between January 1, 1998 and August 17, 2006 and who received an
interest crediting rate of less than 8.2% under the Plan as
amended in May 2011. Subclass B involves persons who received a
lump-sum distribution between January 1, 1998 and August 17, 2006
and who would have received a larger benefit under the Plan as
amended in May 2011 if a pre-retirement mortality discount had not
been applied. In the opinion and order the Court then granted
plaintiffs' motion for summary judgment as to the two subclasses,
and denied as moot the parties' motions for summary judgment with
respect to issues beyond the two subclasses.
In August 2012, as amended in September 2012, the Court entered a
final judgment for the two subclasses in the total amount of $18.7
million. The judgment amount includes pre-judgment interest
through July 2012 and takes into account the approximate $10
million of additional benefits paid by the Plan following the Plan
amendment in 2011. In September 2012, the Plan appealed the
judgment, and the interlocutory orders that led to the judgment,
to the Seventh Circuit Court of Appeals.
In November 2012, the Plan filed its opening brief with the
Seventh Circuit Court of Appeals in which it seeks to reverse all
or part of the judgment. In April 2013, the Seventh Circuit Court
of Appeals heard oral arguments and has not yet issued its final
decision.
The judgment discussed above did not address any award for
plaintiffs' attorney's fees or costs. In September 2012, the
plaintiffs filed a motion with the Court for payment of
plaintiffs' attorney's fees and costs in the amount of $9.6
million, of which $4.3 million was requested to be paid out of the
common fund awarded to the two subclasses in the September 2012
judgment.
In February 2013, the Court awarded plaintiffs' attorney's fees
and costs in the amount of $6.4 million. The Court ordered that
all of the fees and costs be paid from the $18.7 million judgment
previously awarded and not be in addition to that judgment.
Alliant Energy, IPL and WPL have not recognized any material loss
contingency amounts for the final judgment of damages as of June
30, 2013. A material loss contingency for the judgment will not be
recognized unless a final unappealable ruling is received, or a
settlement is reached, which results in an amendment to the Plan
and payment of additional benefits to Plan participants.
Alliant Energy, IPL and WPL are currently unable to predict the
final outcome of the class-action lawsuit or the ultimate impact
on their financial condition or results of operations but believe
an adverse outcome could have a material effect on their
retirement plan funding and expense.
WISCONSIN POWER: No Case Schedule Yet in Flood Damage Lawsuit
-------------------------------------------------------------
A case schedule has not yet been established by the U.S. District
Court for the Northern District of Iowa in a suit filed against
Cedar Rapids and Iowa City Railway Company (CRANDIC) in relation
to the flooding of the Cedar River in June 2008, according to the
company's Aug. 2, 2013, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended June 30, 2013.
In June 2013, several plaintiffs filed a complaint against Cedar
Rapids and Iowa City Railway Company (CRANDIC), Alliant Energy and
various other defendants in the Iowa District Court for Linn
County.
Plaintiffs assert claims of negligence and strict liability based
on their allegations that CRANDIC (along with other defendants)
caused or exacerbated flooding of the Cedar River in June 2008.
Plaintiffs allege that CRANDIC caused or exacerbated the flooding
when a railroad bridge and rail cars owned by CRANDIC collapsed
into the Cedar River on June 12, 2008.
Plaintiffs purport to represent a class of residential and
commercial property owners who allegedly incurred property damage
from the 2008 flooding of the Cedar River. The complaint also
alleges that Alliant Energy should be held liable for the actions
of CRANDIC; however, Alliant Energy believes this allegation is
without merit.
In June 2013, CRANDIC and Alliant Energy filed their answer to the
complaint denying all claims. In July 2013, a co-defendant removed
the case from the Iowa District Court for Linn County to the U.S.
District Court for the Northern District of Iowa, and CRANDIC and
Alliant Energy filed a consent to the removal. The case is pending
in the U.S. District Court for the Northern District of Iowa, and
a case schedule has not yet been established.
Alliant Energy and CRANDIC believe the case is without merit and
are vigorously contesting the case. As a result, Alliant Energy
does not currently believe any material losses from these claims
are both probable and reasonably estimated and therefore has not
recognized any material loss contingency amounts for this
complaint as of June 30, 2013. Due to the early stages of the
claim and the lack of specific damages identified, Alliant Energy
is currently unable to provide an estimate of potential loss or
range of potential loss.
Asbestos Litigation
ASBESTOS UPDATE: Dow Chemical Faces Suit Over Fibro Use at Plants
-----------------------------------------------------------------
Nathan Alexander, writing for GDP Insider, reports that a lawsuit
had been filed in the State Court in Louisiana, against The Dow
Chemical Company relating to asbestos-use at its plants. A
Plaquemine, Louisiana jury has now found that the company is
liable on all the courts. The allegation was that asbestos use
was causing cancer in workers at the unit. The Dow Plaquemine
Plant is the biggest chemical-plant in the petrochemical industry-
rich state.
It had been alleged that the exposure to asbestos at the company
was the reason for terminal cancer in Sidney Mabile. In the
lawsuit, Mr. Mabile's attorneys had alleged that by using asbestos
at the plant, the company has exposed thousands of its workers to
the hazards of asbestos. The lawsuit said that Mr. Mabile is just
one of the potential asbestos-cancer victims who have been exposed
at DOW. The famed law-firm, Baron and Budd which has a lengthy
history of representing cities, states, and individual
occupational and environmental cancer victims, had represented
Mr. Mabile.
Rampant Asbestos Use at Plants
The court documents revealed that the company continued its use if
literally tons of raw-asbestos in its chemical-manufacturing units
across the world. Most companies have discontinued the use of
asbestos, decades ago. However, the company continues to use this
proven carcinogen in all its plants. This is primarily because
its processing is almost 10-times cheaper with asbestos than it is
with other asbestos-free alternatives. Some internal DOW documents
indicate that the company had actually lobbied to oppose the
asbestos ban that has been put forth by the Environmental
protection Agency.
Fighting Against the Ban
It had fought the ban successfully and continues using it in the
U.S plants. Court documentation suggests that the company had
performed one "cost per cancer" analysis and decided that it would
cost the company more than $1.2B to transition al its chemical
plants to processing methods that did not use asbestos. The
company has continued its fight against the asbestos ban in other
countries.
ASBESTOS UPDATE: CONSOL Subsidiary Has 6,900 Fibro Claims
---------------------------------------------------------
CONSOL Energy Inc.'s subsidiary, Fairmont Supply Company, is named
defendant in approximately 6,900 asbestos-related claims in state
courts, according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
June 30, 2013.
The Company states: "One of our subsidiaries, Fairmont Supply
Company (Fairmont), which distributes industrial supplies,
currently is named as a defendant in approximately 6,900 asbestos-
related claims in state courts in Pennsylvania, Ohio, West
Virginia, Maryland, Texas and Illinois. Because a very small
percentage of products manufactured by third parties and supplied
by Fairmont in the past may have contained asbestos and many of
the pending claims are part of mass complaints filed by hundreds
of plaintiffs against a hundred or more defendants, it has been
difficult for Fairmont to determine how many of the cases actually
involve valid claims or plaintiffs who were actually exposed to
asbestos-containing products supplied by Fairmont. In addition,
while Fairmont may be entitled to indemnity or contribution in
certain jurisdictions from manufacturers of identified products,
the availability of such indemnity or contribution is unclear at
this time, and in recent years, some of the manufacturers named as
defendants in these actions have sought protection from these
claims under bankruptcy laws. Fairmont has no insurance coverage
with respect to these asbestos cases. Based on over 15 years of
experience with this litigation, we have established an accrual to
cover our estimated liability for these cases. This accrual is
immaterial to the overall financial position of CONSOL Energy and
is included in Other Accrued Liabilities on the Consolidated
Balance Sheet. Past payments by Fairmont with respect to asbestos
cases have not been material."
CONSOL Energy Inc. (CONSOL Energy) is a producer of coal and
natural gas for global energy and raw material markets, which
include the electric power generation industry and the steelmaking
industry. During the year ended December 31, 2011, the Company
produced 62.6 million tons of high-British thermal unit (Btu)
bituminous coal from 12 mining complexes in the United States. In
addition, it provides energy services, including river and dock
services, terminal services, industrial supply services, coal
waste disposal services and land resource management services. The
Company operates in two segments: Coal and Gas. In July 2012,
Cloud Peak Energy Inc. acquired Youngs Creek Mining Company, LLC
(Youngs Creek) joint venture and other related coal and surface
assets from Chevron U.S.A. Inc. (Chevron) and the Company.
ASBESTOS UPDATE: MeadWestvaco Corp. Had 550 PI Suits at June 30
---------------------------------------------------------------
MeadWestvaco Corporation had 550 asbestos-related personal injury
lawsuits pending against it, according to the Company's Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarterly period ended June 30, 2013.
As with numerous other large industrial companies, the Company has
been named a defendant in asbestos-related personal injury
litigation. Typically, these suits also name many other corporate
defendants. To date, the costs resulting from the litigation,
including settlement costs, have not been significant. As of June
30, 2013, there were about 550 lawsuits. Management believes that
the company has substantial indemnification protection and
insurance coverage, subject to applicable deductibles and policy
limits, with respect to asbestos claims. The company has valid
defenses to these claims and intends to continue to defend them
vigorously. Additionally, based on its historical experience in
asbestos cases and an analysis of the current cases, the company
believes that it has adequate amounts accrued for potential
settlements and judgments in asbestos-related litigation. At June
30, 2013, the company had recorded litigation liabilities of
approximately $31 million, a significant portion of which relates
to asbestos. Should the volume of litigation grow substantially,
it is possible that the company could incur significant costs
resolving these cases. After consulting with legal counsel and
after considering established liabilities, it is our judgment that
the resolution of pending litigation and proceedings is not
expected to have a material adverse effect on the company's
consolidated financial condition or liquidity. In any given period
or periods, however, it is possible such proceedings or matters
could have a material effect on the results of operations.
MeadWestvaco Corporation (MWV) is a global packaging company
providing solutions to the healthcare, beauty and personal care,
food, beverage, home and garden, tobacco, and agricultural
industries. The company also produces specialty chemicals for the
automotive, energy, and infrastructure industries and maximizes
the value of its land holdings through forestry operations,
property development and land sales. MWV's reporting segments are
Food & Beverage; Home, Health & Beauty; Industrial; Specialty
Chemicals, and Community Development and Land Management. On May
1, 2012, the Company completed the spin-off of its Consumer &
Office Products business and subsequent merger of that business
with ACCO Brands Corporation. On November 30, 2012, MWV acquired
Ruby Macons Limited (Ruby Macons). On December 11, 2012, MWV
acquired the remaining 50% interest in Resitec Industria Quimica,
Ltda.
ASBESTOS UPDATE: Noble Corp. Had 33 Exposure Suits at June 30
-------------------------------------------------------------
Noble Corporation had 33 pending lawsuits alleging personal injury
as a resulting from exposure to asbestos, according to the
Company's Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarterly period ended June 30, 2013.
The Company states: "We are from time to time a party to various
lawsuits that are incidental to our operations in which the
claimants seek an unspecified amount of monetary damages for
personal injury, including injuries purportedly resulting from
exposure to asbestos on drilling rigs and associated facilities.
At June 30, 2013, there were 33 asbestos related lawsuits in which
we are one of many defendants. These lawsuits have been filed in
the United States in the states of Louisiana, Mississippi and
Texas. We intend to vigorously defend against the litigation. We
do not believe the ultimate resolution of these matters will have
a material adverse effect on our financial position, results of
operations or cash flows."
Noble Corporation (Noble) is an offshore drilling contractor for
the oil and gas industry. The Company performs contract drilling
services with its fleet of 79 mobile offshore drilling units
globally. It also owns one floating production storage and
offloading unit (FPSO) located globally. As of December 31, 2012,
its fleet consisted of 14 semisubmersibles, 14 drillships, 49
jackups and two submersibles, including 11 units under
construction, including five drillships and six jackups. As of
February 7, 2013, approximately 85% of its fleet was located
outside the United States in areas, which included Mexico, Brazil,
the North Sea, the Mediterranean, West Africa, the Middle East,
India and Australia.
ASBESTOS UPDATE: AIG Increased Gross Reserves by $23 Million
------------------------------------------------------------
In the six month period ended June 30, 2013, American
International Group, Inc., increased its gross asbestos reserves
by $23 million, according to the Company's Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarterly
period ended June 30, 2013.
The estimation of loss reserves relating to asbestos and
environmental claims on insurance policies written many years ago
is subject to greater uncertainty than other types of claims due
to inconsistent court decisions as well as judicial
interpretations and legislative actions that in some cases have
tended to broaden coverage beyond the original intent of such
policies and in others have expanded theories of liability.
AIG's reserves relating to asbestos and environmental claims
reflect a comprehensive ground-up analysis performed periodically.
In the six-month period ended June 30, 2013, AIG increased its
gross asbestos reserves by $23 million and its net asbestos
reserves by $13 million to reflect a small amount of uncollectible
reinsurance and accretion of discount. In the six-month period
ended June 30, 2013, AIG increased its gross environmental
reserves by $61 million and its net environmental reserves by $38
million as a result of recent actuarial analyses performed as well
as development on one large account.
In addition, AIG Property Casualty also has asbestos reserves
relating to foreign risks written by non-U.S. entities of $127
million gross and $104 million net as of June 30, 2013. The
asbestos reserves relating to non-U.S. risks written by non-U.S.
entities were $140 million gross and $116 million net as of
December 31, 2012.
American International Group, Inc. (AIG) is a global insurance
company. The Company provides a range of property casualty
insurance, life insurance, retirement products, mortgage insurance
and other financial services to customers in more than 130
countries. It diverse offerings include products and services that
help businesses and individuals protect their assets, manage risks
and provide for retirement security. It earns revenues primarily
from insurance premiums, policy fees from universal life insurance
and investment products, and income from investments. Its segments
include AIG Property Casualty and AIG Life and Retirement. During
the year ended December 31, 2012, the Chartis segment was renamed
AIG Property Casualty and the SunAmerica segment was renamed AIG
Life and Retirement.
ASBESTOS UPDATE: IDEX Corp. Continues to Defend Exposure Suits
--------------------------------------------------------------
IDEX Corporation continues to defend itself against lawsuits
claiming various asbestos-related personal injuries, according to
the Company's Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarterly period ended June 30, 2013.
The Company and six of its subsidiaries are presently named as
defendants in a number of lawsuits claiming various asbestos-
related personal injuries, allegedly as a result of exposure to
products manufactured with components that contained asbestos.
Such components were acquired from third party suppliers, and were
not manufactured by any of the subsidiaries. To date, the majority
of the Company's settlements and legal costs, except for costs of
coordination, administration, insurance investigation and a
portion of defense costs, have been covered in full by insurance,
subject to applicable deductibles. However, the Company cannot
predict whether and to what extent insurance will be available to
continue to cover such settlements and legal costs, or how
insurers may respond to claims that are tendered to them. Claims
have been filed in jurisdictions throughout the United States.
Most of the claims resolved to date have been dismissed without
payment. The balance has been settled for various insignificant
amounts. Only one case has been tried, resulting in a verdict for
the Company's business unit. No provision has been made in the
financial statements of the Company, other than for insurance
deductibles in the ordinary course, and the Company does not
currently believe the asbestos-related claims will have a material
adverse effect on the Company's business, financial position,
results of operations or cash flow.
IDEX Corporation (IDEX) is an applied solutions business that
sells an array of pumps, flow meters and other fluidics systems
and components and engineered products to customers in a variety
of markets worldwide. IDEX operates in three business segments:
Fluid & Metering Technologies, Health & Science Technologies and
Fire & Safety/Diversified Products. Fluid & Metering Technologies
segment consist of Banjo; Energy and Fuels; Chemical, Food &
Process and Water & Waste Water. Health & Science Technologies
segment consist of IDEX Health & Science; IDEX Optics and
Photonics; Precision Polymer Engineering; Gast; Micropump and
Materials Process Technologies. Fire & Safety/Diversified Products
segment consist of Fire Suppression; Rescue Tools and Band-It. In
July 20, 2012, it acquired Matcon Group Limited. In March 2013, it
announced the acquisition of FTL Seals Technology, Ltd. On April
11, 2012, it acquired the stock of PPC. On April 30, 2012, it
acquired the stock of ERC.
ASBESTOS UPDATE: Houston Wire Continues to Defend PI Lawsuits
-------------------------------------------------------------
Houston Wire & Cable Company continues to defend itself against
asbestos-related personal injury, according to the Company's Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarterly period ended June 30, 2013.
The Company, along with many other defendants, has been named in a
number of lawsuits in the state courts of Illinois, Minnesota,
North Dakota, and South Dakota alleging that certain wire and
cable which may have contained asbestos caused injury to the
plaintiffs who were exposed to this wire and cable. These lawsuits
are individual personal injury suits that seek unspecified amounts
of money damages as the sole remedy. It is not clear whether the
alleged injuries occurred as a result of the wire and cable in
question or whether the Company, in fact, distributed the wire and
cable alleged to have caused any injuries. The Company maintains
general liability insurance that, to date, has covered the defense
of and all costs associated with these claims. In addition, the
Company did not manufacture any of the wire and cable at issue,
and the Company would rely on any warranties from the
manufacturers of such cable if it were determined that any of the
wire or cable that the Company distributed contained asbestos
which caused injury to any of these plaintiffs. In connection with
ALLTEL's sale of the Company in 1997, ALLTEL provided indemnities
with respect to costs and damages associated with these claims
that the Company believes it could enforce if its insurance
coverage proves inadequate.
