/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/140103.mbx C L A S S A C T I O N R E P O R T E R Friday, January 3, 2014, Vol. 16, No. 2 Headlines ALLSTATE CORPORATION: Court Remanded Montana Case for Trial ANZ BANK: Thousands of New Zealanders Join Fee Class Action AUSTRALIA: CFS Settles Bushfire Class Action for AUD60 Million BANK OF AMERICA: Settlement Notification Program Begins BASIC RESEARCH: Snooki Helps Peddle Zantrex Diet Pills, Suit Says COMMUNITY HEALTH: Faces Class Suits Over Breach of Fiduciary Duty COMMUNITY HEALTH: Bid to Dismiss NYC Funds Suit Fully Briefed CONSECO LIFE: Parties in "Burnett" Suit Must Engage in Discovery CONSUMER PORTFOLIO: Court May Set Pardee Issue for Trial in 2014 CONSUMER PORTFOLIO: Facing Two Consumer Class Actions DEWEY BEACH, DE: Judge Nixes Highway One Businesses' Tax Suit DIGITALGLOBE INC: GeoEye Shareholder Litigation Now Closed DOW CHEMICAL: Appeals Urethane Price Fixing Class Action EURONET WORLDWIDE: Settled Lawsuit Alleging Wage & Hour Violations EXECUTIVE FLIGHT: Responds to Class Action Over Lemon Creek Spill FACEBOOK INC: Court Refused to Dismiss IPO-Related Litigation FORD MOTOR: 6th Cir. Keeps Summary Judgment Ruling in "Kuns" Suit GIUMARRA VINEARDS: Class Notice in "Munoz" Suit Gets Initial OK GNC HOLDINGS: 73 Hydroxycut-Related Suits Pending at Sept. 30 HULU LLC: Opposes Bid to Certify Class in Privacy Litigation INSYS THERAPEUTICS: Pomerantz Law Firm Files Class Action in Ariz. J2 GLOBAL: Makes It Impossible to Cancel eFax Service, Class Says KFORCE INC: Orange County Suit Removed to C.D. Calif. Court KINDRED HEALTHCARE: Wins Final OK of $8.25-Mil. Class Settlement MADISON COUNTY, IL: Tax Fraud Class Actions to Proceed as One Suit MARRIOTT INT'L: Summary Judgment Bid in Md. Employee Suit Tossed MB FINANCIAL: Amended Complaint Filed in Suit Over Taylor Merger MERCHANT SERVICES: To Pay $923,000 to Credit Card Suit Attorneys MOBILE MESSENGERS: Class Cert. Bid in "Fields" Suit Denied MOODY'S CORP: Plaintiffs Appeal Summary Judgment Order NCL CORP: Appeals Court Affirms Denial of Class Certification NEW ENGLAND COMPOUNDING: $100+ Mil. Creditors Fund to Be Set Up OCALA, FL: May Face Class Action Over Fire Service Fees PHENIX TRANSPORTATION: Cheated Long-Haul Drivers of OT, Suit Says PIEDMONT OFFICE: Had $1.3-Mil Insurance Recoveries as of Sept. 30 PIONEER NATURAL: Court Approved Settlement of Claims PPL CORP: Louisville Residents File Class Action Over Coal Ash PVR PARTNERS: Weisslaw LLP Files Class Action in Pennsylvania QUESTCOR PHARMA: Court Partially Granted Bid to Dismiss Complaint RIDDELL INC: Faces Suit Over Helmets' Concussion Reduction Tech SCHLUMBERGER LTD: Seeks Dismissal of Overtime Class Action SEQWATER: Ipswich Flood Victims Sign Up for Class Action SOUTHWEST AIRLINES: Summary Judgment Bids to Be Briefed by Jan. 15 TEXAS: Petition to Appeal Class Cert. in Foster Kids' Suit Tossed TIME WARNER CABLE: Court Approved Motion to Dismiss Two Lawsuits TREX COMPANY: Wins Final Okay of Defective Deck Suit Settlement UNITED STATES: Sen. Rand Paul Mulls NSA Surveillance Class Action VANGUARD NATURAL: Del. Supreme Court Affirms Suit Dismissal WILLIAMS COMPANIES: ADEC to Enter Compliance Order in 2014 XEROX CORP: Remains Defendant in Consolidated Securities Action * Plaintiff Lawyers Attempt to Skirt CAFA in Texas, Report Shows Asbestos Litigation ASBESTOS UPDATE: Thompson Bldg. Gets OSHA Citation for Exposure ASBESTOS UPDATE: WR Grace Inks Last Settlement Before Ch. 11 Exit ASBESTOS UPDATE: Metex Mfg. Files Plan with $190MM Fibro Trust ASBESTOS UPDATE: Bid to Dismiss "Berensmann" Suit Denied ASBESTOS UPDATE: Nevada Court Dismisses Inmate's Civil Rights Suit ASBESTOS UPDATE: Court Allows Discovery in "Amick" Suit ASBESTOS UPDATE: NY Ct. Denies Summary Judgment in "Carlucci" Suit ASBESTOS UPDATE: Summary Judgment Bid in "Herlihy" Suit Denied ASBESTOS UPDATE: Libby Worker's Claim Deemed Time-Barred ASBESTOS UPDATE: Bid for Reconsideration in "Lefevre" Suit Denied ASBESTOS UPDATE: Summary Judgment Bids Granted in "Cabasug" Suit ASBESTOS UPDATE: Wis. Appeals Court Flips Ruling in "Viola" Suit ASBESTOS UPDATE: Tenn. Appeals Court Flips Ruling in "Payne" Suit ASBESTOS UPDATE: Fibro Victims in Firm Build Case Speak in Court ASBESTOS UPDATE: Schools Containing Fibro Required to Place Signs ASBESTOS UPDATE: "Dust All Over" Mudgee Mayor's Fibro Clean-Up ASBESTOS UPDATE: India Urged to Ban Import and Usage of Fibro ASBESTOS UPDATE: Lower Exposure No Protection Against Mesothelioma ASBESTOS UPDATE: Group Sees Great Potential in Hotel Renovation ASBESTOS UPDATE: Action Needed as Firefighter Cancer Rates Rise ASBESTOS UPDATE: Appeals Court Upholds Fibro Convictions ASBESTOS UPDATE: Deadly Dust Removed from Towneley Hall ASBESTOS UPDATE: Fibro Victims Ask Yale to Revoke Honorary Degree ASBESTOS UPDATE: Workers Exposed to Deadly Dust for Seven Years ASBESTOS UPDATE: U.K. Revises Guidance on Managing Fibro ASBESTOS UPDATE: Scott Depot Couple Names 55 Defendants in Suit ASBESTOS UPDATE: Residents Raise Concern Over Dumped Fibro ASBESTOS UPDATE: Lincoln County to Take Over EPA's ERS Program ASBESTOS UPDATE: Teacher's Diagnosis Highlights Risk in Schools ASBESTOS UPDATE: Jury Awards $27.5MM to English Professor ASBESTOS UPDATE: Naturally Occuring Deadly Fibers Found in Nevada ASBESTOS UPDATE: Japan Government Liable for Fibro Exposure ASBESTOS UPDATE: Barnstaple Man Died from Fibro Exposure ASBESTOS UPDATE: Shrader Law Offers Consultations to Veterans ASBESTOS UPDATE: Wash. Court Flips Summary Judgment in Fibro Suit ASBESTOS UPDATE: Ilfracombe Man Died from Deadly Dust Exposure ASBESTOS UPDATE: Third Fibro Testing Takes Place at Fire Site ASBESTOS UPDATE: New Trier Board OKs Winnetka Campus Fibro Removal ASBESTOS UPDATE: Victims Stress Vitality of Lawyers' House Calls ASBESTOS UPDATE: WHO Lists Toxic Agents in Environment ASBESTOS UPDATE: Grant Sought for Fibro Removal on Isthmus ASBESTOS UPDATE: Wis. Court Says Fibro Case Wrongly Dismissed ASBESTOS UPDATE: Developers Claim Fibro Will Become Health Risk ASBESTOS UPDATE: Principal Reports Fibro Hazards, Loses Protection ASBESTOS UPDATE: Defendant Entitled to Info in Take-Home Case ASBESTOS UPDATE: Wash. Court Dismisses Shipyard Exposure Claims ASBESTOS UPDATE: Judge Declares Mistrial in Hot Tops Case ********* ALLSTATE CORPORATION: Court Remanded Montana Case for Trial ----------------------------------------------------------- The Montana Supreme Court in August 2013 affirmed in part, and reversed in part, the lower court's order granting plaintiff's motion for class certification and remanded the case for trial, according to The Allstate Corporation's Form 10-Q filed on October 30, 2013, with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2013. Allstate is vigorously defending a class action lawsuit in Montana state court challenging aspects of its claim handling practices in Montana. The plaintiff alleges that the Company adjusts claims made by individuals who do not have attorneys in a manner that unfairly resulted in lower payments compared to claimants who were represented by attorneys. In January 2012, the court certified a class of Montana claimants