There are no legal proceedings pending against or involving the
Company that, in management's opinion, based on the current known
facts and circumstances, are expected to have a material adverse
effect on the Company's consolidated financial position, cash
flows, or results from operations.
Houston Wire & Cable Company, through its wholly owned
subsidiaries, HWC Wire & Cable Company, Advantage Wire & Cable and
Cable Management Services Inc., provides wire and cable, hardware
and related services to the U.S. market through twenty-one
locations in thirteen states throughout the United States. The
Company has no other business activity.
ASBESTOS UPDATE: TMS Int'l. Continues to Defend PI Claims
---------------------------------------------------------
TMS International Corp. continues to defend itself against
asbestos-related personal injury claims, according to the
Company's Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarterly period ended June 30, 2013.
Two non-operating subsidiaries of a predecessor company, along
with a landfill and waste management business, were spun-off to
the Company's former stockholders in October 2002. The two former
subsidiaries were subject to asbestos related personal injury
claims. The Company believes that it has no obligation for
asbestos related claims regarding the spun-off subsidiaries. In
addition, the Company has been named as a defendant in certain
asbestos-related claims relating to lines of business that were
discontinued over 20 years ago. The Company believes that it is
sufficiently protected by insurance with respect to these
asbestos-related claims related to these former lines of business,
and does not believe that the ultimate outcome will have a
material adverse effect on the Company's financial position,
results of operations or cash flows.
TMS International Corp. (TMS), formerly Metal Services Acquisition
Corp., is a provider of outsourced industrial services to steel
mills in North America. The Company provides a range of services
through two segments: Mill Services Group and Raw Material and
Optimization Group. The Mill Services Group segment includes scrap
management and preparation; semi-finished and finished material
handling; metal recovery and slag handling, processing and sales,
and surface conditioning. The Raw Material and Optimization Group
segment include raw materials procurement and logistics, and
software-based raw materials cost optimization. The Company is a
holding company controlled by Onex, and it operates through its
wholly-owned subsidiaries, including its primary operating company
Tube City IMS, LLC. It operates at 74 customer sites in nine
countries across North America, Europe and Latin America, and its
global raw materials procurement network spans five continents.
ASBESTOS UPDATE: Sealed Air Records $388MM Interest in Grace Deal
-----------------------------------------------------------------
Sealed Air Corporation's accrued interest in its settlement
agreement with W.R. Grace & Co. was $388 million, according to the
Company's Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarterly period ended June 30, 2013.
The Company states: "On November 27, 2002, we reached an agreement
in principle with the Committees appointed to represent asbestos
claimants in the bankruptcy case of W. R. Grace & Co., known as
Grace, to resolve all current and future asbestos-related claims
made against the Company and our affiliates in connection with the
Cryovac transaction (as memorialized by the parties in the
Settlement agreement and as approved by the Bankruptcy Court, the
"Settlement agreement"). The Settlement agreement will also
resolve the fraudulent transfer claims and successor liability
claims, as well as indemnification claims by Fresenius Medical
Care Holdings, Inc. and affiliated companies, in connection with
the Cryovac transaction. On December 3, 2002, our Board of
Directors approved the agreement in principle. We received notice
that both of the Committees had approved the agreement in
principle as of December 5, 2002. The parties subsequently signed
the definitive Settlement agreement as of November 10, 2003
consistent with the terms of the agreement in principle.
We recorded a pre-tax charge of approximately $850 million as a
result of the Settlement agreement on our condensed consolidated
statement of operations for the year ended December 31, 2002. The
charge consisted of the following items:
* a charge of $513 million covering a cash payment that we will be
required to make under the Settlement agreement upon the
effectiveness of an appropriate plan of reorganization in the
Grace bankruptcy. Because we cannot predict when a plan of
reorganization may become effective, we recorded this liability as
a current liability on our consolidated balance sheet at December
31, 2002. Under the terms of the Settlement agreement, this amount
accrues interest at a 5.5% annual rate from December 21, 2002 to
the date of payment. We have recorded this interest in interest
expense on our condensed consolidated statements of operations and
in Settlement agreement and related accrued interest on our
condensed consolidated balance sheets. The accrued interest, which
is compounded annually, was $388 million at June 30, 2013 and $364
million at December 31, 2012.
* a non-cash charge of $322 million representing the fair market
value at the date we recorded the charge of nine million shares of
Sealed Air common stock that we expect to issue under the
Settlement agreement upon the effectiveness of an appropriate plan
of reorganization in the Grace bankruptcy, which was adjusted to
eighteen million shares due to our two-for-one stock split in
March 2007. These shares are subject to customary anti-dilution
provisions that adjust for the effects of stock splits, stock
dividends and other events affecting our common stock. The fair
market value of our common stock was $35.72 per pre-split share
($17.86 post-split) as of the close of business on December 5,
2002. We recorded this amount on our consolidated balance sheet at
December 31, 2002 as follows: $0.9 million representing the
aggregate par value of these shares of common stock reserved for
issuance related to the Settlement agreement, and the remaining
$321 million, representing the excess of the aggregate fair market
value over the aggregate par value of these common shares, in
additional paid-in capital.
* $16 million of legal and related fees as of December 31, 2002.
On June 30, 1998, we completed a multi-step transaction that
brought the Cryovac packaging business and the former Sealed Air
Corporation's business under the common ownership of the Company.
These businesses operate as subsidiaries of the Company, and the
Company acts as a holding company. As part of that transaction,
the parties separated the Cryovac packaging business, which
previously had been held by various direct and indirect
subsidiaries of the Company, from the remaining businesses
previously held by the Company. The parties then arranged for the
contribution of these remaining businesses to a company now known
as W. R. Grace & Co., and the Company distributed the Grace shares
to the Company's stockholders. As a result, W. R. Grace & Co.
became a separate publicly owned company. The Company
recapitalized its outstanding shares of common stock into a new
common stock and a new convertible preferred stock. A subsidiary
of the Company then merged into the former Sealed Air Corporation,
which became a subsidiary of the Company and changed its name to
Sealed Air Corporation (US).
In connection with the Cryovac transaction, Grace and its
subsidiaries retained all liabilities arising out of their
operations before the Cryovac transaction, whether accruing or
occurring before or after the Cryovac transaction, other than
liabilities arising from or relating to Cryovac's operations.
Among the liabilities retained by Grace are liabilities relating
to asbestos-containing products previously manufactured or sold by
Grace's subsidiaries prior to the Cryovac transaction, including
its primary U.S. operating subsidiary, W. R. Grace & Co.-Conn.,
which has operated for decades and has been a subsidiary of Grace
since the Cryovac transaction. The Cryovac transaction agreements
provided that, should any claimant seek to hold the Company or any
of its subsidiaries responsible for liabilities retained by Grace
or its subsidiaries, including the asbestos-related liabilities,
Grace and its subsidiaries would indemnify and defend us.
Since the beginning of 2000, we have been served with a number of
lawsuits alleging that, as a result of the Cryovac transaction, we
are responsible for alleged asbestos liabilities of Grace and its
subsidiaries, some of which were also named as co-defendants in
some of these actions. Among these lawsuits are several purported
class actions and a number of personal injury lawsuits. Some
plaintiffs seek damages for personal injury or wrongful death,
while others seek medical monitoring, environmental remediation or
remedies related to an attic insulation product. Neither the
former Sealed Air Corporation nor Cryovac, Inc. ever produced or
sold any of the asbestos-containing materials that are the
subjects of these cases. None of these cases has reached
resolution through judgment, settlement or otherwise. Grace's
Chapter 11 bankruptcy proceeding has stayed all of these cases.
While the allegations in these actions directed to us vary, these
actions all appear to allege that the transfer of the Cryovac
business as part of the Cryovac transaction was a fraudulent
transfer or gave rise to successor liability. Under a theory of
successor liability, plaintiffs with claims against Grace and its
subsidiaries may attempt to hold us liable for liabilities that
arose with respect to activities conducted prior to the Cryovac
transaction by W. R. Grace & Co.-Conn. or other Grace
subsidiaries. A transfer would be a fraudulent transfer if the
transferor received less than reasonably equivalent value and the
transferor was insolvent or was rendered insolvent by the
transfer, was engaged or was about to engage in a business for
which its assets constitute unreasonably small capital, or
intended to incur or believed that it would incur debts beyond its
ability to pay as they mature. A transfer may also be fraudulent
if it was made with actual intent to hinder, delay or defraud
creditors. If a court found any transfers in connection with the
Cryovac transaction to be fraudulent transfers, we could be
required to return the property or its value to the transferor or
could be required to fund liabilities of Grace or its subsidiaries
for the benefit of their creditors, including asbestos claimants.
We have reached an agreement in principle and subsequently signed
the Settlement agreement that is expected to resolve all these
claims.
In the Joint Proxy Statement furnished to their respective
stockholders in connection with the Cryovac transaction, both
parties to the transaction stated that it was their belief that
Grace and its subsidiaries were adequately capitalized and would
be adequately capitalized after the Cryovac transaction and that
none of the transfers contemplated to occur in the Cryovac
transaction would be a fraudulent transfer. They also stated their
belief that the Cryovac transaction complied with other relevant
laws. However, if a court applying the relevant legal standards
had reached conclusions adverse to us, these determinations could
have had a materially adverse effect on our consolidated financial
condition and results of operations.
On April 2, 2001, Grace and a number of its subsidiaries filed
petitions for reorganization under Chapter 11 of the U.S.
Bankruptcy Code in the U.S. Bankruptcy Court in the District of
Delaware (the "Bankruptcy Court"). Grace stated that the filing
was made in response to a sharply increasing number of asbestos
claims since 1999.
In connection with its Chapter 11 filing, Grace filed an
application with the Bankruptcy Court seeking to stay, among
others, all actions brought against the Company and specified
subsidiaries related to alleged asbestos liabilities of Grace and
its subsidiaries or alleging fraudulent transfer claims. The court
issued an order dated May 3, 2001, which was modified on January
22, 2002, under which the court stayed all the filed or pending
asbestos actions against us and, upon filing and service on us,
all future asbestos actions. No further proceedings involving us
can occur in the actions that have been stayed except upon further
order of the Bankruptcy Court.
Committees appointed to represent asbestos claimants in Grace's
bankruptcy case received the court's permission to pursue
fraudulent transfer and other claims against the Company and its
subsidiary Cryovac, Inc., and against Fresenius. The claims
against Fresenius are based upon a 1996 transaction between
Fresenius and W. R. Grace & Co. - Conn. Fresenius is not
affiliated with us. In March 2002, the court ordered that the
issues of the solvency of Grace following the Cryovac transaction
and whether Grace received reasonably equivalent value in the
Cryovac transaction would be tried on behalf of all of Grace's
creditors. This proceeding was brought in the U.S. District Court
for the District of Delaware (the "District Court") (Adv. No. 02-
02210).
In June 2002, the court permitted the U.S. government to intervene
as a plaintiff in the fraudulent transfer proceeding, so that the
U.S. government could pursue allegations that environmental
remediation expenses were underestimated or omitted in the
solvency analyses of Grace conducted at the time of the Cryovac
transaction. The court also permitted Grace, which asserted that
the Cryovac transaction was not a fraudulent transfer, to
intervene in the proceeding. In July 2002, the court issued an
interim ruling on the legal standards to be applied in the trial,
holding, among other things, that, subject to specified
limitations, post-1998 claims should be considered in the solvency
analysis of Grace. We believe that only claims and liabilities
that were known, or reasonably should have been known, at the time
of the 1998 Cryovac transaction should be considered under the
applicable standard.
With the fraudulent transfer trial set to commence on December 9,
2002, on November 27, 2002, we reached an agreement in principle
with the Committees prosecuting the claims against the Company and
Cryovac, Inc., to resolve all current and future asbestos-related
claims arising from the Cryovac transaction. On the same day, the
court entered an order confirming that the parties had reached an
amicable resolution of the disputes among the parties and that
counsel for us and the Committees had agreed and bound the parties
to the terms of the agreement in principle. The agreement in
principle called for payment of nine million shares of our common
stock and $513 million in cash, plus interest on the cash payment
at a 5.5% annual rate starting on December 21, 2002 and ending on
the effective date of an appropriate plan of reorganization in the
Grace bankruptcy, when we are required to make the payment. These
shares are subject to customary anti-dilution provisions that
adjust for the effects of stock splits, stock dividends and other
events affecting our common stock, and as a result, the number of
shares of our common stock that we will issue increased to
eighteen million shares upon the two-for-one stock split in March
2007. On December 3, 2002, the Company's Board of Directors
approved the agreement in principle. We received notice that both
of the Committees had approved the agreement in principle as of
December 5, 2002. The parties subsequently signed the definitive
Settlement agreement as of November 10, 2003 consistent with the
terms of the agreement in principle. On November 26, 2003, the
parties jointly presented the definitive Settlement agreement to
the District Court for approval. On Grace's motion to the District
Court, that court transferred the motion to approve the Settlement
agreement to the Bankruptcy Court for disposition.
On June 27, 2005, the Bankruptcy Court signed an order approving
the Settlement agreement. Although Grace is not a party to the
Settlement agreement, under the terms of the order, Grace is
directed to comply with the Settlement agreement subject to
limited exceptions. The order also provides that the Court will
retain jurisdiction over any dispute involving the interpretation
or enforcement of the terms and provisions of the Settlement
agreement. We expect that the Settlement agreement will become
effective upon Grace's emergence from bankruptcy pursuant to a
plan of reorganization that is consistent with the terms of the
Settlement agreement.
On June 8, 2004, we filed a motion with the District Court, where
the fraudulent transfer trial was pending, requesting that the
court vacate the July 2002 interim ruling on the legal standards
to be applied relating to the fraudulent transfer claims against
us. We were not challenging the Settlement agreement. The motion
was filed as a protective measure in the event that the Settlement
agreement is ultimately not approved or implemented; however, we
still expect that the Settlement agreement will become effective
upon Grace's emergence from bankruptcy with a plan of
reorganization that is consistent with the terms of the Settlement
agreement.
On July 11, 2005, the Bankruptcy Court entered an order closing
the proceeding brought in 2002 by the committees appointed to
represent asbestos claimants in the Grace bankruptcy proceeding
against us without prejudice to our right to reopen the matter and
renew in our sole discretion our motion to vacate the July 2002
interim ruling on the legal standards to be applied relating to
the fraudulent transfer claims against us. As a condition to our
obligation to make the payments required by the Settlement
agreement, any final plan of reorganization must be consistent
with the terms of the Settlement agreement, including provisions
for the trusts and releases and for an injunction barring the
prosecution of any asbestos-related claims against us. The
Settlement agreement provides that, upon the effective date of the
final plan of reorganization and payment of the shares and cash,
all present and future asbestos-related claims against us that
arise from alleged asbestos liabilities of Grace and its
affiliates (including former affiliates that became our affiliates
through the Cryovac transaction) will be channeled to and become
the responsibility of one or more trusts to be established under
Section 524(g) of the Bankruptcy Code as part of a final plan of
reorganization in the Grace bankruptcy. The Settlement agreement
will also resolve all fraudulent transfer claims against us
arising from the Cryovac transaction as well as the Fresenius
claims. The Settlement agreement provides that we will receive
releases of all those claims upon payment. Under the agreement, we
cannot seek indemnity from Grace for our payments required by the
Settlement agreement. The order approving the Settlement agreement
also provides that the stay of proceedings involving us will
continue through the effective date of the final plan of
reorganization, after which, upon implementation of the Settlement
agreement, we will be released from the liabilities asserted in
those proceedings and their continued prosecution against us will
be enjoined.
In January 2005, Grace filed a proposed plan of reorganization
(the "Grace Plan") with the Bankruptcy Court. There were a number
of objections filed. The Official Committee of Asbestos Personal
Injury Claimants (the "ACC") and the Asbestos PI Future Claimants'
Representative (the "PI FCR") filed their proposed plan of
reorganization (the "Claimants' Plan") with the Bankruptcy Court
in November 2007. On April 7, 2008, Grace issued a press release
announcing that Grace, the ACC, the PI FCR, and the Official
Committee of Equity Security Holders (the "Equity Committee") had
reached an agreement in principle to settle all present and future
asbestos-related personal injury claims against Grace (the "PI
Settlement") and disclosed a term sheet outlining certain terms of
the PI Settlement and for a contemplated plan of reorganization
that would incorporate the PI Settlement (as filed and amended
from time to time, the "PI Settlement Plan").
On September 19, 2008, Grace, the ACC, the PI FCR, and the Equity
Committee filed, as co-proponents, the PI Settlement Plan and
several exhibits and associated documents, including a disclosure
statement (as filed and amended from time to time, the "PI
Settlement Disclosure Statement"), with the Bankruptcy Court.
Amended versions of the PI Settlement Plan and the PI Settlement
Disclosure Statement have been filed with the Bankruptcy Court
from time to time. The PI Settlement Plan, which supersedes each
of the Grace Plan and the Claimants' Plan, remains pending and has
not become effective. The committee representing general unsecured
creditors and the Official Committee of Asbestos Property Damage
Claimants are not co-proponents of the PI Settlement Plan. As
filed, the PI Settlement Plan would provide for the establishment
of two asbestos trusts under Section 524(g) of the United States
Bankruptcy Code to which present and future asbestos-related
claims would be channeled. The PI Settlement Plan also
contemplates that the terms of the Settlement agreement will be
incorporated into the PI Settlement Plan and that we will pay the
amount contemplated by the Settlement agreement. On March 9, 2009,
the Bankruptcy Court entered an order approving the PI Settlement
Disclosure Statement (the "DS Order") as containing adequate
information and authorizing Grace to solicit votes to accept or
reject the PI Settlement Plan. The DS Order did not constitute the
Bankruptcy Court's confirmation of the PI Settlement Plan,
approval of the merits of the PI Settlement Plan, or endorsement
of the PI Settlement Plan. In connection with the plan voting
process in the Grace bankruptcy case, we voted in favor of the PI
Settlement Plan that was before the Bankruptcy Court. We will
continue to review any amendments to the PI Settlement Plan on an
ongoing basis to verify compliance with the Settlement agreement.
On June 8, 2009, a senior manager with the voting agent appointed
in the Grace bankruptcy case filed a declaration with the
Bankruptcy Court certifying the voting results with respect to the
PI Settlement Plan. This declaration was amended on August 5, 2009
(as amended, the "Voting Declaration"). According to the Voting
Declaration, with respect to each class of claims designated as
impaired by Grace, the PI Settlement Plan was approved by holders
of at least two-thirds in amount and more than one-half in number
(or for classes voting for purposes of Section 524(g) of the
Bankruptcy Code, at least 75% in number) of voted claims. The
Voting Declaration also discusses the voting results with respect
to holders of general unsecured claims ("GUCs") against Grace,
whose votes were provisionally solicited and counted subject to a
determination by the Bankruptcy Court of whether GUCs are impaired
(and, thus, entitled to vote) or, as Grace contends, unimpaired
(and, thus, not entitled to vote). According to the Voting
Declaration, more than one half of voting holders of GUCs voted to
accept the PI Settlement Plan, but the provisional vote did not
obtain the requisite two-thirds dollar amount to be deemed an
accepting class in the event that GUCs are determined to be
impaired. To the extent that GUCs are determined to be an impaired
non-accepting class, Grace and the other plan proponents have
indicated that they would nevertheless seek confirmation of the PI
Settlement Plan under the "cram down" provisions contained in
Section 1129(b) of the Bankruptcy Code.
On January 31, 2011, the Bankruptcy Court entered a memorandum
opinion (as amended, the "Bankruptcy Court Opinion") overruling
certain objections to the PI Settlement Plan and finding, among
other things, that GUCs are not impaired under the PI Settlement
Plan. On the same date, the Bankruptcy Court entered an order
regarding confirmation of the PI Settlement Plan (as amended, the
"Bankruptcy Court Confirmation Order"). As entered on January 31,
2011, the Bankruptcy Court Confirmation Order contained
recommended findings of fact and conclusions of law, and
recommended that the District Court approve the Bankruptcy Court
Confirmation Order, and that the District Court confirm the PI
Settlement Plan and issue a channeling injunction under Section
524(g) of the Bankruptcy Code. Thereafter, on February 15, 2011,
the Bankruptcy Court issued an order clarifying the Bankruptcy
Court Opinion and the Bankruptcy Court Confirmation Order (the
"Clarifying Order"). Among other things, the Clarifying Order
provided that any references in the Bankruptcy Court Opinion and
the Bankruptcy Court Confirmation Order to a recommendation that
the District Court confirm the PI Settlement Plan were thereby
amended to make clear that the PI Settlement Plan was confirmed
and that the Bankruptcy Court was requesting that the District
Court issue and affirm the Bankruptcy Court Confirmation Order
including the injunction under Section 524(g) of the Bankruptcy
Code. On March 11, 2011, the Bankruptcy Court entered an order
granting in part and denying in part a motion to reconsider the
Bankruptcy Court Opinion filed by BNSF Railway Company (the "March
11 Order"). Among other things, the March 11 Order amended the
Bankruptcy Court Opinion to clarify certain matters relating to
objections to the PI Settlement Plan filed by BNSF.
Various parties appealed or otherwise challenged the Bankruptcy
Court Opinion and the Bankruptcy Court Confirmation Order,
including without limitation with respect to issues relating to
releases and injunctions contained in the PI Settlement Plan. On
June 28 and 29, 2011, the District Court heard oral arguments in
connection with appeals of the Bankruptcy Court Opinion and the
Bankruptcy Court Confirmation Order.
On January 30, 2012, the District Court issued a memorandum
opinion (the "Original District Court Opinion") and confirmation
order (the "Original District Court Confirmation Order")
overruling all objections to the PI Settlement Plan and confirming
the PI Settlement Plan in its entirety (including the issuance of
the injunction under Section 524(g) of the Bankruptcy Code). On
February 3, 2012, Garlock Sealing Technologies LLC ("Garlock")
filed a motion (the "Garlock Reargument Motion") with the District
Court requesting that the District Court grant reargument,
rehearing, or otherwise amend the Original District Court Opinion
and the Original District Court Confirmation Order insofar as they
overruled Garlock's objections to the PI Settlement Plan. On
February 13, 2012, the Company, Cryovac, and Fresenius Medical
Care Holdings, Inc. filed a joint motion (the "Sealed
Air/Fresenius Motion") with the District Court. The Sealed
Air/Fresenius Motion did not seek to disturb confirmation of the
PI Settlement Plan but requested that the District Court amend and
clarify certain matters in the Original District Court Opinion and
the Original District Court Confirmation Order.
Also on February 13, 2012, Grace and the other proponents of the
PI Settlement Plan filed a motion (the "Plan Proponents' Motion")
with the District Court requesting certain of the same amendments
and clarifications sought by the Sealed Air/Fresenius Motion. On
February 27, 2012, certain asbestos claimants known as the "Libby
Claimants" filed a response to the Sealed Air/Fresenius Motion and
the Plan Proponents' Motion (the "Libby Response"). The Libby
Response did not oppose the Sealed Air/Fresenius Motion or the
Plan Proponents' Motion but indicated, among other things, that:
(a) the Libby Claimants had reached a settlement in principle of
their objections to the PI Settlement Plan but that this
settlement had not become effective and (b) the Libby Claimants
reserved their rights with respect to the PI Settlement Plan
pending the effectiveness of the Libby Claimants' settlement. On
April 20, 2012, as part of a more global settlement, Grace filed a
motion with the Bankruptcy Court seeking, among other things,
approval of settlements with the Libby Claimants and BNSF. The
settlements with the Libby Claimants and BNSF were approved by
order of the Bankruptcy Court dated June 6, 2012. Thereafter, the
appeals of the Libby Claimants and BNSF with respect to the PI
Settlement Plan were dismissed by orders of the United States
Court of Appeals for the Third Circuit (the "Third Circuit Court
of Appeals") dated September 24, 2012 and October 4, 2012. The
District Court held a hearing on May 8, 2012, to consider the
Garlock Reargument Motion. On May 29, 2012, Anderson Memorial
Hospital ("Anderson Memorial") filed a motion seeking relief from,
and reconsideration of, the Original District Court Opinion and
the Original District Court Confirmation Order (the "Anderson
Relief Motion"). In the Anderson Relief Motion, Anderson Memorial
argued that a May 18, 2012, decision by the Third Circuit Court of
Appeals in a case called Wright v. Owens-Corning undermined the
District Court's conclusion that (a) the PI Settlement Plan was
feasible and (b) the asbestos property damage injunction and trust
included in the PI Settlement Plan were appropriate. Objections to
the Anderson Relief Motion were filed by Grace and the other
proponents of the PI Settlement Plan, and by the representative of
future asbestos property damage claimants appointed in the Grace
bankruptcy proceedings. On June 11, 2012, the District Court
entered a consolidated order (the "Consolidated Order") granting
the Sealed Air/Fresenius Motion, the Plan Proponents' Motion, and
the Garlock Reargument Motion, and providing for amendments to the
Original District Court Opinion and the Original District Court
Confirmation Order. Although the Consolidated Order granted the
Garlock Reargument Motion, it did not constitute the District
Court's agreement with Garlock's objections to the PI Settlement
Plan, which the District Court continued to overrule. Also on June
11, 2012, the District Court entered an amended memorandum opinion
(the "Amended District Court Opinion") and confirmation order (the
"Amended District Court Confirmation Order") overruling all
objections to the PI Settlement Plan, reflecting amendments in the
Consolidated Order, and confirming the PI Settlement Plan in its
entirety (including the issuance of the injunction under Section
524(g) of the Bankruptcy Code). Thereafter, on July 23, 2012, the
District Court issued a memorandum opinion and an order denying
the Anderson Relief Motion.
Parties have appealed the Amended District Court Opinion and the
Amended District Court Confirmation Order to the Third Circuit
Court of Appeals. Parties have filed briefs in connection with the
appeals, and the Third Circuit Court of Appeals heard oral
arguments with respect to the appeals on June 17, 2013. The Third
Circuit Court of Appeals took these matters under advisement. On
July 24, 2013, the Third Circuit Court of Appeals entered an
opinion and a judgment relating to Garlock's appeals (the "Third
Circuit Garlock Opinion & Judgment") affirming the District
Court's decision to overrule Garlock's objections to the PI
Settlement Plan. The Third Circuit Garlock Opinion & Judgment does
not rule on the appeals of parties other than Garlock. We do not
know when the Third Circuit Court of Appeals will rule on the non-
Garlock appeals. While Grace has in the past indicated that, with
an appeals process before the Third Circuit Court of Appeals, its
target date to emerge from bankruptcy was the fourth quarter of
2013, we cannot make assurances that this timing for emergence is
or will be correct or that the target date for Grace's emergence
has not been or will not be revised.
Consistent with our Settlement agreement, we are prepared to pay
the Settlement amount directly to the asbestos trusts to be
established under section 524(g) of the Bankruptcy Code once the
conditions of the Settlement agreement are fully satisfied. Among
those conditions is that approval of an appropriate Grace
bankruptcy plan -- containing all releases, injunctions, and
protections required by the Settlement agreement -- be final and
not subject to any appeal. Given the pending appeals (which
include, without limitation, challenges to injunctions and
releases in the PI Settlement Plan), the condition that approval
of the PI Settlement Plan be final and not subject to any appeal
has not been satisfied at this time. The Company has not waived
this or any other condition of the Settlement agreement nor can
there be any assurance that each of the parties whose consent or
waiver is required for Grace to emerge from bankruptcy while the
appeals are pending will provide such consent or waiver. Although
we are optimistic that, if it were to become effective, the PI
Settlement Plan would implement the terms of the Settlement
agreement, we can give no assurance that this will be the case
notwithstanding the confirmation of the PI Settlement Plan by the
Bankruptcy Court and the District Court. The terms of the PI
Settlement Plan remain subject to amendment. Moreover, the PI
Settlement Plan is subject to the satisfaction of a number of
conditions which are more fully set forth in the PI Settlement
Plan and include, without limitation, the availability of exit
financing and the approval of the PI Settlement Plan becoming
final and no longer subject to appeal. Parties have appealed the
Amended District Court Confirmation Order to the Third Circuit
Court of Appeals or have otherwise challenged the Amended District
Court Opinion and the Amended District Court Confirmation Order.
Matters relating to the PI Settlement Plan, the Bankruptcy and
Amended District Court Opinions, and the Bankruptcy and Amended
District Court Confirmation Orders may be subject to further
appeal, challenge, and proceedings before the District Court, the
Third Circuit Court of Appeals, or other courts. Parties have
challenged various issues with respect to the PI Settlement Plan,
the Bankruptcy and Amended District Court Opinions, and the
Bankruptcy and Amended District Court Confirmation Orders,
including, without limitation, issues relating to releases and
injunctions contained in the PI Settlement Plan.
Sealed Air Corporation is engaged in food safety and security,
facility hygiene and product protection business. The Company
serves a range of end markets, including food and beverage
processing, food service, retail, health care and industrial,
commercial and consumer applications. The Company's brands include
bubbles Wrap brand cushioning, Cryovac brand food packaging
solutions and Diversey brand cleaning and hygiene solutions. The
Company operates in four segments: food and beverage,
institutional and laundry and protective packaging, and other
category, which includes its medical applications and new venture
businesses. On November 14, 2012, the Company completed the sale
Diversey G.K. (Diversey Japan).
ASBESTOS UPDATE: AMETEK Inc. Continues to Defend Fibro Lawsuits
---------------------------------------------------------------
AMETEK, Inc., 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 June 30, 2013.
The Company (including its subsidiaries) has been named as a
defendant, along with many other companies, in a number of
asbestos-related lawsuits. Many of these lawsuits either relate to
businesses which were acquired by the Company and do not involve
products which were manufactured or sold by the Company or relate
to previously owned businesses of the Company which are under new
ownership. In connection with many of these lawsuits, the sellers
or new owners of such businesses, as the case may be, have agreed
to indemnify the Company against these claims (the "Indemnified
Claims"). The Indemnified Claims have been tendered to, and are
being defended by, such sellers and new owners. These sellers and
new owners have met their obligations, in all respects, and the
Company does not have any reason to believe such parties would
fail to fulfill their obligations in the future; however, one of
these companies filed for bankruptcy liquidation in 2007. To date,
no judgments have been rendered against the Company as a result of
any asbestos-related lawsuit. The Company believes it has strong
defenses to the claims being asserted and intends to continue to
vigorously defend itself in these matters.
AMETEK, Inc. (AMETEK), is a global manufacturer of electronic
instruments and electromechanical devices with operations in North
America, Europe, Asia and South America. The Company markets its
products worldwide through two groups: the Electronic Instruments
Group (EIG) and the Electromechanical Group (EMG). EIG builds
monitoring, testing, calibration and display devices for the
process, aerospace, industrial, power and medical markets. EMG
produces engineered electromechanical connectors for hermetic
(moisture-proof) applications, specialty metals for niche markets
and brushless air-moving motors, blowers and heat exchangers. End
markets include aerospace, defense, mass transit, medical, office
products and other industrial markets. In April 2011, the Company
acquired Avicenna Technology, Inc. (Avicenna). In August 2013,
Ametek Inc acquired Controls Southeast, Inc.
ASBESTOS UPDATE: MetLife Received 3,129 Fibro Claims at June 30
---------------------------------------------------------------
MetLife, Inc., received approximately 3,129 new 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
June 30, 2013.
MLIC is and has been a defendant in a large number of asbestos-
related suits filed primarily in state courts. These suits
principally allege that the plaintiff or plaintiffs suffered
personal injury resulting from exposure to asbestos and seek both
actual and punitive damages. MLIC has never engaged in the
business of manufacturing, producing, distributing or selling
asbestos or asbestos-containing products nor has MLIC issued
liability or workers' compensation insurance to companies in the
business of manufacturing, producing, distributing or selling
asbestos or asbestos-containing products. The lawsuits principally
have focused on allegations with respect to certain research,
publication and other activities of one or more of MLIC's
employees during the period from the 1920's through approximately
the 1950's and allege that MLIC learned or should have learned of
certain health risks posed by asbestos and, among other things,
improperly publicized or failed to disclose those health risks.
MLIC believes that it should not have legal liability in these
cases. The outcome of most asbestos litigation matters, however,
is uncertain and can be impacted by numerous variables, including
differences in legal rulings in various jurisdictions, the nature
of the alleged injury and factors unrelated to the ultimate legal
merit of the claims asserted against MLIC. MLIC employs a number
of resolution strategies to manage its asbestos loss exposure,
including seeking resolution of pending litigation by judicial
rulings and settling individual or groups of claims or lawsuits
under appropriate circumstances.
Claims asserted against MLIC have included negligence, intentional
tort and conspiracy concerning the health risks associated with
asbestos. MLIC's defenses (beyond denial of certain factual
allegations) include that: (i) MLIC owed no duty to the plaintiffs
-- it had no special relationship with the plaintiffs and did not
manufacture, produce, distribute or sell the asbestos products
that allegedly injured plaintiffs; (ii) plaintiffs did not rely on
any actions of MLIC; (iii) MLIC's conduct was not the cause of the
plaintiffs' injuries; (iv) plaintiffs' exposure occurred after the
dangers of asbestos were known; and (v) the applicable time with
respect to filing suit has expired. During the course of the
litigation, certain trial courts have granted motions dismissing
claims against MLIC, while other trial courts have denied MLIC's
motions to dismiss. There can be no assurance that MLIC will
receive favorable decisions on motions in the future. While most
cases brought to date have settled, MLIC intends to continue to
defend aggressively against claims based on asbestos exposure,
including defending claims at trials.
As reported in the 2012 Annual Report, MLIC received approximately
5,303 asbestos-related claims in 2012. During the six months ended
June 30, 2013 and 2012, MLIC received approximately 3,129 and
2,491 new asbestos-related claims, respectively. The number of
asbestos cases that may be brought, the aggregate amount of any
liability that MLIC may incur, and the total amount paid in
settlements in any given year are uncertain and may vary
significantly from year to year.
The ability of MLIC to estimate its ultimate asbestos exposure is
subject to considerable uncertainty, and the conditions impacting
its liability can be dynamic and subject to change. The
availability of reliable data is limited and it is difficult to
predict the numerous variables that can affect liability
estimates, including the number of future claims, the cost to
resolve claims, the disease mix and severity of disease in pending
and future claims, the impact of the number of new claims filed in
a particular jurisdiction and variations in the law in the
jurisdictions in which claims are filed, the possible impact of
tort reform efforts, the willingness of courts to allow plaintiffs
to pursue claims against MLIC when exposure to asbestos took place
after the dangers of asbestos exposure were well known, and the
impact of any possible future adverse verdicts and their amounts.