who were not represented by attorneys with respect to the resolution of auto accident claims. The court certified the class to cover an indefinite period that commences in the mid-1990's. The certified claims include claims for declaratory judgment, injunctive relief and punitive damages in an unspecified amount. Injunctive relief may include a claim process by which unrepresented claimants could request that their claims be readjusted. No compensatory damages are sought on behalf of the class. The Company appealed the order certifying the class. In August 2013, the Montana Supreme Court affirmed in part, and reversed in part, the lower court's order granting plaintiff's motion for class certification and remanded the case for trial. The Company petitioned for rehearing of the Montana Supreme Court's decision, which the Court denied. To date no discovery has occurred related to the potential value of the class members' claims. The Company has asserted various defenses with respect to the plaintiff's claims, which have not been finally resolved. In the Company's judgment a loss is not probable. The Allstate Corporation (Allstate) is a holding company for Allstate Insurance Company. The Company's business is conducted principally through Allstate Insurance Company, Allstate Life Insurance Company and their affiliates. It is engaged, principally in the United States, in the property-liability insurance, life insurance, retirement and investment product business. Allstate's primary business is the sale of private passenger auto and homeowners insurance. The Company also sells several other personal property and casualty insurance products, select commercial property and casualty coverages, life insurance, annuities, voluntary accident and health insurance and funding agreements. It conducts its business primarily in the United States. Allstate has four business segments: Allstate Protection, Allstate Financial, Discontinued Lines and Coverages and Corporate and Other. In October 2011, the Company acquired Esurance and Answer Financial from White Mountains Insurance Group. ANZ BANK: Thousands of New Zealanders Join Fee Class Action ----------------------------------------------------------- Corazon Miller, writing for New Zealand News, reports that thousands of New Zealanders are expressing their displeasure over penalty fees charged by their banks. At least 17,000 customers have joined the action by Fair Play on Fees Group against the ANZ bank. Lawyer Andrew Hooker, who is fronting the action, says the case should be in court by early next year. "Were very confident, the legal principle that we're arguing has already been upheld in the high court of Australia, and we believe that our case is very strong." The Fair Play on Fees Group has also launched a similar case against Kiwi Bank and is hoping to file against BNZ, ASB and Westpac early next year. AUSTRALIA: CFS Settles Bushfire Class Action for AUD60 Million -------------------------------------------------------------- Sean Fewster, writing for The Advertiser, reports that a AUD60 million class action lawsuit over the deadly 2005 Eyre Peninsula bushfires has settled out of court for AUD8 million in a compromise deal. Eyre Peninsula graziers are likely to receive only portions of that figure, however, because the settlement must also cover eight years' worth of lawyers' bills and court costs. Approving the settlement between the graziers, CFS and ute-owner Marco Visic on Dec. 17, Supreme Court Justice Tim Anderson said the amount of money for legal expenses had caused him concern. "My concern has been the relatively small return for the plaintiffs, having regard to the total amount of the settlement," he said. "The plaintiffs are at a point where they will need to contribute substantial amounts of money to their solicitors for the work (of the class action) to continue (to trial). "There is substantial risk for them should it fail . . . very significant amounts of money would have to be paid into court as security against loss (which) the plaintiffs would have to borrow. "I consider that, overall, approval of the settlement is warranted." In November last year, The Advertiser revealed the graziers, led by Robert Proude, was suing the CFS and Mr. Visic for compensation. The 2005 fires -- known as Black Tuesday -- killed nine people, burned 77,000ha and destroyed 93 homes . Mr. Proude subsequently filed Supreme Court action against Mr. Visic and the CFS, claiming the total value of his destroyed property, including 2205 sheep, was AUD1,862,795. In December, other graziers were granted permission to join the lawsuit as a class action -- together, they claimed the CFS mismanaged its response to the fires. Mr. Visic, whose ute started the blaze, filed papers agreeing with that assertion, saying any compensation should come out of CFS coffers and not his wallet. In June, the CFS asked the court to throw out the case, saying the fires were beyond anyone's capacity to control. It claimed it and its volunteers were therefore not liable for the damage caused. In July, Justice Malcolm Blue dismissed that application, saying the question of whether the CFS owed a duty of care to bushfire victims was too complex to be answered outside of a full trial. Since then, the parties have repeatedly met behind closed doors in unsuccessful attempts to settle the matter. In November, Justice Malcolm Blue was told those negotiations had finally borne fruit, and that a compromise had been reached. All that remained was for another judge, Justice Anderson, to approve the compromise deal. On Dec. 16, Justice Anderson said he had met with Mr. Proude and lawyers representing the graziers during closed-court hearings. He said he was satisfied Mr. Proude and those who joined the class action understood both the terms of the proposed settlement and how the $8 million would be distributed amongst them. Outside court, the parties released a joint statement. Mr. Visic and the CFS continued to "strongly deny all allegations", but said their insurers would pay a total of $8 million. "All parties were concerned at the trauma and anxiety that would be involved in them, witnesses to be called in the trial and all others involved in the fire having to relive the tragic events of January 2005," the statement read. "They are relieved that this can now be avoided." BANK OF AMERICA: Settlement Notification Program Begins ------------------------------------------------------- The United States District Court for the Northern District of California on Dec. 17 disclosed that a notification program is underway, as approved by the United States District Court for the Northern District of California, to alert cellular telephone users that a $32,083,905 Settlement has been reached in a class action lawsuit claiming that Bank of America unlawfully used an automatic telephone dialing system and/or an artificial prerecorded voice to call or text cell phones without the prior express consent of the recipients. Bank of America denies that it did anything wrong and the Court has not decided who is right. The case is known as Rose v. Bank of Am. Corp., Case No. 11-cv-02390-EJD (N.D. Cal.). The Settlement Class includes all individuals who: 1. received one or more non-emergency, default servicing telephone calls from Bank of America regarding a Bank of America Residential Mortgage Loan Account to a cellular telephone through the use of an automatic telephone dialing system and/or an artificial or prerecorded voice between August 30, 2007 and January 31, 2013 (Mortgage Calls); or 2. received one or more non-emergency, default servicing telephone calls from Bank of America regarding a Bank of America Credit Card Account to a cellular telephone through the use of an automatic telephone dialing system and/or an artificial or prerecorded voice between May 16, 2007, and January 31, 2013 (Credit Card Calls); or 3. received one or more non-emergency, default servicing text messages from Bank of America regarding a Bank of America Credit Card Account to a cellular telephone through the use of an automatic telephone dialing system and/or an artificial or prerecorded voice between February 22, 2009, and December 31, 2010 (Credit Card Texts). Those persons who received a Credit Card Text did not also receive a Credit Card Call. A Settlement Fund of $32,083,905 has been established to pay valid claims, attorney fees, service awards, costs, expenses and settlement administration. Additionally, Bank of America has enhanced its business practices to ensure that a borrower has provided consent before being called on a cell phone and that the Bank's loan servicing record reflects the borrower's prior express consent to call his/her cell phone. Millions of notices will be emailed or mailed to known potential Class Members and notices are scheduled to appear across the United States in major consumer publications as well as in hundreds of Sunday newspapers leading up to a hearing on April 4, 2014, when the Court will consider whether to approve the settlement. Those affected by this settlement can submit a claim requesting benefits or they can ask to be excluded from, or object to, the settlement and its terms. The deadline for objections is March 21, 2014. The deadline for exclusions is March 21, 2014. The deadline to submit a Claim Form is March 21, 2014. Class Members can submit claims online, by mail or by calling the toll- free number. The toll-free number, 1-877-919-9186, and the website, www.BOATCPASettlement.com, are active and Class Members can access the notice, claim form, settlement agreement and other documents. Those affected may also write with questions to the Settlement Administrator, PO BOX 3410, Portland, OR 97208-3410 or send an e-mail to info@BOATCPASettlement.com BASIC RESEARCH: Snooki Helps Peddle Zantrex Diet Pills, Suit Says ----------------------------------------------------------------- "Jersey Shore" alum Snooki joined up with recidivist snake-oil salesmen to peddle Zantrex diet pills that don't work, a class action claims in Federal Court, according to Nick Divito, writing for Courthouse News Service. Lead plaintiff Ashley Brady sued Basic Research LLC, Zoller Laboratories, three of their officers, and Nicole Polizzi aka Snooki. All three officers have been ordered to cease and desist selling bogus weight-loss products, Brady claims in the lawsuit. Brady says she bought a bottle of Zantrex-3 in 2010 after reading the label's promises that the drug would provide "546% More Weight Loss Than America's #1 Selling Ephedra-Based Diet Pill," and that it would make her lose weight "without diet and exercise." Brady claims that Zantrex combines caffeine with herbs that are "unsafe and ineffective for weight control or appetite suppression." She claims that Snooki is the face of the Zantrex brand, promoting it on her websites, on YouTube, Twitter and Facebook, and in celebrity gossip magazines. "Snooki represents . . . that Zantrex is safe and effective for weight loss and fat loss," the lawsuit states. "These representations are false, misleading and deceptive because . . . Zantrex is neither effective nor safe for weight loss nor fat loss." According to the lawsuit, Basic Research bills itself as "one of the largest 'nutraceutical' companies in the United States, with annual sales revenues in excess of $50 million." Many of its affiliates or associates are based in Utah, as is defendant Zoller and all three individual defendants, according to the complaint. Defendant Dennis W. Gay is a principal and director of both companies; the FTC enjoined him in a similar weight-loss scam in 2006, according to the lawsuit. Defendant Daniel B. Mowrey calls himself Basic Research's "Director of Scientific Affairs," and also was enjoined from this conduct by the FTC's 2006 injunction, Brady says. Defendant Mitchell K. Friedlander, Basic Research's self- proclaimed "marketing guru," was slapped with a cease-and-desist order from the U.S. Postal Service in 1985, also involving weight- loss snake oil, and a second USPS order involving bogus breast enlargement products, according to the lawsuit. Brady seeks class certification, an injunction and damages for fraud, breach of warranty, unjust enrichment, negligent misrepresentation, and violations of the Magnuson-Moss Warranty Act. The Plaintiff is represented by: Scott A. Bursor, Esq. Joseph Ignatius Marchese, Esq. Neal J. Deckant, Esq. Yitzchak Kopel, Esq. BURSOR & FISHER, P.A. 888 Seventh Avenue New York, NY 10019 Telephone: (646) 837-7410 Facsimile: (212) 989-9163 E-mail: scott@bursor.com jmarchese@bursor.com ndeckant@bursor.com ykopel@bursor.com The case is Brady v. Basic Research, L.L.C. et al., Case No. 2:13- cv-07169-SJF-ARL (E.D.N.Y., December 16, 2013). COMMUNITY HEALTH: Faces Class Suits Over Breach of Fiduciary Duty ----------------------------------------------------------------- Community Health Systems, Inc., is a defendant in three purported class action cases alleging a breach of fiduciary duty. Three purported class action cases have been filed in the Circuit Court of Collier County, Florida: namely, Aliaga vs. Health Management Associates, Inc. et al., filed August 1, 2013; Lopriore vs. Health Management Associates, et al., filed August 5, 2013; and Copeland vs. Health Management Associates, et al., filed August 8, 2013. All allege a breach of fiduciary duty by the board members of HMA arising out of the approval of the proposed acquisition by the Company. Community Health Systems and FWCT-2 Acquisition Corporation are also named as aiding and abetting the alleged breaches of fiduciary duty. A fourth case, Smilow vs. Health Management Associates, Inc. et al., filed August 13, 2013 does not name Community Health Systems or FWCT-2 Acquisition Corporation as a defendant. Further, on August 5, 2013, a case styled Margolis & Horwitz vs. Health Management Associates, Inc. et al., was filed in Delaware Chancery Court also alleging a breach of fiduciary duty by the HMA board members arising out of the approval of the proposed acquisition by the Company. In that case, the Company and FWCT-2 Acquisition Company were named as aiding and abetting the alleged breaches of fiduciary duty. Community Health Systems is vigorously defending these actions, according