The ability to make estimates regarding ultimate asbestos exposure
declines significantly as the estimates relate to years further in
the future. In the Company's judgment, there is a future point
after which losses cease to be probable and reasonably estimable.
It is reasonably possible that the Company's total exposure to
asbestos claims may be materially greater than the asbestos
liability currently accrued and that future charges to income may
be necessary. While the potential future charges could be material
in the particular quarterly or annual periods in which they are
recorded, based on information currently known by management,
management does not believe any such charges are likely to have a
material effect on the Company's financial position.
The Company believes adequate provision has been made in its
consolidated financial statements for all probable and reasonably
estimable losses for asbestos-related claims. MLIC's recorded
asbestos liability is based on its estimation of the following
elements, as informed by the facts presently known to it, its
understanding of current law and its past experiences: (i) the
probable and reasonably estimable liability for asbestos claims
already asserted against MLIC, including claims settled but not
yet paid; (ii) the probable and reasonably estimable liability for
asbestos claims not yet asserted against MLIC, but which MLIC
believes are reasonably probable of assertion; and (iii) the legal
defense costs associated with the foregoing claims. Significant
assumptions underlying MLIC's analysis of the adequacy of its
recorded liability with respect to asbestos litigation include:
(i) the number of future claims; (ii) the cost to resolve claims;
and (iii) the cost to defend claims.
MLIC reevaluates on a quarterly and annual basis its exposure from
asbestos litigation, including studying its claims experience,
reviewing external literature regarding asbestos claims experience
in the U.S., assessing relevant trends impacting asbestos
liability and considering numerous variables that can affect its
asbestos liability exposure on an overall or per claim basis.
These variables include bankruptcies of other companies involved
in asbestos litigation, legislative and judicial developments, the
number of pending claims involving serious disease, the number of
new claims filed against it and other defendants and the
jurisdictions in which claims are pending. Based upon its regular
reevaluation of its exposure from asbestos litigation, MLIC has
updated its liability analysis for asbestos-related claims through
June 30, 2013.
MetLife, Inc. (MetLife) is a provider of insurance, annuities and
employee benefit programs. Through its subsidiaries and
affiliates, MetLife operates in the United States, Japan, Latin
America, Asia Pacific, Europe and the Middle East. It is organized
into six segments: Insurance Products, Retirement Products,
Corporate Benefit Funding and Auto & Home (collectively, U.S.
Business), and Japan and Other International Regions
(collectively, International). In addition, the Company reports
certain of its results of operations in Corporate & Other. U.S.
Business provides insurance and financial services products,
including life, dental, disability, auto and homeowner insurance,
guaranteed interest and stable value products, and annuities
through independent retail distribution channels. In January 2013,
it completed the sale of MetLife Bank, N.A.'s deposit business.
Effective July 25, 2013, MetLife Inc acquired Broadstone Laurel
Highlands, from Alliance Residential Fund I.
ASBESTOS UPDATE: "Take-Home" Suit v. ACE Remains Pending in NJ
--------------------------------------------------------------
An asbestos "take-home" lawsuit against Atlantic City Electric
Company remains pending in New Jersey, according to the Company's
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarterly period ended June 30, 2013.
In September 2011, an asbestos complaint was filed in the New
Jersey Superior Court, Law Division, against Atlantic City
Electric Company asserting claims under New Jersey's Wrongful
Death and Survival statutes. The complaint, filed by the estate of
a decedent who was the wife of a former employee of ACE, alleges
that the decedent's mesothelioma was caused by exposure to
asbestos brought home by her husband on his work clothes. New
Jersey courts have recognized a cause of action against a premise
owner in a so-called "take home" case if it can be shown that the
harm was foreseeable. In this case, the complaint seeks recovery
of an unspecified amount of damages for, among other things, the
decedent's past medical expenses, loss of earnings, and pain and
suffering between the time of injury and death, and asserts a
punitive damage claim. At this time, ACE has concluded that a loss
is reasonably possible with respect to this matter, but ACE was
unable to estimate an amount or range of reasonably possible loss
because (i) the damages sought are indeterminate, (ii) the
proceedings are in the early stages, and (iii) the matter involves
facts that ACE believes are distinguishable from the facts of the
"take-home" cause of action recognized by the New Jersey courts.
This case remains pending.
Pepco Holdings, Inc. (PHI) is a holding company, that, through
regulated public utility subsidiaries, is engaged primarily in the
transmission, distribution and default supply of electricity and
the distribution and supply of natural gas (Power Delivery):
Potomac Electric Power Company (Pepco), Delmarva Power & Light
Company (DPL) and Atlantic City Electric Company (ACE). As of
December 31, 2012, the Company segments include Power Delivery,
consisting of the operations of Pepco, DPL and ACE, engaged in the
transmission, distribution and default supply of electricity and
the distribution and supply of natural gas, Pepco Energy Services
and Other Non-Regulated, consisting primarily of the operations of
PCI. PHI Service Company, a subsidiary service company of PHI,
provides a range of support services, including legal, accounting,
treasury, tax, purchasing and information technology services, to
PHI and its operating subsidiaries.
ASBESTOS UPDATE: Transocean Continues to Defend Exposure Lawsuits
-----------------------------------------------------------------
Transocean Ltd. continues to defend itself against lawsuits
claiming injuries arising out of exposure to asbestos allegedly
contained in drilling mud, according to the Company's Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarterly period ended June 30, 2013.
The Company states: "In 2004, several of our subsidiaries were
named, along with numerous other unaffiliated defendants, in 21
complaints filed on behalf of 769 plaintiffs in the Circuit Courts
of the State of Mississippi and which claimed injuries arising out
of exposure to asbestos allegedly contained in drilling mud during
these plaintiffs' employment in drilling activities between 1965
and 1986. Each individual plaintiff was subsequently required to
file a separate lawsuit, and the original 21 multi-plaintiff
complaints were then dismissed by the Circuit Courts. We have or
may have an indirect interest in a total of 22 cases. The
complaints generally allege that the defendants used or
manufactured asbestos-containing drilling mud additives for use in
connection with drilling operations and have included allegations
of negligence, products liability, strict liability and claims
allowed under the Jones Act and general maritime law. The
plaintiffs generally seek awards of unspecified compensatory and
punitive damages. In each of these cases, the complaints have
named other unaffiliated defendant companies, including companies
that allegedly manufactured the drilling-related products that
contained asbestos. All of these cases are being governed for
discovery and trial setting by a single Case Management Order
entered by a Special Master appointed by the court to reside over
all the cases, and of the 17 cases in which we are a named
defendant, only one has been scheduled for trial and pre-trial
discovery, which was scheduled to take place in 2013. In that
case, we recently were able to present a variety of pre-trial
defense motions challenging the plaintiff's evidence and resulting
in a negotiated settlement for a nominal sum in the first quarter
of 2013. In 2011, the Special Master issued a ruling that a Jones
Act employer defendant, such as us, cannot be sued for punitive
damages, and this ruling has now been obtained in three of our 17
cases. To date, seven of the 769 cases have gone to trial against
defendants who allegedly manufactured or distributed drilling mud
additives. None of these cases have involved an individual Jones
Act employer, and we have not been a defendant in any of these
cases. Two of the cases resulted in defense verdicts, and one case
ended with a hung jury. Four cases resulted in verdicts for the
plaintiff. Because the jury awarded punitive damages, two of these
cases resulted in a substantial verdict in favor of the plaintiff;
however, the trial court has since vacated both of these verdicts.
The first plaintiff verdict was vacated on the basis that the
plaintiff failed to meet its burden of proof. While the court's
decision is consistent with our general evaluation of the strength
of these cases, it is currently being reviewed on appeal. The
second plaintiff verdict was vacated because the presiding judge
was removed from hearing any asbestos cases due to a conflict of
interest, but when this case ultimately went to trial earlier this
year, it resulted in a defense verdict. The two remaining
plaintiff verdicts are under appeal by the defendants. We intend
to defend these lawsuits vigorously, although we can provide no
assurance as to the outcome. We historically have maintained broad
liability insurance, although we are not certain whether insurance
will cover the liabilities, if any, arising out of these claims.
Based on our evaluation of the exposure to date, we do not expect
the liability, if any, resulting from these claims to have a
material adverse effect on our consolidated statement of financial
position, results of operations or cash flows."
Transocean Ltd. (Transocean) is an international provider of
offshore contract drilling services for oil and gas wells. The
Company operates in two segments: contract drilling services and
drilling management services. Contract drilling services, the
Company's primary business, involves contracting its mobile
offshore drilling fleet, related equipment and work crews
primarily on a dayrate basis to drill oil and gas wells. Its
drilling management services segment provides oil and gas drilling
management services on either a dayrate basis or a completed-
project, fixed-price (or turnkey) basis, as well as drilling
engineering and drilling project management services. As of
February 14, 2012, it owned or had partial ownership interests in
and operated 134 mobile offshore drilling units. On October 4,
2011, the Company acquired Aker Drilling ASA (Aker Drilling). In
February 2011, it sold the subsidiary that owns the High-
Specification Jackup Trident 20.
ASBESTOS UPDATE: Transocean Unit Had 899 PI Suits at June 30
------------------------------------------------------------
Transocean Ltd.'s subsidiary is named defendant in approximately
899 asbestos-related personal injury lawsuits, according to the
Company's Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarterly period ended June 30, 2013.
The Company states: "One of our subsidiaries was involved in
lawsuits arising out of the subsidiary's involvement in the
design, construction and refurbishment of major industrial
complexes. The operating assets of the subsidiary were sold and
its operations discontinued in 1989, and the subsidiary has no
remaining assets other than the insurance policies involved in its
litigation, with its insurers and, either directly or indirectly
through a qualified settlement fund. The subsidiary has been named
as a defendant, along with numerous other companies, in lawsuits
alleging bodily injury or personal injury as a result of exposure
to asbestos. As of June 30, 2013, the subsidiary was a defendant
in approximately 889 lawsuits, some of which include multiple
plaintiffs, and we estimate that there are approximately 1,880
plaintiffs in these lawsuits. For many of these lawsuits, we have
not been provided with sufficient information from the plaintiffs
to determine whether all or some of the plaintiffs have claims
against the subsidiary, the basis of any such claims, or the
nature of their alleged injuries. The first of the asbestos-
related lawsuits was filed against the subsidiary in 1990. Through
June 30, 2013, the costs incurred to resolve claims, including
both defense fees and expenses and settlement costs, have not been
material, all known deductibles have been satisfied or are
inapplicable, and the subsidiary's defense fees and expenses and
settlement costs have been met by insurance made available to the
subsidiary. The subsidiary continues to be named as a defendant in
additional lawsuits, and we cannot predict the number of
additional cases in which it may be named a defendant nor can we
predict the potential costs to resolve such additional cases or to
resolve the pending cases. However, the subsidiary has in excess
of $1.0 billion in insurance limits potentially available to the
subsidiary. Although not all of the policies may be fully
available due to the insolvency of certain insurers, we believe
that the subsidiary will have sufficient funding directly or
indirectly from settlements and claims payments from insurers,
assigned rights from insurers and coverage-in-place settlement
agreements with insurers to respond to these claims. While we
cannot predict or provide assurance as to the outcome of these
matters, we do not believe that the ultimate liability, if any,
arising from these claims will have a material impact on our
consolidated statement of financial position, results of
operations or cash flows."
Transocean Ltd. (Transocean) is an international provider of
offshore contract drilling services for oil and gas wells. The
Company operates in two segments: contract drilling services and
drilling management services. Contract drilling services, the
Company's primary business, involves contracting its mobile
offshore drilling fleet, related equipment and work crews
primarily on a dayrate basis to drill oil and gas wells. Its
drilling management services segment provides oil and gas drilling
management services on either a dayrate basis or a completed-
project, fixed-price (or turnkey) basis, as well as drilling
engineering and drilling project management services. As of
February 14, 2012, it owned or had partial ownership interests in
and operated 134 mobile offshore drilling units. On October 4,
2011, the Company acquired Aker Drilling ASA (Aker Drilling). In
February 2011, it sold the subsidiary that owns the High-
Specification Jackup Trident 20.
ASBESTOS UPDATE: Huntington Ingalls Continues to Defend Suits
-------------------------------------------------------------
Huntington Ingalls Industries, Inc., continues to defend itselg
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 June 30, 2013.
HII and its predecessors-in-interest are defendants in a
longstanding series of cases filed in numerous jurisdictions
around the country, wherein former and current employees and
various third-party persons allege exposure to asbestos containing
materials while on or associated with HII premises or while
working on vessels constructed or repaired by HII. The cases
allege various injuries, including those associated with pleural
plaque disease, asbestosis, cancer, mesothelioma and other alleged
asbestos related conditions. In some cases, several of HII's
former executive officers are also named as defendants. In some
instances, partial or full insurance coverage is available to the
Company for its liability and that of its former executive
officers. Although the Company believes the ultimate resolution of
these cases will not have a material effect on its consolidated
financial position, results of operations or cash flows, it cannot
predict what new or revised claims or litigation might be asserted
or what information might come to light and can, therefore, give
no assurances regarding the ultimate outcome of asbestos related
litigation.
Huntington Ingalls Industries, Inc. (HII) owns and operates two
segments: Ingalls Shipbuilding and Newport News Shipbuilding.
Through the Company's Ingalls segment, it is a supplier and
builder of amphibious assault and expeditionary ships to the
United States Navy, the builder of National Security Cutters for
the United States Coast Guard, and one of the two companies that
builds the United States Navy's fleet of DDG-51 Arleigh Burke-
class destroyers. Through the Company's Newport News segment, it
is an industrial designer, builder, and refueler of nuclear-
powered aircraft carriers, and one of the two companies designing
and building nuclear-powered submarines for the United States
Navy. It is a full-service provider for the design, engineering,
construction, and life cycle support of surface ship programs for
the United States Navy. It conducts all of its business with the
United States Government, principally the Department of Defense.
ASBESTOS UPDATE: NL Industries Continues to Defend PI Lawsuits
--------------------------------------------------------------
NL Industries, Inc., continues to defend itself against lawsuits
alleging personal injuries as a result of occupational exposure to
asbestos-containing products, according to the Company's Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarterly period ended June 30,2013.
The Company states: "We have been named as a defendant in various
lawsuits in several jurisdictions, alleging personal injuries as a
result of occupational exposure primarily to products manufactured
by our former operations containing asbestos, silica and/or mixed
dust. In addition, some plaintiffs allege exposure to asbestos
from working in various facilities previously owned and/or
operated by us. There are 1,125 of these types of cases pending,
involving a total of approximately 1,643 plaintiffs. In addition,
the claims of approximately 8,298 plaintiffs have been
administratively dismissed or placed on the inactive docket in
Ohio, Indiana and Texas state courts. We do not expect these
claims will be re-opened unless the plaintiffs meet the courts'
medical criteria for asbestos-related claims. We have not accrued
any amounts for this litigation because of the uncertainty of
liability and inability to reasonably estimate the liability, if
any. To date, we have not been adjudicated liable in any of these
matters. Based on information available to us, including:
* facts concerning historical operations,
* the rate of new claims,
* the number of claims from which we have been dismissed, and
* our prior experience in the defense of these matters.
We believe that the range of reasonably possible outcomes of these
matters will be consistent with our historical costs (which are
not material). Furthermore, we do not expect any reasonably
possible outcome would involve amounts material to our
consolidated financial position, results of operations or
liquidity. We have sought and will continue to vigorously seek,
dismissal and/or a finding of no liability from each claim. In
addition, from time to time, we have received notices regarding
asbestos or silica claims purporting to be brought against former
subsidiaries, including notices provided to insurers with which we
have entered into settlements extinguishing certain insurance
policies. These insurers may seek indemnification from us. For a
discussion of other legal proceedings to which we are a party,
refer to our 2012 Annual Report.
We are involved in certain legal proceedings with a number of our
former insurance carriers regarding the nature and extent of the
carriers' obligations to us under insurance policies with respect
to certain lead pigment and asbestos lawsuits. The issue of
whether insurance coverage for defense costs or indemnity or both
will be found to exist for our lead pigment and asbestos
litigation depends upon a variety of factors and we cannot assure
you that such insurance coverage will be available.
We have agreements with three former insurance carriers pursuant
to which the carriers reimburse us for a portion of our future
lead pigment litigation defense costs, and one such carrier
reimburses us for a portion of our future asbestos litigation
defense costs. We are not able to determine how much we will
ultimately recover from these carriers for defense costs incurred
by us because of certain issues that arise regarding which defense
costs qualify for reimbursement. While we continue to seek
additional insurance recoveries, we do not know if we will be
successful in obtaining reimbursement for either defense costs or
indemnity. Accordingly, we recognize insurance recoveries in
income only when receipt of the recovery is probable and we are
able to reasonably estimate the amount of the recovery.
For a complete discussion of certain litigation involving us and
certain of our former insurance carriers, refer to our 2012 Annual
Report."
NL Industries, Inc. (NL) is a holding company. The Company
operates in the component products industry through its majority-
owned subsidiary, CompX International Inc. The Company operates in
the chemicals industry through its non-controlling interest in
Kronos Worldwide, Inc. As of December 31, 2011, it owned 87%
interest in CompX International Inc and 30% interest in Kronos
Worldwide, Inc. The Company also owns 100% of EWI RE, Inc., an
insurance brokerage and risk management services company. CompX is
a manufacturer of engineered components utilized in a variety of
applications and industries. Kronos is a global producer and
marketer of value-added titanium dioxide pigments. In July of
2011, CompX completed the acquisition of an ergonomic component
products business.