to its Form 10-Q filed on October 31, 2013, with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2013. Community Health Systems, Inc., is an operator of hospitals in the United States. The Company provides healthcare services through the hospitals that it owns and operates in non-urban and selected urban markets throughout the United States. As of December 31, 2012, the Company owned or leased 135 hospitals, Consisting of 131 general acute care hospitals and four stand-alone rehabilitation or psychiatric hospitals. These hospitals are geographically diversified across 29 states, with an aggregate of 20,334 licensed beds. The Company generates revenues by providing a range of general and specialized hospital healthcare services and other outpatient services to patients in the communities in which the Company are located. On March 1, 2012, the Company acquired MetroSouth Medical Center (330 licensed beds) in Blue Island, Illinois. On July 1, 2012, the Company's subsidiaries acquired all of the assets of Memorial Health Systems in York, Pennsylvania. COMMUNITY HEALTH: Bid to Dismiss NYC Funds Suit Fully Briefed ------------------------------------------------------------- Community Health Systems, Inc., is a defendant in three purported class action cases seeking class certification on behalf of purchasers of the Company's common stock between July 27, 2006 and April 11, 2011 and alleging that misleading statements resulted in artificially inflated prices for the Company's common stock, according to the Company's Form 10-Q filed on October 31, 2013, with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2013. Three purported class action cases have been filed in the United States District Court for the Middle District of Tennessee; namely, Norfolk County Retirement System v. Community Health Systems, Inc., et al., filed May 9, 2011; De Zheng v. Community Health Systems, Inc., et al., filed May 12, 2011; and Minneapolis Firefighters Relief Association v. Community Health Systems, Inc., et al., filed June 21, 2011. All three seek class certification on behalf of purchasers of the Company's common stock between July 27, 2006 and April 11, 2011 and allege that misleading statements resulted in artificially inflated prices for the Company's common stock. In December 2011, the cases were consolidated for pretrial purposes and NYC Funds and its counsel were selected as lead plaintiffs/lead plaintiffs' counsel. The Company's motion to dismiss this case has been fully briefed and is pending before the court. The Company believes this consolidated matter is without merit and will vigorously defend this case. Community Health Systems, Inc., is an operator of hospitals in the United States. The Company provides healthcare services through the hospitals that it owns and operates in non-urban and selected urban markets throughout the United States. As of December 31, 2012, the Company owned or leased 135 hospitals, Consisting of 131 general acute care hospitals and four stand-alone rehabilitation or psychiatric hospitals. These hospitals are geographically diversified across 29 states, with an aggregate of 20,334 licensed beds. The Company generates revenues by providing a range of general and specialized hospital healthcare services and other outpatient services to patients in the communities in which the Company are located. On March 1, 2012, the Company acquired MetroSouth Medical Center (330 licensed beds) in Blue Island, Illinois. On July 1, 2012, the Company's subsidiaries acquired all of the assets of Memorial Health Systems in York, Pennsylvania. CONSECO LIFE: Parties in "Burnett" Suit Must Engage in Discovery ---------------------------------------------------------------- In IN RE CONSECO LIFE INSURANCE CO. LIFE TREND INSURANCE MARKETING AND SALES PRACTICE LITIGATION, NO. C 10-MD-02124 SI, Defendants Conseco Life, CNO Financial Group, Inc., CDOC, Inc., and CNO Services, LLC, moved to dismiss the individual complaint captioned WILLLIAM JEFFREY BURNETT and JOE H. CAMP, Plaintiffs, v. CONSECO LIFE INSURANCE COMPANY, CNO FINANCIAL GROUP, INC., CDOC, INC. and CNO SERVICES, LLC, Defendants, CASE NO. C 12-5906 SI, (N.D. Cal.) for lack of personal jurisdiction and for failure to state a claim. Plaintiffs William Burnett and Joe Camp have filed an opposition, to which Conseco has replied. District Judge Susan Illston granted, in part, and denied, in part, the motion to dismiss with leave to amend. The Court granted the Defendants' motion to dismiss for lack of personal jurisdiction and denied the defendants' motion to dismiss for failure to state a claim. The Court directed the parties to engage in jurisdictional discovery. Plaintiffs may amend their complaint only as to the jurisdictional issues within 45 days of the Order, ruled Judge Illston. A copy of the District Court's Nov. 18, 2013 Order is available at http://is.gd/grSCz8from Leagle.com. CONSUMER PORTFOLIO: Court May Set Pardee Issue for Trial in 2014 ---------------------------------------------------------------- Consumer Portfolio Services, Inc., expects a U.S. federal court to set for trial in 2014 the issues regarding its obligation to indemnify Jonathan Pardee. According to the Company's Form 10-Q filed on October 30, 2013, with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2013: "We were for some time a defendant in a class action (the "Stanwich Case") brought in the California Superior Court, Los Angeles County. The original plaintiffs in that case were persons entitled to receive regular payments (the "Settlement Payments") pursuant to earlier settlements of claims, generally personal injury claims, against unrelated defendants. Stanwich Financial Services Corp. ("Stanwich"), an affiliate of the former chairman of our board of directors, is the entity that was obligated to pay the Settlement Payments. Stanwich defaulted on its payment obligations to the plaintiffs and in June 2001 filed for reorganization under the Bankruptcy Code, in the federal bankruptcy court in Connecticut. By February 2005, we had settled all claims brought against us in the Stanwich Case. "In November 2001, one of the defendants in the Stanwich Case, Jonathan Pardee, asserted claims for indemnity against us in a separate action, which is now pending in federal district court in Rhode Island. We have filed counterclaims in the Rhode Island federal court against Mr. Pardee, and have filed a separate action against Mr. Pardee's Rhode Island attorneys, in the same court. The litigation between Mr. Pardee and us was stayed for several years through September 2011, awaiting resolution of an adversary action brought against Mr. Pardee in the bankruptcy court, which is hearing the bankruptcy of Stanwich. "Pursuant to an agreement with the representative of creditors in the Stanwich bankruptcy, that adversary action has been dismissed. Under that agreement, we paid the bankruptcy estate $800,000 and abandoned our claims against the estate, while the estate has abandoned its adversary action against Mr. Pardee. With the dismissal of the adversary action, all known claims asserted against Mr. Pardee have been resolved without his incurring any liability. Accordingly, we believe that this resolution of the adversary action will result in limitation of our exposure to Mr. Pardee to no more than some portion of his attorneys fees incurred. The stay in the action against us in Rhode Island has been lifted, and both we and Mr. Pardee filed motions for summary judgment. The court ruled on those motions in February 2013, denying our motion, and granting Mr. Pardee's motion as to liability. The issues remaining for trial are the extent of our obligation to indemnify Mr. Pardee. There is no trial date set, but our expectation is that the court may, not earlier than December 2013, set the matter for trial in 2014." Consumer Portfolio Services, Inc., was formed in California on March 8, 1991. It specializes in purchasing and servicing retail automobile installment sale contracts originated by licensed motor vehicle dealers located throughout the United States ("dealers") in the sale of new and used automobiles, light trucks and passenger vans. Through its purchases, the Company provides indirect financing to dealer customers for borrowers with limited credit histories, low incomes or past credit problems ("sub-prime customers"). The Company serves as an alternative source of financing for dealers, allowing sales to customers who otherwise might not be able to obtain financing. CONSUMER PORTFOLIO: Facing Two Consumer Class Actions ----------------------------------------------------- Consumer Portfolio Services, Inc., is currently defending two class actions filed by consumers, according to the Company's Form 10-Q filed on October 30, 2013, with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2013. The Company states: "We are routinely involved in various legal proceedings resulting from our consumer finance activities and practices, both continuing and discontinued. Consumers can and do initiate lawsuits against us alleging violations of law applicable to collection of receivables, and such lawsuits sometimes allege that resolution as a class action is appropriate. We are currently defending two such class actions. For the most part, we have legal and factual defenses to such claims, which we routinely contest or settle (for immaterial amounts) depending on the particular circumstances of each case. We have recorded a liability as of September 30, 2013 with respect to such matters, in the aggregate." Consumer Portfolio Services, Inc., was formed in California on March 8, 1991. It specializes in purchasing and servicing retail automobile installment sale contracts originated by licensed motor vehicle dealers located throughout the United States ("dealers") in the sale of new and used automobiles, light trucks and passenger vans. Through its purchases, the Company provides indirect financing to dealer customers for borrowers with limited credit histories, low incomes or past credit problems ("sub-prime customers"). The Company serves as an alternative source of financing for dealers, allowing sales to customers who otherwise might not be able to obtain financing. DEWEY BEACH, DE: Judge Nixes Highway One Businesses' Tax Suit ------------------------------------------------------------- Kara Nuzback, writing for CapeGazette.com, reports Dewey Beach has the power to levy a tax on businesses, a Chancery Court judge has ruled. In a Dec. 17 decision, Vice Chancellor Sam Glasscock wrote, "the town of Dewey Beach has the authority to levy a business license tax, and relief from exercise of that authority must come through the ballot, not this bench." Highway One businesses, including Rusty Rudder, Bottle and Cork, and Northbeach, filed a class-action complaint Feb. 26 in Delaware Chancery Court against the town of Dewey Beach, Mayor Diane Hanson, commissioners Courtney Riordan, Anna Legates and Gary Mauler, and former Commissioner Joy Howell. In the complaint, Highway One attorney Stephen Spence argued business license fees, which are imposed annually, are used to fund town operations and thus should be deemed a tax. "The town's charter, as enacted by the General Assembly, does not authorize the imposition and collection of a tax on businesses," Mr. Spence wrote. He also said the town's method for calculating business license fees for restaurants -- $273 base fee plus $6 per person allowed in the establishment by the Fire Marshal's Office -- qualifies the fee as a property tax, which can only be imposed by referendum. In a June 28 response, Wilmington attorney William Manning, representing the town, said certain types of taxes, such as a property tax, are specifically prohibited in the charter; a tax on businesses is not specifically prohibited. Mr. Manning said the All Powers Clause in the town charter gives town council the power to tax, and he asked the court to dismiss Highway One's complaint for failing to state a claim. According to the charter, "All powers of the town of Dewey Beach, whether expressed or implied, shall be exercised as prescribed by this charter; or if not prescribed herein, by ordinance or resolution of the commissioners." Judge Glasscock ruled, "Such powers include the power to tax." The judge also said no referendum was necessary to impose the business license fees. He wrote, ". . . The tax is not rendered on personal or real property, or the value thereof, but on the grant of a right to conduct business or pursue an occupation." In his conclusion, Judge Glasscock said the charter clearly grants the town broad taxing authority. Highway One has 30 days to file an appeal of Judge Glasscock's decision. The initial lawsuit was filed amidst discussions of whether town officials should impose a gross receipts tax on businesses in town. The proposal was spearheaded by the town budget and finance committee, which argued town expenses surpassed revenues, and commercial businesses contributed less money than other sectors in town. Town council tabled the proposal in July, opting instead to allow businesses to work with the town manager to come up with a new revenue source to help fund town operations. So far, no alternative proposals to the gross receipts tax have been presented to the public. Town Manager Marc Appelbaum said he is pleased with Judge Glasscock's decision to dismiss the lawsuit, and he plans to discuss its implications with town officials. Mr. Appelbaum said town finances are currently under control. "The town beat its budget by $200,000 last year," he said. "The town is confident it will hit its budget this year." Mr. Appelbaum said he would begin drafting the budget for next fiscal year in January, and he would accept input from the community. Neither Spence nor Highway One partner Alex Pires could be reached at press time. DIGITALGLOBE INC: GeoEye Shareholder Litigation Now Closed ---------------------------------------------------------- Notices have been sent to the affected class of GeoEye Inc. shareholders and on September 6, 2013, a federal district court approved the settlement of all securities class actions and the matter is now closed, according DigitalGlobe, Inc.'s Form 10-Q filed on October 31, 