ASBESTOS UPDATE: Parker Drilling Had 15 PI Lawsuits as of June 30
-----------------------------------------------------------------
There were approximately 15 asbestos-related personal injury
lawsuits against Parker Drilling Company, according to the
Company's Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarterly period ended June 30, 2013.
The Company states: "We are from time to time a party to various
lawsuits in the ordinary course that are incidental to our
operations in which the claimants seek an unspecified amount of
monetary damages for personal injury, including injuries
purportedly resulting from exposure to asbestos on drilling rigs
and associated facilities. At June 30, 2013, there were
approximately 15 of these lawsuits in which we are one of many
defendants. These lawsuits have been filed in the United States in
the State of Mississippi.
We intend to defend ourselves vigorously and, based on the
information available to us at this time, we do not expect the
outcome to have a material adverse effect on our financial
condition, results of operations or cash flows. However, we are
unable to predict the ultimate outcome of these lawsuits. No
amounts were accrued at June 30, 2013."
Parker Drilling Company (Parker) is a provider of contract
drilling and drilling-related services. The Company operates in
six segments: Rental Tools, U.S. Barge Drilling, U.S. Drilling,
International Drilling, Technical Services and Construction
Contract. During year ended December 31, 2012, the Company
operates on 12 countries. The Company has operated in over 50
foreign countries and the United States. In April 2013, the
Company announced the acquisition of International Tubular
Services Limited and certain affiliates (ITS), subsidiaries of ITS
Tubular Services (Holdings) Limited.
ASBESTOS UPDATE: Scotts Miracle-Gro Continues to Defend PI Cases
----------------------------------------------------------------
The Scotts Miracle-Gro Company continues to defend itself against
a number of cases alleging injuries resulting from exposure to
asbestos-containing products, according to the Company's Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarterly period ended June 29, 2013.
The Company has been named as a defendant in a number of cases
alleging injuries that the lawsuits claim resulted from exposure
to asbestos-containing products, apparently based on the Company's
historic use of vermiculite in certain of its products. In many of
these cases, the complaints are not specific about the plaintiffs'
contacts with the Company or its products. The Company believes
that the claims against it are without merit and is vigorously
defending against them. It is not currently possible to reasonably
estimate a probable loss, if any, associated with these cases and,
accordingly, no reserves have been recorded in the Company's
Consolidated Financial Statements. The Company is reviewing
agreements and policies that may provide insurance coverage or
indemnity as to these claims and is pursuing coverage under some
of these agreements and policies, although there can be no
assurance of the results of these efforts. There can be no
assurance that these cases, whether as a result of adverse
outcomes or as a result of significant defense costs, will not
have a material effect on the Company's financial condition,
results of operations or cash flows.
The Scotts Miracle-Gro Company ("Scotts Miracle-Gro") and its
subsidiaries (collectively, together with Scotts Miracle-Gro, the
"Company") are engaged in the manufacturing, marketing and sale of
consumer branded products for lawn and garden care. The Company's
primary customers include home centers, mass merchandisers,
warehouse clubs, large hardware chains, independent hardware
stores, nurseries, garden centers and food and drug stores. The
Company's products are sold primarily in North America and the
European Union. The Company also operates the Scotts
LawnService(R) business, which provides residential and commercial
lawn care, tree and shrub care and limited pest control services
in the United States.
ASBESTOS UPDATE: Standard Motor Has 2,230 Exposure Cases
--------------------------------------------------------
Approximately 2,230 asbestos-related exposure cases were
outstanding against Standard Motor Products, Inc., according to
the Company's Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarterly period ended June 30, 2013.
The Company states: "In 1986, we acquired a brake business, which
we subsequently sold in March 1998 and which is accounted for as a
discontinued operation. When we originally acquired this brake
business, we assumed future liabilities relating to any alleged
exposure to asbestos-containing products manufactured by the
seller of the acquired brake business. In accordance with the
related purchase agreement, we agreed to assume the liabilities
for all new claims filed on or after September 2001. Our ultimate
exposure will depend upon the number of claims filed against us on
or after September 2001 and the amounts paid for indemnity and
defense thereof. At June 30, 2013, approximately 2,230 cases were
outstanding for which we may be responsible for any related
liabilities. Since inception in September 2001 through June 30,
2013, the amounts paid for settled claims are approximately $14.4
million. We acquired limited insurance coverage up to a fixed
amount for defense and indemnity costs associated with certain
asbestos-related claims and have exhausted all insurance coverage.
In evaluating our potential asbestos-related liability, we have
considered various factors including, among other things, an
actuarial study of the asbestos-related liabilities performed by
an independent actuarial firm, our settlement amounts and whether
there are any co-defendants, the jurisdiction in which lawsuits
are filed, and the status and results of settlement discussions.
As is our accounting policy, we consider the advice of actuarial
consultants with experience in assessing asbestos-related
liabilities to estimate our potential claim liability. The
methodology used to project asbestos-related liabilities and costs
in our actuarial study considered: (1) historical data available
from publicly available studies; (2) an analysis of our recent
claims history to estimate likely filing rates into the future;
(3) an analysis of our currently pending claims; and (4) an
analysis of our settlements to date in order to develop average
settlement values.
The most recent actuarial study was performed as of August 31,
2012. The updated study has estimated an undiscounted liability
for settlement payments, excluding legal costs and any potential
recovery from insurance carriers, ranging from $27.1 million to
$41.5 million for the period through 2058. The change from the
prior year study was a $0.4 million decrease for the low end of
the range and a $25 million decrease for the high end of the
range. The decrease in the estimated undiscounted liability from
the prior year study at both the low end and high end of the range
reflects our actual experience over the prior twelve months. Based
on the information contained in the actuarial study and all other
available information considered by us, we concluded that no
amount within the range of settlement payments was more likely
than any other and, therefore, recorded the low end of the range
as the liability associated with future settlement payments
through 2058 in our consolidated financial statements.
Accordingly, an incremental $0.4 million provision in our
discontinued operations was added to the asbestos accrual in
September 2012 increasing the reserve to approximately $27.1
million. According to the updated study, legal costs, which are
expensed as incurred and reported in earnings (loss) from
discontinued operations in the accompanying statement of
operations, are estimated to range from $32.3 million to $57
million during the same period.
We plan to perform an annual actuarial evaluation during the third
quarter of each year for the foreseeable future. Given the
uncertainties associated with projecting such matters into the
future and other factors outside our control, we can give no
assurance that additional provisions will not be required. We will
continue to monitor the circumstances surrounding these potential
liabilities in determining whether additional provisions may be
necessary. At the present time, however, we do not believe that
any additional provisions would be reasonably likely to have a
material adverse effect on our liquidity or consolidated financial
position."
Standard Motor Products, Inc. (Standard Motor Products) is an
independent manufacturer and distributor of replacement parts for
motor vehicles in the automotive aftermarket industry, with a
focus on the original equipment service market. The Company
operates in two segments: Engine Management Segment, which
manufactures ignition and emission parts, ignition wires, battery
cables and fuel system parts, and Temperature Control Segment that
manufactures and remanufactures air conditioning compressors, air
conditioning and heating parts, engine cooling system parts, power
window accessories, and windshield washer system parts. In April
2011, the Company acquired the Engine Controls business of BLD
Products, Ltd. In October 2011, the Company acquired Forecast
Trading Corporation. The Company sells its products primarily to
warehouse distributors, retail chains, original equipment
manufacturers and original equipment service part operations in
the United States, Canada and Latin America.
ASBESTOS UPDATE: Joy Global Continues to Defend Fibro Cases
-----------------------------------------------------------
Joy Global Inc., continues to defend itself against various
unresolved legal matters the most prevalent of which relate to
product liability including approximately 2,900 asbestos and
silica-related cases, according to the Company's Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarterly
period ended July 26, 2013.
The Company states: "We and our subsidiaries are involved in
various unresolved legal matters that arise in the normal course
of operations, the most prevalent of which relate to product
liability (including approximately 2,900 asbestos and silica-
related cases), employment, and commercial matters. Also, as a
normal part of operations, our subsidiaries undertake contractual
obligations, warranties, and guarantees in connection with the
sale of products or services. Although the outcome of these
matters cannot be predicted with certainty and favorable or
unfavorable resolutions may affect our results of operations on a
quarter-to-quarter basis, we believe that the outcome of such
legal and other matters will not have a materially adverse effect
on our consolidated financial position, results of operations, or
liquidity."
Joy Global Inc., is a manufacturer and servicer of high
productivity mining equipment for the extraction of coal and other
minerals and ores. The Company's equipment is used in mining
regions throughout the world to mine coal, copper, iron ore, oil
sands, and other minerals. The Company's underground mining
machinery segment (Joy Mining Machinery) is a manufacturer of
underground mining equipment for the extraction of coal and other
bedded minerals and offers service locations near mining regions
worldwide. The Company's surface mining equipment segment (P&H
Mining Equipment) is a producer of surface mining equipment for
the extraction of ores and minerals and provides operational
support for many types of equipment used in surface mining. During
the fiscal year ended October 28, 2011, the Company completed the
acquisition of LeTourneau. On December 30, 2011, it acquired
approximately 41.1% of Int'l Mining Machinery Holdings Limited's
common stock to 69.2%.
ASBESTOS UPDATE: "Smothers" Suit Remanded to Calif. Superior Court
------------------------------------------------------------------
Judge S. James Otero of the U.S. District Court for the Central
District of California issued an order dated Aug. 27, 2013,
remanding to the Superior Court for the State of California,
Central District, Stanley Mosk Courthouse, the asbestos-related
action titled CLYDE SMOTHERS, an individual; Plaintiff, v. 3M
COMPANY a/k/a MINNESOTA MINING & MANUFACTURING COMPANY; ASBESTOS
CORPORATION LIMITED; AIR & LIQUID SYSTEMS CORPORATION, a
subsidiary of AMPCO-PITTSBURGH CORPORATION, individually and as
successor by merger to BUFFALO PUMPS, INC., individually and as
successor in interest to BUFFALO FORGE COMPANY; ALFA LAVAL, INC.,
individually and as successor in interest to THE DELAVAL SEPARATOR
COMPANY and SHARPLES CORPORATION; AMERON INTERNATIONAL
CORPORATION, f/k/a BONDSTRAND individually and as successor in
interest to AMERON MERGER COMPANY and AMERON INC., AMERCOAT, INC.,
and AMERICAN PIPE AND CONSTRUCTION; AMETEK, INC., individually and
as successor in interest to HAVEG INDUSTRIES, INC. and HERCULES,
INC.; ANCHOR DARLING VALVE COMPANY; AURORA PUMP COMPANY; BECHTEL
CONSTRUCTION COMPANY; BECHTEL CORPORATION; BLACKMER PUMP COMPANY;
BW/IP INC., individually and as successor in interest to BYRON
JACKSON PUMP CO.; CARRIER CORPORATION, individually and as
successor in interest to BRYANT HEATING & COOLING SYSTEMS; CBS
CORPORATION f/k/a VIACOM, INC., successor by merger to CBS
CORPORATION f/k/a WESTINGHOUSE ELECTRIC CORPORATION as successor
in interest to BF STURTEVANT; CHAMPLAIN CABLE CORPORATION,
individually and as successor in interest to HERCULES INC.;
CHEVRON USA, INC., individually and as successor in interest to
TEXACO, INC.; CLEAVER-BROOKS, INC., individually and f/k/a AQUA-
CHEM, INC.; FOSTER WHEELER, LLC; DANA COMPANIES LLC, f/k/a and
individually and as successor in interest to VICTOR CORPORATION,
VICTOR GASKETS and VICTOR MANUFACTURING AND GASKET COMPANY;
ELEMENTIS CHEMICALS, INC. f/k/a HARCROS CHEMICALS, INC.
individually and as successor in interest to HARRISONS & CROSFIELD
(PACIFIC) INC.; ELLIOTT COMPANY, individually and as successor in
interest to ELLIOTT TURBO MacHINERY COMPANY, INC.; FISHER CONTROLS
INTERNATIONAL, LLC, individually and as successor in interest to
FISHER GOVERNOR COMPANY, FISHER CONTROLS COMPANY, and FISHER
CONTROLS INTERNATIONAL, INC.; FLOWSERVE US INC., individually and
as successor in interest to EDWARD VALVES, INC.; FLUOR
CORPORATION; FLUOR DANIEL ENGINEERING, INC.; FLUOR ENTERPRISES,
INC., individually and as successor in interest to FLUOR ENGINEERS
& CONSTRUCTORS, INC. and FLUOR DANIELS, INC.; FMC CORPORATION,
f/k/a CONSTRUCTION EQUIPMENT GROUP a/k/a and individually and as
successor in interest to LINK-BELT CONSTRUCTION EQUIPMENT COMPANY,
LTD, and also individually and as successor in interest to
NORTHERN PUMP COMPANY f/k/a NORTHERN FIRE APPARATUS COMPANY,
CHICAGO PUMP COMPANY, PEERLESS PUMP COMPANY and CROSBY VALVE,
INC.; FOSTER WHEELER, LLC, a/k/a and individually and as successor
in interest to FOSTER WHEELER CORPORATION and FOSTER WHEELER
ENERGY CORPORATION; GARDNER DENVER, INC., f/k/a GARDNER DENVER
MacHINERY, INC.; GENERAL ELECTRIC COMPANY; GEORGIA-PACIFIC LLC,
f/k/a GEORGIA-PACIFIC CORPORATION; GOODRICH CORPORATION, f/k/a THE
B.F. GOODRICH COMPANY; GOODYEAR TIRE & RUBBER COMPANY; GOULDS
PUMPS, INC.; GRINNELL LLC, d/b/a GRINNELL CORPORATION; HILL
BROTHERS CHEMICAL COMPANY; HOLLINGSWORTH & VOSE, CO.; HONEYWELL
INTERNATIONAL, INC., f/k/a and individually and as successor in
interest to ALLIED SIGNAL, INC., individually and as successor in
interest to BENDIX CORPORATION; IMO INDUSTRIES, INC., individually
and as successor in interest to DELAVAL TURBINE, INC. and C.H.
WHEELER MANUFACTURING COMPANY; INGERSOLL-RAND COMPANY,
individually and as successor in interest to TERRY STEAM TURBINE
COMPANY; INTERNATIONAL PAPER COMPANY, individually and as
successor to STRATHMORE PAPER CO.; ITT CORPORATION, f/k/a ITT
INDUSTRIES, INC., individually and as successor-in-interest to
BELL & GOSSETT, KENNENDY VALVE MANUFACTURING COMPANY, KENNEDY
VALVE, INC. and KENNEDY VALVE COMPANY; J.T. THORPE & SON, INC.;
JOHN CRANE, INC.; KAISER GYPSUM COMPANY, INC.; MEADWESTVACO
CORPORATION METALCLAD INSULATION CORPORATION; OAKFABCO, INC.,
f/k/a KEWANEE BOILER CORPORATION; PARSONS CORPORATION,
individually and as successor in interest to THE RALPH M. PARSONS
COMPANY; PEERLESS INDUSTRIES, INC.; PLANT PRODUCTS & SUPPLY CO.;
SB DECKING, INC., f/k/a SELBY, BATTERSBY & CO.; SONOCO PRODUCTS
COMPANY; SPECIAL ELECTRIC COMPANY, INC., individually and as
alter-ego and successor-in-interest to SPECIAL MATERIALS, INC.-
DELAWARE, SPECIAL MATERIALS, INC.-OHIO, SPECIAL MATERIALS, INC.-
ILLINOIS and SPECIAL MATERIALS, INC.-WISCONSIN f/k/a SPECIAL
MATERIALS, INC. f/k/a SPECIAL ASBESTOS COMPANY, INC.; SYD
CARPENTER, MARINE CONTRACTOR, INC.; TEXACO INC.; THE NASH
ENGINEERING COMPANY; THE WILLIAM POWELL COMPANY; THOMAS DEE
ENGINEERING CO., INC.; TRANE U.S. INCORPORATED, f/k/a AMERICAN
STANDARD INCORPORATED, individually and as successor to KEWANEE
BOILER CORP. and AMERICAN BLOWER COMPANY; TRIPLE A MacHINE SHOP,
INC.; UNION CARBIDE CORPORATION; VELAN VALVE CORPORATION,
individually and as successor in interest to VELAN STEAM TRAP
CORPORATION; VIKING PUMP, INC.; WARREN PUMPS, LLC, f/k/a WARREN
PUMPS, INC., individually and as successor in interest to QUIMBY
PUMP COMPANY; WEIR VALVES & CONTROLS USA, INC., f/k/a and
individually and as successor in interest to ATWOOD & MORRILL; and
DOES 1 through 400, inclusive, Defendants, CASE NO. 2:13-CV-05986-
SJO-AGR (C.D. Calif.). A full-text copy of Judge Otero's Decision
is http://is.gd/HZ1h7Pfrom Leagle.com
ASBESTOS UPDATE: Bid to Transfer "Hulen" Suit to Texas Granted
--------------------------------------------------------------
Before the U.S. District Court for the Southern District of New
York is a motion filed by Defendants Armstrong International, Inc.
and Milwaukee Valve Company, Inc., (together, "Movants") to
dismiss an asbestos case for forum non conveniens. In the
alternative, the Movants seek transfer to the Southern District of
Texas. Although there are many other defendants in this case,
none have objected to the motion.