2013, with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2013. In July 2012, GeoEye and the GeoEye board of directors, DigitalGlobe, 20/20 Acquisition Sub, Inc. and WorldView, LLC were named as defendants in three purported class action lawsuits filed in the United States District Court for the Eastern District of Virginia. The lawsuits were brought on behalf of proposed classes consisting of all public holders of GeoEye common stock, excluding the defendants and, among others, their affiliates. On September 7, 2012, the Court ordered the consolidation of the three actions as In re GeoEye, Inc., Shareholder Litigation, Consol. No. 1:12-cv-00826-CMH-TCB. On September 24, 2012, plaintiffs filed an amended consolidated complaint alleging the GeoEye board of directors breached their fiduciary duties by allegedly, among other things, failing to maximize stockholder value, agreeing to preclusive deal protection measures and failing to disclose certain information necessary to make an informed vote on whether to approve the proposed acquisition. DigitalGlobe is alleged to have aided and abetted these breaches of fiduciary duty. In addition, the amended complaint contains allegations that the GeoEye board of directors and DigitalGlobe violated Section 20(a) and Section 14(a) of the Securities Exchange Act of 1934, and Rule 14a-9 promulgated thereunder, by the filing of a Registration Statement allegedly omitting material facts and setting forth materially misleading information. On October 9, 2012, following arm's-length negotiations, the parties to the consolidated action entered into a memorandum of understanding ("MOU") to settle all claims asserted therein on a class-wide basis. GeoEye and the GeoEye board of directors, DigitalGlobe, 20/20 Acquisition Sub, Inc. and WorldView, LLC entered into the MOU solely to avoid the costs, risks and uncertainties inherent in litigation, and without admitting any liability or wrongdoing. In connection with the MOU, DigitalGlobe agreed to make additional disclosures in Amendment No. 1 to the Registration Statement. The settlement set forth in the MOU includes a release of all claims against defendants alleged in the corrected amended complaint. In January 2013, the parties completed confirmatory discovery. On April 24, 2013, the parties submitted the final settlement to the Court for approval. Notices were sent to the affected class of GeoEye shareholders and on September 6, 2013, the Court approved the settlement of all securities class actions. Payments made in connection with the settlement were not material. The matter is now closed. DigitalGlobe, Inc. (DigitalGlobe) is a global provider of commercial earth imagery products and information services. The Company's products support a range of uses, including defense and intelligence, and civil agencies, location based services (LBS), and other verticals, such as financial services, mining, telecommunications, and oil and gas exploration. It also offers analysis products and services to provide context and insight to imagery. It operates in two segments: defense and intelligence, and commercial. Defense and intelligence revenue is sourced from domestic and international government defense and intelligence customers, including the majority of those in its DAP. Revenue in its commercial segment is sourced from customers in LBS, international civil government and from customers in other verticals. During the year ended December 31, 2011, it generated 77% of revenues from defense and intelligence customers, and 23% of revenues from commercial customers. DOW CHEMICAL: Appeals Urethane Price Fixing Class Action -------------------------------------------------------- Jane Denny, writing for Urethanes Technology International, reports that The Dow Chemical Co presented its appeal case in a bid to overturn a $1 billion (EUR1.37 billion) urethane price fixing judgment. The company is the only one of a handful -- which included Bayer AG, BASF SE and Huntsman International -- to continue to fight the 2004-consolidated class action price-fixing claim comprising around 2,400 purchasers. As part of its appeal against a jury-conviction for anti-trust conspiracy heard in Denver on Dec. 6, Dow Chemical said prices "during the alleged conspiracy were basically flat, and then rose after the conspiracy allegedly ended." According to testimony from Dr. Kenneth Elzinga on behalf of Dow Chemical, the variations in prices during the period of alleged price-fixing showed the "flip side of what you would normally see" occur with a cartel. Furthermore, Dow Chemical's arguments to the 10th Circuit Appeals court claim that the class certification was unjustified as it prevented Dow Chemical showing how some class members had individually negotiated lower rates and were unaffected by the allegations of price-fixing. The company also raised concerns over the court's acceptance of statistical models designed by Dr James McClave -- whose models were rejected by the Supreme Court in another action. EURONET WORLDWIDE: Settled Lawsuit Alleging Wage & Hour Violations ------------------------------------------------------------------ Euronet Worldwide, Inc. has reached an agreement to settle a class action lawsuit filed by a former employee alleging wage and hour violations relating to meal and rest period requirements, according to the Company's Form 10-Q filed on October 31, 2013, with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2013. During 2012, the Company was served with a class action lawsuit filed by a former employee alleging wage and hour violations relating to meal and rest period requirements. The Company has reached an agreement to settle this lawsuit for an immaterial amount and, together with the plaintiffs in the case, is following court procedures to finalize the settlement. The Company expects such procedures to be completed within the next twelve months. Euronet Worldwide, Inc. (Euronet) is a global electronic payments provider. The Company offer payment and transaction processing and distribution solutions to financial institutions, retailers, service providers and individual consumers. Its primary product offerings include automated teller machine (ATM), point-of-sale (POS) and card outsourcing services, electronic distribution of prepaid mobile airtime and other electronic payment products, and global consumer money transfer services. As of December 31, 2011, the Company operates in three segments: the EFT Processing Segment, the epay Segment and the Money Transfer Segment. In November 2011, the Company acquired 535 ATMs and over 350 retailer contracts from Diebold's cash4you Network. In November 2012, the Company through its Ukrainian subsidiary, Euronet Ukraine LLC, announced the acquisition of ATMs from UkrSibbank, a subsidiary of BNP Paribas. In January 2013, the Company acquired Pure Commerce. EXECUTIVE FLIGHT: Responds to Class Action Over Lemon Creek Spill ----------------------------------------------------------------- Nelson Star reports that the company behind the truck that spilled its load of jet fuel into Lemon Creek this summer says the driver got bad directions. Executive Flight Centre is responding to a class action lawsuit filed by a Slocan Valley resident which names the Province, the helicopter company requiring the fuel for forest fire fighting and the transport company. Executive Flight Centre says they were given incorrect directions by the province who verbally communicated they should use Lemon Creek Road. They also say the helicopter company Transwest provided no information on how to reach the staging area and delegated directions to the province. Before the tanker drove up Lemon Creek Road, another Executive Flight Centre driver used the road to try access the fueling station. A maintenance worker, who happened to be on site, told him Lemon Creek wasn't the proper way to access the staging area and gave out new directions. Executive Flight Centre says this driver informed the Province of the mistaken directions but nothing was done to rectify the situation. "The Province knew, or should have know that, in the emergency conditions created by the firefighting operation, motorists involved in that operation, including Executive Fuel's drivers, might mistakenly use Lemon Creek Road to access the staging area," reads the company's response to the lawsuit. They go on to say the road, under management of the Province, was dangerous and not properly maintained. On July 26, 33,000 litres of jet fuel entered Lemon Creek and downstream rivers resulting in an evacuation of people and a massive cleanup. Executive Flight Centre says they've spent $4 million on that cleanup and wants that bill paid as well as any lawsuit payouts covered. The Province says they abide by the "polluter-pay principle" which keeps taxpayers from being on the hook for cleanups. Slocan Valley resident John Wittmayer comments on the "blame game" on Slocan Valley Emergency Response, a Facebook page that has documented the spill and its outcomes. "There will be this assessing blame game and positioning to reduce the payout," he says. "Industry should never be allowed to monitor themselves, and they will need to be accountable for their mishaps. The provincial government has an opportunity here to prove that they have the stewardship values to ensure this never happens again. If they ignore their responsibility in the matter, they will confirm what many people already suspect -- that they are pro industry at any cost." FACEBOOK INC: Court Refused to Dismiss IPO-Related Litigation ------------------------------------------------------------- Facebook, CEO Mark Zuckerberg, dozens of banks and the NASDAQ must face class-action claims over the social media network's bungled $16 billion initial public offering last May, reports Annie Youderian at Courthouse News Service, citing a federal court ruling. In one class action, investors claimed that Facebook misled them with its warning that higher mobile usage "may negatively affect" the company's revenue when profits were already down. "Facebook was aware of the material negative impact on Facebook's revenues the company had suffered as a result of increasing mobile usage and the company's product decisions 10 days before the IPO," U.S. District Judge Robert Sweet in Manhattan wrote in the first of two rulings released this week. "Plaintiffs have sufficiently pleaded material misrepresentation(s) that could have and did mislead investors regarding the company's future and current revenues," he later concluded in the 83-page ruling, dated Dec. 11 but released Dec. 18. On Dec. 16, Sweet also refused to fully dismiss a $500 million lawsuit accusing the NASDAQ of screwing up the IPO when its technology failed in the early moments of the stock offering. As a result, investors said their buy and sell orders were not properly executed or confirmed on May 18, 2012, the day of Facebook's IPO. Trading started at $38 per share, peaked at $45 on the first day and ended at $31. Investors said NASDAQ had touted the reliability and capability of its technology despite pre-IPO testing that revealed serious system limitations. "Once this testing revealed inadequacies and flaws in light of the upcoming largest IPO in NASDAQ history, NASDAQ had a duty to correct its prior statements as to its capabilities," Sweet wrote. Instead, NASDAQ "continued making untrue statements," according to the 97-page ruling. "Just as a misstatement a company's primary product affects an investors decision to purchase that stock, NASDAQ's failure to correct flawed information about its technology capabilities could have impacted plaintiffs' decision to participate in Facebook's offering and ability to trade during that offering," Sweet wrote. He denied the NASDAQ's motion to dismiss claims stemming from early testing, but said immunity for self-regulatory organizations protects the exchange's decision not to halt trading. The Securities and Exchange Commission fined NASDAQ $10 million this May for its role in the IPO fiasco, though it attributed part of the problem to the size of the IPO and the widespread interest in it. Sweet is presiding over nationwide litigation stemming from the IPO. The Plaintiffs and the Class are represented by: Max W. Berger, Esq. Steven B. Singer, Esq. John J. Rizio-Hamilton, Esq. Catherine E. McCaw, Esq. BERNSTEIN LITOWITZ BERGER & GROSSMAN LLP 1285 Avenue of the Americas New York, NY 10019 Telephone: (212) 554-1400 Facsimile: (212) 554-1444 E-mail: mwb@blbglaw.com steven@blbglaw.com johnr@blbglaw.com catherine.mccaw@blbglaw.com - and - Thomas A. Dubbs, Esq. James W. Johnson, Esq. Louis Gottlieb, Esq. Thomas G. Hoffman, Jr., Esq. LABATON SUCHAROW LLP 140 Broadway New York, NY 10005 Telephone: (212) 907-0700 Facsimile: (212) 818-0477 E-mail: tdubbs@labaton.com jjohnson@labaton.com lgottlieb@labaton.com thoffman@labaton.com - and - David Kessler, Esq. Darren J. Check, Esq. KESSLER TOPAZ MELTZER & CHECK LLP 280 King of Prussia Road Radnor, PA 19087 Telephone: (610) 667-7706 Facsimile: (610) 667-7056 E-mail: dkessler@ktmc.com dcheck@ktmc.com - and - Steven E. Fineman, Esq. Daniel P. Chiplock, Esq. LIEFF CABRASER HEIMANN & BERNSTEIN 250 Hudson Street, 8th Floor New York, NY 10013 Telephone: (212) 355-9500 Facsimile: (212) 355-9592 E-mail: sfineman@lchb.com dchiplock@lchb.com The Defendants are represented by: Andrew B. Clubok, Esq. Brant W. Bishop, Esq. KIRKLAND & ELLIS LLP 601 Lexington Avenue New York, NY 10022 Telephone: (212) 446-4800 Facsimile: (212) 446-4900 E-mail: andrew.clubok@kirkland.com brant.bishop@kirkland.com - and - Susan E. Engel, Esq. Kellen S. Dwyer, Esq. Bob Allen, Esq. KIRKLAND & ELLIS LLP 655 Fifteenth Street, N.W. Washington, D.C. 20005-5793 Telephone: (202) 879-5000 Facsimile: (202) 879-5200 E-mail: susan.engel@kirkland.com kellen.dwyer@kirkland.com bob.allen@kirkland.com - and - Tariq Mundiya, Esq. Todd G. Cosenza, Esq. Sameer Advani, Esq. WILLKIE FARR & GALLAGHER LLP 787 Seventh Avenue New York, NY 10019 Telephone: (212) 728-8000 Facsimile: (212) 728-8111 E-mail: tmundiya@willkie.com tcosenza@willkie.com sadvani@willkie.com - and - Richard D. Bernstein, Esq. Elizabeth J. Bower, Esq. WILLKIE FARR & GALLAGHER LLP 1875 K Street, NW Washington, DC 20006 Telephone: (202) 303-1000 Facsimile: (202) 303-2000 