In an opinion and order dated Aug. 27, 2013, District Judge
John F. Keenan denied the motion to dismiss and granted the motion
to transfer.
According to Judge Keenan, in this case, the proposed transferee
court is the Southern District of Texas, which is based in
Houston. The Movants assert, and the Plaintiff does not disagree,
that the action could have been brought in Texas. Judge Keenan
pointed out that the Plaintiff is a Texas resident, and Texas law
allows for civil actions relating to asbestos. The Movants
further state that all defendants are subject to service of
process there. Given that none of these representations are in
dispute, Judge Keenan concluded that the case could indeed have
been brought in the Southern District of Texas.
The case is MARY HULEN, as personal representative of the heirs
and estate of DONALD HULEN, deceased, Plaintiff, v. CRANE CO. et
al., Defendants, NO. 12 CIV. 7614 (JFK)(S.D.N.Y.). A full-text
copy of Judge Keenan's Decision is available at
http://is.gd/sb0ekbfrom Leagle.com
Plaintiff Mary Hulen is represented by:
Douglas von Oiste, Esq.
KARST & VON OISTE, LLP
19500 State Highway 249, Suite 420
Houston, TX 77070
Tel: 281-970-9988
Fax: 281-970-9856
Email: info@karstvonoiste.com
William T. Miedel, Esq. -- wmiedel@harrisbeach.com -- at Harris
Beach PLLC, for Defendant Armstong.
ASBESTOS UPDATE: Ohio Court Junks Insurance Suit v. Busy Beaver
---------------------------------------------------------------
Judge Timothy S. Black of the U.S. District Court for the Southern
District of Ohio, Western Division, in a decision dated Aug. 27,
2013, granted a motion for summary judgment dismissing a civil
action that centers on a dispute between an insurer and a named
insured for premiums due and owing for insurance coverage.
Plaintiff in the case, Transportation Insurance Company, provided
insurance coverage for dozens of asbestos lawsuits brought against
Defendant Busy Beaver Building Centers, a named insured under
polices of insurance issued by the Plaintiff. The parent company
with whom the insurance contracts were formed more than 30 years
ago is no longer operational nor available to pay. The Defendant
refuses to remit payment of the premiums, claiming that it has no
such contractual obligations to the Plaintiff. Both parties moved
for summary judgment on the issue of liability.
In his decision, Judge Black found that there are no genuine issue
as to any material fact, concluding that the Defendant is entitled
to judgment as a matter of law. Judge Black ruled that the
Defendant was never bound to the contract between the Plaintiff
and the parent company because the Defendant is not a successor.
The Defendant, according to Judge Black, is not responsible for
the retrospective premiums on the basis of successor liability
because it is not a successor to the parent company.
The case is TRANSPORTATION INSURANCE COMPANY, Plaintiff, v. BUSY
BEAVER BUILDING CENTERS, INC., Defendant, NO. 1:11-CV-907 (S.D.
Ohio). A full-text copy of Judge Black's Decision is available at
http://is.gd/8RJkAIfrom Leagle.com
Transportation Insurance Company, Plaintiff, is represented by
Scott R Mergenthaler, Esq. -- smergenthaler@cpmlaw.com -- at
Carlile Patchen & Murphy, and Samuel J Thomas, Esq. --
sthomas@bressler.com -- at Bressler, Amery & Ross, P.C.
Busy Beaver Building Centers, Inc, Defendant, represented by Felix
John Gora, Rendigs Fry Kiely & Dennis LLP, and Bethann R Lloyd,
Esq. -- blloyd@grogangraffam.com -- at Grogan & Graffam, P.C.
Mr. Gora may be reached at:
Felix John Gora, Esq.
RENDIGS FRY KIELY & DENNIS LLP
600 Vine St., Suite 2650
Cincinnati, OH 45202
Tel: 513-381-9278
Fax: 513-381-9206
ASBESTOS UPDATE: MDL Court Grants 418 Motions to Dismiss Suits
--------------------------------------------------------------
Before the Court are 565 motions to dismiss in cases that are part
of MDL 875, the consolidated asbestos products liability
multidistrict litigation pending in the District Court for the
Eastern District of Pennsylvania. The cases are on the MDL's
maritime docket.
Beginning in the mid-1980's, the Jaques Admiralty Law Firm began
filing cases in the Northern District of Ohio on behalf of
merchant marines who were alleged to have been injured from
exposure to asbestos-containing products located aboard commercial
vessels. Named as defendants were manufacturers and suppliers of
the accused products, and the shipowners themselves. Typically,
each case named upwards of 100 defendants. Ultimately, by the
year 2009, more than 50,000 cases had been filed involving
millions of claims against hundreds of defendants.
The 565 motions comprise 418 motions to dismiss for lack of
personal jurisdiction that argue that there is a lack of personal
jurisdiction over the filing defendants. Some of these motions
make the alternative argument that their motions to dismiss should
be granted due to insufficient service of process. There are 147
motions that are styled as motions to dismiss due to improper
service of process. These motions argue that although there was
some attempt at service of process, the plaintiffs deviated from
the applicable rules and thus service was improper.
In a memorandum dated Aug. 26, 2013, District Judge Eduardo C.
Robreno granted the 418 motions to dismiss for lack of personal
jurisdiction and the defendants who filed the motions will be
dismissed from the cases, but denied the 147 motions to dismiss
due to improper service of process.
The case is IN RE: ASBESTOS PRODUCTS LIABILITY LITIGATION (No.
VI): BARTEL, ET AL. v. VARIOUS DEFENDANTS, MDL DOCKET NO. 875
(E.D. Pa.). A full-text copy of Judge Robreno's Decision is
available at http://is.gd/U1ay3Vfrom Leagle.com
IN RE ASBESTOS PRODUCTS LIABILITY LITIGATION (NO. VI), represented
by JOHN E. HERRICK, Esq. -- jherrick@motleyrice.com -- JOHN DAVID
HURST, Esq. -- jhurst@motleyrice.com -- and V. BRIAN BEVON, Esq.
-- bbevon@motleyrice.com -- at MOTLEY RICE.
COFFIN TURBO PUMP, INC., MISNAMED AS COFFIN PUMP, INC. AND CROSBY
VALVE, INC., Defendant and Cross Defendant, are represented by
GEORGE F. FITZPATRICK, JR., Esq. -- gfitzpat@smbtrials.com -- at
SWANSON, MARTIN & BELL.
INGALLS SHIPBUILDING, INC., Defendant and Cross Defendant, is
represented by WILLIAM J. KRUEGER, Esq., at BAUGHMAN AND
ASSOCIATES.
CHICAGO TUBE & IRON CO., CLAYTON MANUFACTURING, CUMMINGS
MANUFACTURING, DOVER RESOURCES, INC, DRAVO CORPORATION,
DURAMETALLIC CORPORATION, EG&G SEALOL, INC., ELLICOTT MACHINE
CORPORATION, ELLIOTT/CARRIER, EXCELSIOR, INC., FOXBORO
CORPORATION, GREAT LAKES CARBON, GREEN TWEED & COMPANY, INC., GULF
COAST MARINE SUPPLY CO., HOPEMAN BROTHERS, INC., JAMISON COLD
DOOR, JOHN ZINK CO., J. P. STEVENS, MOORE PRODUCTS, PLIBRICO
COMPANY, ROPER INDUSTRIES, SPERRY RAND, VIKING PUMP, INC.,
VELLUMOID, INC., Defendants, Movants and Cross Defendants, are
represented by KEVIN O. KADLEC, Esq., at BONEZZI, SWITZER, MURPHY
& POLITO CO., L.P.A., and STEPHEN J. IMBRIGLIA, Esq. --
simbriglia@gibbonslaw.com -- at GIBBONS P.C.
Mr. Kadlec may be reached at:
Kevin O. Kadlec, Esq.
BONEZZI SWITZER POLITO & HUPP CO. L.P.A.
1300 East 9th Street
Cleveland, OH 44114
Tel: 216-586-2013 (Ext. 2069)
ALFRED CONHAGEN, INC., Movant, also represented by KEVIN O.
KADLEC, Esq., at BONEZZI, SWITZER, MURPHY & POLITO CO., L.P.A.,
and STEPHEN J. IMBRIGLIA, Esq., at GIBBONS P.C.
BABCOCK AND WILCOX, DIAMOND POWER SPECIALTY COMPANY, Movants, are
represented by RONALD S. KOPP, Esq. -- rkopp@ralaw.com -- at
ROETZEL & ANDRESS.
OLYMPIC STEAMSHIP COMPANY, INC., Respondent, is represented by
KATHERINE M. STEELE, Esq. -- ksteele@williamskastner.com -- at
WILLIAMS KASTNER & GIBBS PLLC.
ALASKA STEAMSHIP COMPANY, Movant, represented by HENRY E.
BILLINGSLEY, II, Esq. -- henry.billingsley@tuckerellis.com -- at
TUCKER ELLIS & WEST LLP, and KATHERINE M. STEELE, Esq., at
WILLIAMS KASTNER & GIBBS PLLC.
CERTAIN SHIPOWNER, Movant, is represented by RICHARD C. BINZLEY,
Esq. -- Dick.Binzley@thompsonhine.com -- HAROLD W. HENDERSON, Esq.
-- Hal.Henderson@thompsonhine.com -- and SUSAN K. DIRKS, Esq. --
Susan.Dirks@thompsonhine.com -- at THOMPSON HINE LLP; GENE B.
GEORGE, Esq. -- ggeorge@rayrob.com -- JULIA R. BROUHARD, Esq. --
jbrouhard@rayrob.com -- and SANDRA MAURER KELLY, Esq. --
skelly@rayrob.com -- at RAY ROBINSON CARLE & DAVIES; STEPHEN M.
BEAUDRY, Esq. -- sbeaudry@gallaghersharp.com -- at GALLAGHER
SHARP; SUSAN SQUIRE BOX, Esq. -- sbox@ralaw.com -- at ROETZEL
ANDRESS; and TIMOTHY M. FOX, Esq. -- tfox@ulmer.com -- at ULMER &
BERNE.
BETHLEHEM STEEL CORPORATION, Movant, represented by JILL G. OKUN,
Esq. -- jill.okun@squiresanders.com -- at SQUIRE SANDERS &
DEMPSEY.
USX CORPORATION, Movant, represented by EILEEN M. JOYCE, Esq., at
BAUGHMAN & JOYCE LLC; WILLIAM J. KRUEGER, Esq., at BAUGHMAN AND
ASSOCIATES; JAMES A. BYRNE, Esq. -- jbyrne@mdllp.net -- at MCMAHON
DEGULIS, LLP; and MATTHEW M. MENDOZA, Esq. -- mmendoza@calfee.com
-- at CALFEE HALTER & GRISWOLD LLP.
DEFENDANTS, Movant, represented by JOHN A. TURLIK, Esq. --
jturlik@smsm.com -- at SEGAL MCCAMBRIDGE SINGER & MAHONEY;
JEFFREY W. RUPLE, Esq. -- ruple@buckleyking.com -- at BUCKLEY
KING; STEPHEN M. BEAUDRY, Esq., and KEVIN C. ALEXANDERSEN, Esq. --
kalexandersen@gallaghersharp.com -- at GALLAGHER SHARP; MICHAEL J.
ZUKOWSKI, Esq. -- michael.zukowski@klgates.com -- at K&L GATES;
and ROBERT T. CONIAM, Esq. -- rconiam@rayrob.com -- and SANDRA
MAURER KELLY, Esq., at RAY ROBINSON CARLE & DAVIES.
TEXACO INC., Movant, represented by MARK E. FUHRMANN, Esq., at TEN
STAMFORD FORUM; MATTHEW M. MENDOZA, Esq., at CALFEE HALTER &
GRISWOLD LLP; and STEVEN I. FRENKEL, Esq. -- sfrenkel@cl-law.com -
- at CUMMINGS & LOCKWOOD.
KEENE CORPORATION, Movant, represented by BRUCE A. WAGMAN, Esq. --
bwagman@schiffhardin.com -- and ELLIOT S. JUBELIRER, Esq. --
ejubelirer@schiffhardin.com -- at SchiffHardin LLP; and GITA F.
ROTHSCHILD, Esq. -- grothschild@mccarter.com -- at MC CARTER &
ENGLISH.
KAISER ALUMINUM & CHEMICAL CORPORATION, Movant, represented by
JOHN D. ALDOCK, Esq. -- jaldock@goodwinprocter.com -- at GOODWIN
PROCTER LLP.
JOHN CRANE, INC., Movant, represented by GEORGE J. ANETAKIS, Esq.
FRANKOVITCH, ANETAKIS, COLANTONIO & SIMON; JAMES R. STOKES, Esq.,
at TOLLEY, FISHER & VERWYS, P.C.; STEPHEN H. DANIELS, Esq. --
sdaniels@mdllp.net -- and EVAN J. PALIK, Esq. -- epalik@mdllp.net
-- at MCMAHON DEGULIS.
Mr. Anetakis may be reached at:
George J. Anetakis, Esq.
Frankovitch, Anetaks, Colantonio & Simon
337 Penco Road
Weirton, WV 26062
Tel: 304-723-4400
Fax: 304-723-5892
Email: info@facslaw.com
ALASKA, Movant, represented by LEONARD C. JAQUES, Esq., at THE
MARITIME ASBESTOSIS LEGAL CLINIC; and JOHN E. HERRICK, Esq., at
MOTLEY RICE LLC.
OWENS-ILLINOIS, INC., Movant, represented by BRUCE A. WAGMAN,
Esq., and ELLIOT S. JUBELIRER, Esq., at SCHIFFHARDIN LLP; ERIC J.
KADISH, Esq. -- ejk@maronmarvel.com -- at MARON, MARVEL, BRADLEY &
ANDERSON P.A.; and JOHN CHARLES STEWART, Esq.
ACANDS, INC., Movant, represented by DOUGLAS C. PERKINS, Esq., at
HARTIG, RHODES, NORMAN, MAHONEY & EDWARDS; and RICHARD D.
SCHUSTER, Esq. -- rdschuster@vorys.com -- at VORYS, SATER, SEYMOUR
AND PEASE.
PLFFS-NORTHERN DISTRICT OF OHIO, EASTERN DIVISION, Movant,
represented by JUDITH A. SCHORNACK-SMITH, Esq. -- jschornack-
smith@jaquesadmiralty.com -- ROBERT E. SWICKLE, Esq. --
rswickle@jaquesadmiralty.com -- and DONALD A. KRISPIN, Esq. --
dkrispin@jaquesadmiralty.com -- at at THE JAQUES ADMIRALTY LAW
FIRM; LEONARD C. JAQUES, Esq., at THE MARITIME ASBESTOSIS LEGAL
CLINIC; JOHN E. HERRICK, Esq., JOHN DAVID HURST, and V. BRIAN
BEVON, Esq., at MOTLEY RICE.
PLFFS-TERRITORIAL COURT OF THE VIRGIN ISLANDS DIVISION OF ST.
CROIX, Movant, represented by LEONARD C. JAQUES, Esq., at THE
MARITIME ASBESTOSIS LEGAL CLINIC; and JOHN E. HERRICK, Esq., JOHN
DAVID HURST, Esq., and V. BRIAN BEVON, Esq., at MOTLEY RICE.
FIBREBOARD CORPORATION, Movant, represented by JOAN F. BRAULT,
TYDINGS & ROSENBERG & KELLY WOOSTER.
AMOCO SHIPPING COMPANY, Movant, represented by GENE B. GEORGE,
Esq., and JULIA R. BROUHARD, Esq., at RAY, ROBINSON, CARLE &
DAVIES PLL; JOHN G. GAUL, Esq. -- jgg@maronmarvel.com -- LINA M.
CARRERAS, Esq. -- lmc@maronmarvel.com -- and WAYNE A. MARVEL, Esq.
-- wam@maronmarvel.com -- at MARON MARVEL BRADLEY & ANDERSON PA.
MARITIME OVERSEAS CORP., Movant, represented by MATTIONI, LTD.;
GENE B. GEORGE, Esq., and JULIA R. BROUHARD, Esq., at RAY,
ROBINSON, CARLE & DAVIES PLL; and JOHN DAVID HURST, Esq., at
MOTLEY RICE LLC.
Mattioni Ltd. may be reached at:
399 Market Street, Suite 200
Philadelphia, PA 19106
Telephone 215-629-1600
Fax 215-923-2227
-- and --
1316 Kings Highway
Swedesboro, NJ 08085
Telephone 856-241-9779
Fax 856-241-9989
GENERAL ELECTRIC, Movant, represented by MARCY B. CROFT, Esq. --
croftmb@fpwk.com -- at FORMAN PERRY WATKINS KRUTZ & TARDY LLP; and
OLDHAM COMPANY, LLC.
Oldham Company may be reached at:
759 West Market Street
Akron, Ohio 44303
Tel: 330.762.7377
Fax: 330.762.7390
COMBUSTION ENGINEERING, INC., Movant, represented by JOAN M.
ENGLUND, Esq., at CENTER FOR FAMILIES AND CHILDREN.
CCR DEFENDANTS, Movant, represented by DAVID M. BATTAN, Esq.
ARGO INTERNATIONAL CORPORATION, Movant, represented by MARIA A.
KORTAN, Esq.
THE AMERICAN SHIP BUILDING COMPANY, Movant, represented by SCOTT
A. STICHTER, Esq. -- sstichter@srbp.com -- at STICHTER, RIEDEL,
BLAIN AND PROSSER, P.A..
IMO INDUSTRIES, INC., Movant, represented by KEVIN C.
ALEXANDERSEN, Esq., STEPHEN M. BEAUDRY, Esq., and COLLEEN A.
MOUNTCASTLE, Esq. -- cmountcastle@gallaghersharp.com -- at
GALLAGHER SHARP.
CERTAIN PERIPHERAL DEFENDANTS -- A.B. BOYD CO., ARGO INTERNATIONAL
CORPORATION, AUBURN MANUFACTURING CO., BRYAN STEAM, CARBORUNDUM,
CHAMPION INTERNATIONAL CORPORATION, COFFIN TURBO PUMP, INC.
misnamed as COOFIN, DURABLA, GATKE, INGERSOLL RAND CO., SKINNER
ENGINE CO., CHEMSECO, NOLAND CO., PHOENIX SPECIALTY, MORRISON
BROS., ZIMMERMAN, Movants, represented by GREGG L. SPYRIDON,
SPYRIDON KOCH & PALERMO LLC.
Mr. Spyridon may be reached at:
Gregg L. Spyridon, Esq.
SPYRIDON KOCH & PALERMO LLC
154 Porter Avenue
Biloxi, MS 39533
Tel: (228) 374-2013
Fax: (228) 374-2250
MANUFACTURER DEFENDANTS, Movant and Cross Claimant, represented by
PHILIP S. MC WEENY, Esq.; and MICHAEL J. ZUKOWSKI, Esq., at K&L
GATES.
PERIPHERAL DEFENDANTS, Movant, represented by DAVID C LANDIN, Esq.
-- dlandin@hunton.com -- at HUNTON & WILLIAMS.
MARITIME ASBESTOS INJURY LITIGANTS, Movant, represented by LEONARD
C. JAQUES, Esq., at THE MARITIME ASBESTOSIS LEGAL CLINIC; ALAN
KELLMAN, Esq. -- akellman@jaquesadmiralty.com -- and DONALD A.
KRISPIN, Esq., at THE JAQUES ADMIRALTY LAW FIRM, P.C.; and JOHN E.
HERRICK, Esq., JOHN DAVID HURST, Esq., and V. BRIAN BEVON, Esq.,
at MOTLEY RICE.
CROSBY VALVE & GAGE, Movant, represented by JOHN CHARLES STEWART,
Esq.
OWENS CORNING FIBERGLAS CORPORATION, Movant, represented by
CATHERINE N. JASONS, Esq. -- cjasons@kjmsh.com -- at KELLEY JASONS
MCGUIRE SPINELLI HANNA LLP.
LYKES BROTHERS STEAMSHIP COMPANY, INC., Movant, is represented by
PAMELA ZARLINGO, Esq. -- Pam.Zarlingo@thompsonhine.com -- at
THOMPSON HINE LLP.
ACORN IRON AND SUPPLY COMPANY, Movant, represented by G. DANIEL
BRUCH, JR., Esq. -- gdbruch@swartzcampbell.com -- at SWARTZ
CAMPBELL, LLC; and JOHN E. HERRICK, Esq., at MOTLEY RICE LLC.
GOULDS PUMPS, INC., Movant, represented by DANIEL J. RYAN, JR.,
Esq. -- djryan@mdwcg.com -- at MARSHALL DENNEHEY WARNER COLEMAN &
GOGGIN; and STEPHEN M. BEAUDRY, Esq., at GALLAGHER SHARP.
AND FELT PRODUCTS MFG. CO., Movant, represented by DONALD C. MC
LEAN, Esq. -- donald.mclean@arentfox.com -- at ARENT, FOX.
GOODYEAR TIRE & RUBBER COMPANY, BFGOODRICH COMPANY, Movants,
represented by RICHARD D. SCHUSTER, Esq., at VORYS, SATER, SEYMOUR
AND PEASE.
INDIAN HEAD INDUSTRIES, Movant, represented by DANIEL R.W.
RUSTMANN, Esq. -- rustmann@butzel.com -- and JAMES E. WYNNE, Esq.
-- wynne@butzel.com -- at BUTZEL LONG.
ROCKBESTOS, INC., Movant, represented by GARY D. HERMANN, Esq. --
ghermann@axilonlaw.com -- at AXILON LAW GROUP PLLC.
A-BEST PRODUCTS COMPANY, INC., Movant, represented by KEITH E.
WHITSON, Esq. -- kwhitson@schnader.com -- at SCHNADER HARRISON
SEGAL & LEWIS LLP.
SHERWIN-WILLIAMS COMPANY, and MORTELL COMPANY, Movants,
represented by LAWRENCE G. CETRULO, Esq. -- lcetrulo@cetllp.com --
at CETRULO & CAPONE.
SB DECKING, INC., Movant, represented by THOMAS M. DIXON, Esq. --
tdixon@clarkhill.com -- at CLARK HILL, P.L.C.
WARREN PUMPS, INC., Movant, is represented by GALLAGHER SHARP.
GULF ENGINEERING CORP., Movant, represented by MICHAEL D. EAGEN,
Esq. -- michael.eagen@dinsmore.com -- at DINSMORE & SHOHL.
BLACK & DECKER CORP, Movant, represented by WOMBLE CARLYLE
SANDRIDGE & RICE PLLC.
INTERCONTINENTAL CARRIER CORPORATION, OVERSEAS BULKTANK
CORPORATION, VALDEZ TANKSHIP CORPORATION, FIRST SHIPMOR
ASSOCIATES, INTERCONTINENTAL BULKTANK CORPORATION, VIVIAN TANKSHIP
CORPORATION,, Movant, represented by MATTIONI, LTD.
ASBESTOS UPDATE: Specialty Products Proceeds to Appellate Process
-----------------------------------------------------------------
Judge Sue Robinson of the U.S. District Court for the District of
Delaware entered an order dated Aug. 29, 2013, accepting the
recommendation from Chief Magistrate Judge Mary Pat Thynge that
the matter in Specialty Products Holdings Corp.'s Chapter 11 case
be withdrawn from the mandatory referral for mediation and proceed
through the appellate process of the District Court.
The case is In re: SPECIALTY PRODUCTS HOLDING CORP., Chapter 11,
et al., Debtors, BK. NO. 10-11780 (JKF)(Bankr. D. Del.). A full-
text copy of Judge Robinson's Decision is available at
http://is.gd/KisAS5from Leagle.com
Specialty Products Holding Corp., and Bondex International Inc.,
Appellants, are represented by Daniel J. DeFranceschi, Esq. --
defranceschi@rlf.com -- Paul N. Heath, Esq. -- heath@rlf.com --
Tyler Dautel Semmelman, Esq. -- semmelman@rlf.com -- and Zachary
I. Shapiro, Esq. -- shapiro@rlf.com -- at Richards, Layton &
Finger, PA.
The Official Committee of Asbestos Personal Injury Claimants,
Appellee, is represented by Nathalie Diane Ramsey, Esq. --
nramsey@mmwr.com -- and Davis Lee Wright, Esq. -- dwright@mmwr.com
-- at Montgomery, McCracken, Walker & Rhoads.
Eric D. Green, is represented by James L. Patton, Jr., Esq. --
jpatton@ycst.com -- Edwin J. Harron, Esq. -- eharron@ycst.com --
Erin Edwards, Esq. -- eedwards@ycst.com -- John T. Dorsey, Esq. --
jdorsey@ycst.com -- and Sharon Matava Zieg, Esq. -- szieg@ycst.com
-- at Young, Conaway, Stargatt & Taylor LLP.
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.
On May 20, 2013, the Bankruptcy Court entered an order estimating
the amount of the Debtors' asbestos liabilities, and a related
memorandum opinion in support of the estimation order. The
Bankruptcy Court estimated the current and future asbestos claims
associated with Bondex International, Inc. and Specialty Products
Holding at approximately $1.17 billion. The estimation hearing
represents one step in the legal process in helping to determine
the amount of potential funding for a 524(g) asbestos trust.
ASBESTOS UPDATE: With Fibro Removed, DOE Returns to Federal Bldg.
-----------------------------------------------------------------
John Huotari, writing for Oak Ridge Today, reported that the
asbestos-containing insulation has been removed, and U.S.
Department of Energy employees and contractors started a month-
long move back into the Joe L. Evins Federal Building.
According to the report, the asbestos-containing insulation has
been removed, and U.S. Department of Energy employees and
contractors started a month-long move back into the Joe L. Evins
Federal Building, a spokesman said on Aug. 28.
The move back into the five-story building should be complete by
the end of September, said Ben Williams, public affairs specialist
for the DOE Oak Ridge Office, the report related.
Office space has been modified, and the building can now house
about 440 workers, an increase of about 90 employees, the report
said. The light construction work has included moving walls. The
telecommunications system was also upgraded while everyone was out
of the building, Williams said.
There were roughly 350 federal employees and contractors at the
Federal Building when it was shut down in June 2012 after an
inspection found insulation with asbestos had fallen into heating
and cooling ducts. Many of the workers had to temporarily move
elsewhere while the U.S. General Services Administration, which
owns the 155,000-square-foot building, removed the insulation. In
addition to DOE employees and contractors, the Federal Building
has also housed a district office for U.S. Rep. Chuck Fleischmann.
The office space changes will allow the local DOE Environmental
Management organization, which had been in the nearby Building
2714, to move into the Federal Building.
Meanwhile, Safety and Technical Services, an organization that had
been in the Federal Building, will move into Building 2714. They
will be joined there by the DOE Office of Inspector General, which
had previously been in leased space. The moves into 2714 might not
be complete until November or December, Williams said.
In January, GSA awarded a $2.5 million contract to Katmai Support
Services LLC of Alaska to abate and remove the asbestos-containing
material in the Federal Building. Williams said GSA completed the
work on July 1.
"The project included removal of asbestos-containing material from
HVAC fan coils and pipe chases, demolition and construction of
affected wall partitions, and surface cleaning on floors,
ceilings, and walls," said Saudia Muwwakkil, GSA regional public
affairs officer. She said the work affected about 92 percent of
the facility.
In February, Mike Koentop, a DOE spokesman in Oak Ridge, said some
workers have been temporarily housed in other federal space at
Building 2714-G on Laboratory Road and at the Office of Scientific
and Technical Information in east Oak Ridge. Some employees worked
in leased commercial space at 545 Oak Ridge Turnpike, Koentop
said. Emergency operations continued to run in the Federal
Building's basement.
Last year, officials said air samples from the Federal Building
suggested that no employees were exposed to asbestos from the
loose insulation that had fallen into heating and cooling ducts.
ASBESTOS UPDATE: Fibro Dumped by Fly-tippers in Southampton
-----------------------------------------------------------
Patrick Knox, writing for Southern Daily Echo, reported that an
investigation has been launched after asbestos was dumped amid a
housing estate -- just yards away from a children's play area.
According to the report, eight black bin bags of the lethal
material were found tipped on a footpath and a wood off Aldermoor
Road in Southampton. A large pile was also found within the
forest in Coxford. Community leaders and residents have condemned
the fly-tipping.
They fear that people's health could have been jeopardised if they
picked up the deadly material, which if damaged can release fibres
that result in serious illness, including malignant lung cancer
mesothelioma, the report said.
The incident was reported to the highways inspector -- but his
team refused to move the dangerous material, instead gating it off
before a specialist team wearing masks and overalls arrived to
clear it away.
Now an appeal has been launched to help track down the fly-
tippers.
If brought to justice they could be fined up to GBP50,000 or
imprisoned.
Coxford ward councillor Don Thomas, who alerted the authorities
about the asbestos, said: "To dump it in a wood next to a play
area where young children play and have fun is just appalling.
"The effect of fly-tipping and the harm it creates on our
environment is at all times bad enough, but this is on another
level, it is a selfish act of irresponsibility.
"Everyone knows and understands the dangers of asbestos.
"I hope anyone who may have seen anything or have any information
gets in touch with the authorities."
Outraged resident Les Lovell said: "What bothers me is the thought
that you will have kids wanting to chuck it about and break it.
"It was a considerable amount."
Neighbour Lynda Creswell said: "I get so angry at fly-tippers and
if you think it is asbestos, that's absolutely criminal because
you are damaging people's health.
"Fly-tipping is one thing but to dump something like that?"
Among the dump, investigators found asbestos cement sheets which
are commonly used to construct the roof and walls of sheds,
garages and similar outbuildings.
They say the material appears to be from a building of this type
which is being demolished or having alteration work.
It is believed it was ditched some time on Wednesday, August 21.
Councillor Jacqui Rayment, Cabinet member for environment and
transport, said: "It is disappointing to find that someone has
chosen to fly-tip their rubbish in woodland used for recreation by
local residents.
"The council arranged for the rubbish to be removed promptly and
will take action if the person responsible for dumping this
rubbish can be identified."
Information on the fly-tippers can be reported by calling 023 8083
3008.
ASBESTOS UPDATE: Daughter Names 47 Companies in Exposure Suit
-------------------------------------------------------------
Lawyers and Settlements reported that the daughter of the late
Phillip D. Ohlinger, who died from asbestos-related lung cancer,
has filed an asbestos suit naming 47 defendants. Mr. Ohlinger was
diagnosed with lung cancer in March and died on July 9, according
to court documents.
In her asbestos lawsuit, Ann Ohlinger claims that between 1953 and
1992 the defendants exposed her father to asbestos during his
employment as a sales person, laborer, furnace stoker and
maintenance worker, the report related.
Ms. Olinger is suing the defendants based upon theories of
negligence, contaminated buildings, breach of expressed/implied
warranty, strict liability, intentional tort, conspiracy,
misrepresentations and post-sale duty to warn, the report said.
Further, Ms. Olinger is suing certain defendants as premises
owners and as Phillip Ohlinger's employers for deliberate
intent/intentional tort. She is seeking a jury trial to resolve
all issues involved.
The named defendants include: 3M Company; A.W. Chesterton Company;
Air & Liquid Systems Corporation; Ajax Magnethermic Corporation;
American Electric Power Service Corporation; Beazer East Inc.;
Brand Insulations Inc.; Catalytic Construction Company;
Caterpillar Inc.; and Certainteed Corporation were some of the 47
defendants named in the suit.
ASBESTOS UPDATE: Couple Names 82 Companies in Exposure Suit
-----------------------------------------------------------
Lawyers and Settlements reported that 82 companies have been named
as defendants in an asbestos lawsuit brought by Travis and Linda
Jean Simons. In their lawsuit, the couple alleges Mr. Simons has
sustained asbestos-related illness resulting from his asbestos
exposure during the course of his employment.
According to the report, on November 13, 2012, Travis Simons was
diagnosed with an asbestos-related lung injury. The Simons claim
the 82 defendants exposed Travis to asbestos during his employment
as a laborer from 1968 until the present.
The defendants are being sued based upon the theories of
negligence, contaminated buildings, breach of expressed/implied
warranty, strict liability, intentional tort, conspiracy,
misrepresentation and post-sale duty to warn. Additionally,
certain defendants are also being sued as premises owners and as
plaintiff's employers for deliberate intent/intentional tort.
ASBESTOS UPDATE: Coventry Family Wins Fibro-related Death Case
--------------------------------------------------------------
Steve Carpenter, writing for Coventry Observer, reported that the
family of a Coventry man who died after he was exposed to asbestos
decades ago has received GBP90,000 in compensation.
According to the report, Frank Parker, of Oxendon Way, Ernesford
Grange, was 73-years-old when he died in June 2011, just over 18
months after he was diagnosed with the asbestos-related disease
mesothelioma.
Although he was advised by his nurses to speak to solicitors
before his death, Mr Parker succumbed to his illness before he was
able to take action against his former employers, the report
related. But shortly after his death, Mr Parker's son, Graham,
and daughter-in-law, Adrienne, took up his fight for justice
against those responsible for exposing him to asbestos.
And after their appeal was featured in the Observer in September
last year, their solicitor was able to secure the evidence needed
to settle the claim for compensation in Mr Parker's name.
"We're obviously delighted," said Mrs Parker, of Binley, who
looked after her father-in-law throughout his illness.
"No amount of money will ever bring Frank back to us, or make up
for the pain and suffering he endured for the final months of his
life.
"But the fact that we've been able to take a stand against his
employers, who needlessly exposed Frank and workers like him to
asbestos, brings us a sense of justice and might also inspire
others in a similar situation to not let employers get away with
it."
Mr Parker had trained as an electrician after leaving school in
the early 50s before joining a local firm as an apprentice.
In 1974 he joined Massey Ferguson, where he worked until he
retired in 1990 to care for his wife Shirley-Ann, who died from a
lengthy illness in 1993.
But Lesley Mynett, a specialist industrial disease lawyer with
Fentons Solicitors LLP, said that during his 16 years there, Mr
Parker was exposed to old asbestos when carrying out maintenance
work.
"Mr Parker paid an enormous price for working dutifully," she
added.
"Thanks to the help of his former colleagues, we have been able to
hold those responsible to account and win some justice for the
family he has left behind."
ASBESTOS UPDATE: Scrap Metal Merchant Killed by Mesothelioma
------------------------------------------------------------
The Huddersfield Daily Examiner reported that a scrap metal
merchant who stripped copper boilers for a living died from an
asbestos-related disease, an inquest heard.
According to the report, Ernest Vig, 80, was born in Hungary but
moved to England when he was 23. He spent most of his working
life as a self-employed scrap metal merchant, cutting up copper
boilers lagged with asbestos, the report said.
Mr Vig, of High Street, Scapegoat Hill, suffered a stroke in 2008
which left him wheelchair bound. He was then diagnosed with
malignant mesothelioma in 2012 after suffering lung complications.
His condition deteriorated and he died on May 31, 2013.
A post mortem report confirmed he died from malignant mesothelioma
due to asbestos exposure.
Coroner Roger Whittaker recorded a verdict of death from an
industrial disease.
ASBESTOS UPDATE: Family Left Waiting with Fibro in Ceiling
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Rich Guttridge, writing for Burton Mail, reported that a family in
Burton have been left frustrated in their attempts to discover
whether they are living with asbestos.
According to the report, Daniel Green said he had been trying to
get the issue sorted at his Cross Street home for around six
months and had become increasingly frustrated by the lack of
progress by housing association Orbit.
Mr Green was made aware that he may have asbestos in his ceiling
by a friend who is a builder, and, with his three-year-old
daughter also living at the property, had become concerned it
could be posing a risk to his family, the report said. He said:
"It was spotted about six months ago. A friend pointed it out and
said we need to get it sorted.
"My daughter is three and I worry having her around it -- it's a
killer."
Orbit was keen to point out that there was no danger to the family
as the ceiling containing the suspected asbestos hadn't been
disturbed.
The firm stressed that an appointment had now been arranged with
the family in an attempt to find a solution.
Lee Steele, the firm's head of operations, said: "A request for a
repair was made on August 9. Unfortunately the contractor did not
make contact with the family and we were unaware of this.
"Asbestos is a common building material in older properties. If it
is present within the ceiling covering there is no danger to
anyone unless the ceiling is damaged or disturbed."
ASBESTOS UPDATE: Three Charged in Fibro-related Crimes
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WSGW reported that three Bay County men have been arraigned in
federal court in Bay City on an indictment charging them with
asbestos-related crimes. Roy Bradley, Gerald Essex and Rodolfo
Rodriguez are charged with illegally disturbing and handling
asbestos while converting a church into a school building for the
Bay City Academy.
According to the report, Rodriguez was charged with obstructing
the grand jury's investigation into the asbestos-related crimes by
giving materially false testimony under oath before the
grand jury. Maximum penalties for the various charges against the
three range from five to 20 years.
U.S. Attorney Barbara McQuade and EPA Special Agent Randall Ashe
said illegal and unsafe disposal of asbestos is a health concern
and can harm the environment, the report related. They hope the
case will deter other environmental crimes.
ASBESTOS UPDATE: Dangerous Dust Found in Northampton School Roof
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Callum Jones, writing for Northampton Chronicle & Echo, reported
that a primary school in Northampton will not open after traces of
asbestos were found in a roof of the building.
According to the report, a letter has been sent to all parents of
pupils at The Good Shepherd Catholic Primary School in
Kingsthorpe, informing them about the delayed start to the new
school term.
It is expected the school will open on September 9 after work is
carried out to remove the asbestos from the roof cavity in the Key
Stage One building.
A spokesman for Northamptonshire County Council said: "While there
is no immediate danger the school wants to make this safe and
carry out the essential works needed.
"Independent reassurance background air monitoring has been
carried out throughout the school. The result of these tests show
no elevated asbestos fibre levels.
"Further testing will be carried out during the removal works and
before any reoccupation to ensure the safety of everyone.
"The process to start the work began as soon as the issue arose,
however the school will not be ready to reopen before terms starts
on September 5 and will be completely shut until Monday, September
9."
Children in the reception year who were due to start school during
the week starting September 16 will not be joining the school
until Monday, September 23, at the earliest.
ASBESTOS UPDATE: Victims Welcome Government Consultation on ELIB
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Sara Hunt, associate at Shoosmiths Access Legal, reported that the
Government has begun a consultation on whether an Employers'
Liability Insurance Bureau (ELIB) should be opened.
"It isn't fair that those suffering in this way should be denied
compensation because an insurer can't be traced."
According to the report, it would ensure compensation for those
affected by asbestos-related disease, but who are prevented from
claiming because they cannot trace an insurer for the company
where they were exposed to the cancer-causing material.
Those suffering from asbestos related illness may have been
exposed at work as long as 40-years-ago.
The company where they were exposed to asbestos may no longer
exist, but if the company insurer can be traced a compensation
claim can be made.
Despite the fact there is a legal requirement for companies to
keep insurance certificates for 40 years, there's no central
storage system of these insurance policies.
Currently, an insurance trace can be made through the Association
of British Insurers (ABI), but its voluntary code relies on the
cooperation of insurers to provide information about policies
they've written.
The lack of success in tracing insurance policies through the ABI
is revealed by the Department of Work and Pensions figures from
2008, which showed an online tracing system success rate of just
45%. The potential effect of this is that 55% of people making
searches have been denied the right to claim compensation.
One of the functions of an ELIB would be to collate and store
insurance policy information and, most importantly, insurers would
also be expected to contribute to a central fund to pay out on
cases where there's no insurance -- similar to how the Motor
Insurance Bureau works.
In the current economic climate, where many companies are being
forced to close down, those insurance certificates may be lost
forever.
Unless the Government sets up an ELIB, the problems with finding
insurers to pay out compensation to sufferers will continue.
Access Legal from Shoosmiths associate and asbestos specialist
Sara Hunt said: "The introduction of an ELIB would ensure greater
justice for those suffering the painful and often debilitating
effects of asbestos related conditions. It isn't fair that those
suffering in this way should be denied compensation because an
insurer can't be traced."
ASBESTOS UPDATE: MDL Court Awards Georgia-Pacific Summary Judgment
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HarrisMartin Publishing reported that the Asbestos Products
Liability MDL Court has awarded summary judgment to Georgia-
Pacific in a joint compound case, finding that the plaintiff
failed to establish product identification.
According to the report, in the Aug. 12 order, the U.S. District
Court for the Eastern District of Pennsylvania also found that an
affidavit executed three days before the decedent's death was not
admissible under the "deathbed declaration" exception to the
hearsay rule.
Jill Farrell asserted the claims on behalf of Howard James
Farrell, contending that he was exposed to asbestos-containing
joint compound while performing personal home repair and
automotive work, the report related.
ASBESTOS UPDATE: 85-Year Old Man Awarded $320,000 Damages
---------------------------------------------------------
9MSN reported that an 85-year-old man has been awarded more than
$320,000 in damages after a judge ruled he was suffering from
mesothelioma caused by his exposure to asbestos.
According to the report, from 1957 to 1988 Allan Charles Geyer
worked as a boiler maker and supervisor at South Australia's
Playford Power Stations and argued it was there he came in contact
with asbestos dust and fibres.
After taking extensive medical evidence, the District Court in
Adelaide has ruled that Mr Geyer has a tumour in his pleural
cavity and more probably that not is suffering from mesothelioma,
the report related.
Judge Bill Jennings said it was likely the disease would claim Mr
Geyer's life within the next year and set total damages at
$327,474.
"The medical evidence establishes that the invariable course of
the disease will be an increase in the size of the tumour,
increasing shortness of breath, weight loss and depression,
increasing pain and . . . ultimately death," the judge said.
He said Mr Geyer's employer at the time had been aware of the
risks posed by asbestos from the early 1970s and while the company
took some measures to reduce the danger, did not go far enough.
ASBESTOS UPDATE: Jeff Davis Parish Library Work on Hold
-------------------------------------------------------
The Associated Press reported that concerns over asbestos and
foundation damage caused by water and termites have delayed the
start of the second phase of renovation of the Jefferson Davis
Parish Library.
According to the report, the $150,000 project was expected to be
underway this fall, but library director Linda LeBert-Corbello
tells The American Press it has been delayed until early 2014.
The library has temporarily closed the front entrance as a safety
precaution until crews can shore up the foundation and repair
water and termite damage underneath the structure.
ASBESTOS UPDATE: Cancer Death Question Mark Causes Concern
----------------------------------------------------------
News Letter reported that there is ongoing confusion over just
when an elderly cancer sufferer actually died, a coroner's court
has heard.
According to the report, a preliminary hearing opened on Aug. 30
in Belfast into the death of Edward Magee.
At the outset, one of Mr Magee's causes of death was listed as
mesothelioma -- a form of cancer which is commonly linked to
asbestos, the report related. The other cause was listed as being
emphysema.
Mr Magee, aged 73 at time of death and whose address was given as
Shore Road, Newtownabbey, had worked as a caretaker.
The case has yet to proceed in full to establish the circumstances
of his death, and coroner James Kitson heard there were question
marks over whether the deceased had passed away on May 14, 2013,
or on May 13.
On the inquest document the date of death was listed as May 14,
but the court heard nurses had told the family it was the 13th.
The court heard patient files had been sought to try and shed
light on the matter, but that some of the notes had not turned up.
The lawyer acting for the Belfast Health and Social Care Trust
said a further search was being carried out to find them.
Mr Kitson called this "concerning," and said it had been "rumbling
on much too long".
Acting for the family, barrister Rory Fee had told the court the
delay in resolving the issue was "exacerbating their grief".
Mr Kitson told those assembled in May's Chambers that the case
should resume next month.
Speaking afterwards, daughter Sinead Eastwood, from north Belfast,
said the ongoing uncertainty meant that they were unable to get a
proper headstone made for him.
ASBESTOS UPDATE: Fulton County OKs $200,000 for Fibro Removal
-------------------------------------------------------------
Ashley M. Casey, writing for Fulton News, reported that the Fulton
Common Council approved issuing $769,000 in bonds for seven
capital projects at a brief special meeting.
According to the report, the biggest chunk of money -- $200,000 --
will be used to remove asbestos from and demolish four or five
vacant, dilapidated houses that the city has seized in tax
foreclosure proceedings.
Although 10 or 11 buildings need to be demolished, the city won't
have enough money to tear down all of them, said Mayor Ronald L.
Woodward Sr., the report related. The structures are beyond
repair, the roofs on two of them are caving in, and there was a
fire in one of the buildings, he said.
Asbestos in the siding and other building materials contributes to
the bulk of the cost, he said. The city isn't certified to remove
asbestos, a carcinogen, and must hire an outside firm to do that
work, he said.
ASBESTOS UPDATE: Dow Chemical to Appeal Meso Victim's $6MM Award
----------------------------------------------------------------
Gordon Gibb, writing for Lawyers and Settlements, reported that
about 10 days after a jury in an asbestos lawsuit awarded the
plaintiff nearly six million dollars, one of two defendants
remaining in the case at the time of the verdict announced they
will appeal the ruling.
According to the report, Dow Chemical said on August 22 that they
plan to appeal. Dow would be liable for a portion of the $5.95
million awarded to plaintiff Sidney Mabile, a former electrician
who was diagnosed with asbestos mesothelioma.
Mesothelioma is a rare but serious form of asbestos cancer that is
caused by exposure to asbestos fibers. The asbestos disease can
incubate in the body for decades before finally emerging, reducing
lung capacity of asbestosis patients and often tying them to a
constant supply of oxygen. There is no cure.
As is the case with most asbestos claims, mesothelioma is
considered a death sentence.
According to various reports, Mabile worked for an electrical
contractor that sent him to perform work at a Dow Chemical
facility. It was while working at the facility, according to
Business Wire, that Mabile alleges he was exposed to asbestos
fibers.
What's more, in a damning commentary to the values of some major
corporations, Mabile's asbestosis attorney alleged that Dow had
predicted some portion of its direct workforce, as well as
contract workers, could potentially be at risk for cancer - but
that it would be more cost-effective for Dow Chemical to continue
employing the use of asbestos in its chemical manufacturing
processes. Asbestos lawyers representing the plaintiff cited
internal Dow Chemical documents dating back to 1970.
According to the report, Mabile claims to have been exposed to
asbestos at the Dow Chemical facility located at Plaquemine,
identified as the largest chemical plant in Louisiana.
In a statement, Dow said, "We believe the credible evidence
introduced at trial demonstrated that Mr. Mabile's disease was not
caused by his work at Dow's facility. Dow will now pursue its
rights through post-trial motions and the appellate process, and
will continue to vigorously defend all asbestos claims brought
against the company."
The asbestos lawsuit was tried over a period of four weeks at the
18th Judicial District Court for Iberville Parish and presided
over by Judge Donald M. Fendlason. The jury held that Dow Chemical
was responsible under theories of negligence and unreasonably
dangerous premises.
According to the report, asbestos cancer continues to claim about
3,000 lives each year in the US.
ASBESTOS UPDATE: Chester Redevelopment to Clean Former Sears Site
-----------------------------------------------------------------
Delco Times reported that the Chester Redevelopment Authority was
the recipient of an Industrial Sites Reuse Program grant which
will go toward the cleanup of environmental contamination of the
former Sears Department Store and Automotive Center site at
Edgmont Avenue in the city.
According to the report, the authority acquired the site more than
a decade ago and has found asbestos, petroleum contaminants and
five underground storage tanks there.
The authority will use the $335,225 grant for asbestos abatement,
soil remediation, underground storage tank removal and associated
engineering costs, according to the Pennsylvania Department of
Economic and Community Development, the report related. After the
remediation, the authority plans to market the site for commercial
or mixed use development.
"This is a great project that will provide both health and
economic development benefits in the city of Chester," said state
Senate Majority Leader Dominic Pileggi, R-9, of Chester, in a
prepared statement.
ASBESTOS UPDATE: TTS Minister Faces Questions on Fibro Disposal
---------------------------------------------------------------
This is Jersey reported that asbestos, taxi regulation, the
incinerator and ash disposal were among the subjects covered at a
Scrutiny hearing with the Transport and Technical Services
Minister on Sept. 2.
According to the report, the Environment panel met Deputy Kevin
Lewis to receive their quarterly update from him.
The agenda for the meeting has been split into four subjects:
waste disposal; motor traffic and road safety; infrastructure; and
assets and transport, the report related.
Deputy John Young, who chairs the panel, said that he and his
colleagues wanted to catch up with the minister on various matters
that had been going on for a long while, the report added.
ASBESTOS UPDATE: European Reinsurers Should Focus on US APH
-----------------------------------------------------------
Katie Marriner, writing for Insurance Insight, reported that the
expected increased ultimate cost of dealing with asbestos claims
of $10bn (GBP6.4bn) is a source of growing uncertainty for
European reinsurers, Ruxley Research has said.
According to the report, the research concluded that while the
average US asbestos survival ratio of European reinsurers remains
healthy and consistent with previous years, the challenges facing
US insurers could become a problem for European reinsurers.
The research found that the delay in Solvency II's introduction
provides an opportunity for reinsurers to focus on dealing with
problems such as US APH, allowing reserves to be released and
capital reallocated to more profitable underwriting activities,
the report related.
John Winter, Ruxley Ventures chief executive, said: "While it is
heartening to see that the asbestos reserves of European insurers
continue to be robust, the pressure from a rising asbestos ultimat
and the costs associated with holding on to these liabilities are
increasingly unattractive to investors."
"While uncertainty is rising insurers have a window of
opportunity, given Solvency II's delay, to act now and look to
transfer their existing US APH liabilities," Winter said.
ASBESTOS UPDATE: Huge Fibro Clean-up at Fulham Property
-------------------------------------------------------
Julianne Langhsaw, writing for Gippsland Times & Maffra Spectator,
reported that a huge clean-up is under way in Fulham after
asbestos and other building waste was reported dumped in a paddock
which has associations with the failed Macalister Constructions
company.
According to the report, the land, on the Sale-Heyfield Rd was
reportedly seized by a financial institution which had been
planning to auction the property in May. The auction has been
postponed while the massive clean-up takes place.
A spokesperson for the Environment Protection Authority said the
EPA had investigated a community report of dumping at this site in
April last year and issued a clean-up notice to Macalister
Property to remove the waste and cease depositing waste at the
site, the report related.
"At this stage it wasn't known that there was asbestos on site as
some of it was buried," the spokesperson said.
"The EPA considered enforcement action, but the company went into
receivership and a financial institution took over the site."
The spokesperson said the financial institution had co-ordinated
the clean-up of the site and a clean-up plan was prepared by
Hazcon, a specialist health, safety and environmental consultancy
company.
"The clean-up is currently occurring on-site by a class A asbestos
removalist preparing the property to be resold," the spokesperson
said.
The EPA pointed out the illegal dumping of contaminated fill
material, tyres, manufacturing, and construction and demolition
waste was an indictable offence, and could attract a maximum court
penalty of $610,700 or seven years imprisonment for an individual,
and more than $1.2 million for a corporation.
Macalister Constructions was placed into administration in January
this year following many months of rumours and speculation in the
community.
Businesses across the state have been affected by the fall of the
company, which owes up to $18 million to the National Australia
Bank and to hundreds of unsecured creditors.
One major firm is owed $1.8 million.
The list of creditors runs into eight pages, some smaller
creditors owed hundreds of thousands of dollars.
A large number of known unsecured creditors extends beyond
Gippsland, with businesses in Melbourne, Geelong and Ballarat also
affected.
In June local contractors took another hit in the saga, with
administrators SV Partners asking for creditors to repay money
secured in the six months in the lead-up to the Macalister
Constructions liquidation in January.
A court order to wind up Macalister Property and appoint a
liquidator was made in June this year.
*********
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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