E-mail: rbernstein@willkie.com ebower@willkie.com - and - James P. Rouhandeh, Esq. Charles S. Duggan, Esq. Andrew Ditchfield, Esq. DAVIS POLK & WARDWELL LLP 450 Lexington Avenue New York, NY 10017 Telephone: (212) 450-4000 Facsimile: (212) 701-5800 E-mail: rouhandeh@davispolk.com joshua.dugan@davispolk.com andrew.ditchfield@davispolk.com The case is In Re Facebook, Inc., Ipo Securities And Derivative Litigation, MDL No. 12-2389, in the U.S. District Court for the Southern District of New York. FORD MOTOR: 6th Cir. Keeps Summary Judgment Ruling in "Kuns" Suit ----------------------------------------------------------------- In NANCY L. KUNS, Plaintiff-Appellant, v. FORD MOTOR COMPANY, Defendant-Appellee, NO. 13-3364, Ms. Kuns appealed a district court order granting summary judgment in favor of Ford Motor Company, on Ms. Kuns's claims that Ford violated the federal Magnuson-Moss Warranty Act and breached its express warranty under Ohio law. The size of the class at the time of the original complaint was more than 800,000 members -- encompassing all individuals nation- wide who bought, leased, or otherwise acquired an affected vehicle, and who either suffered a broken window or still retain the vehicle in a defective state. The United States Court of Appeals for the Sixth Circuit affirmed the district court's grant of summary judgment in favor of Ford, saying it agrees with the district court's dismissal of Ms. Kuns' claim, but for different reasons. The Sixth Circuit pointed out that Ford's warranty contains the following provision: [I]f your Ford vehicle is properly operated and maintained, and was taken to a Ford dealership for a warranted repair during the warranty period, then authorized Ford Motor Company dealers, will, without charge, repair, replace, or adjust all parts on your vehicle that malfunction or fail during normal use during the applicable coverage period due to a manufacturing defect in factory-supplied materials or factory workmanship. It further states that the warranty "does not cover any damage caused by . . . the installation or use of a non-Ford Motor Company part." However, as Ms. Kuns pointed out, it was not the window itself that was defective, but the design of the liftgate components, as Ford itself acknowledged in its communications with the National Highway Traffic Safety Administration. Therefore, it is a question of fact whether Ms. Kuns's second breakage was "caused by . . . the installation or use" of a non- Ford part, such that the warranty would not cover a second repair of the glass, held the Sixth Circuit. A copy of the Sixth Circuit's November 19, 2013 Opinion is available at http://is.gd/XkOrbRfrom Leagle.com. GIUMARRA VINEARDS: Class Notice in "Munoz" Suit Gets Initial OK --------------------------------------------------------------- The proposed Class Notice in the case captioned RAFAEL MUNOZ, et al., Plaintiffs, v. GIUMARRA VINEYARDS CORPORATION, Defendant, CASE NO. 1:09-CV-00703-AWI-JLT, (E.D. Cal.) is preliminarily approved. Magistrate Judge Jennifer L. Thurston ordered the Plaintiffs to file a finalized Class Notice with revisions in accordance with the Order for the Court's approval. Along with their request for final approval of the finalized Notice, the Plaintiffs must file a declaration by the certified court interpreter who translated the Notice into Spanish, attesting that the translation is accurate. The Defendant was required to provide updated contact information of potential class members in electronic format to the Plaintiffs and the Class Notice Administrator no later than Dec. 20, 2013. The Class Notice Administrator is required to mail the approved Class Notice no later than Jan. 10, 2014, and track returned or undeliverable mail. The Class Notice will be posted in English and Spanish in locations used by Giumarra to post information directed to workers no later than January 10, 2014. Class members have 45 days to request exclusion, commencing on Jan. 10, 2014. To be valid, exclusions must contain the exact or substantially similar language set forth in the "Election to be Excluded" form provided in the Class Notice and will be postmarked no later than Feb. 24, 2014. The Class Notice Administrator will provide a report under penalty of perjury to Plaintiffs' counsel detailing the mailing processes no later than March 11, 2014. The Defendants' counsel will provide a report under penalty of perjury to Plaintiffs' counsel identifying all exclusion requests received, as well as copies of any exclusion requests, no later than March 11, 2014. The Plaintiffs must also submit a report detailing the results of the exclusion process to the Court no later than March 26, 2014. A copy of the District Court's November 18, 2013 Order is available at http://is.gd/Bl9SQZfrom Leagle.com. GNC HOLDINGS: 73 Hydroxycut-Related Suits Pending at Sept. 30 ------------------------------------------------------------- GNC Holdings, Inc., disclosed in its Form 10-Q report filed on October 31, 2013, with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2013, that as of September 30, there were 73 pending lawsuits related to Hydroxycut in which GNC has been named, including 67 individual, largely personal injury claims and six putative class action cases, generally inclusive of claims of consumer fraud, misrepresentation, strict liability and breach of warranty. GNC said the United States Judicial Panel on Multidistrict Litigation consolidated pretrial proceedings of many of the pending actions in the Southern District of California (In re: Hydroxycut Marketing and Sales Practices Litigation, MDL No. 2087)." In 2009, the FDA issued a warning on several Hydroxycut-branded products manufactured by Iovate Health Sciences U.S.A., Inc. ("Iovate") based on 23 reports of liver injuries from consumers who claimed to have used the products between 2002 and 2009. As a result, Iovate voluntarily recalled 14 Hydroxycut-branded products. Following the recall, GNC was named, among other defendants, in approximately 93 lawsuits, including a number of putative class action cases, related to Hydroxycut-branded products in 14 states. Iovate accepted GNC's tender request for defense and indemnification under the purchasing agreement in these matters. The parties in the consolidated class actions reached a settlement, which remains subject to final approval by the Court. There is one remaining objector to the settlement, and the Court scheduled a related evidentiary hearing for November 15, 2013. The Company is not required to make any payments under the settlement agreement. GNC also disclosed that "In May 2013, the parties to the individual personal injury cases signed a Master Settlement Agreement, under which we are not required to make any payments. After the Master Settlement Agreement was signed, a new case was filed against Iovate and several other defendants, including us, in Alabama state court. Iovate is working to include this case into the master settlement. Assuming that this most recently filed case is included in the Master Settlement Agreement, and following final court approval of the Master Settlement Agreement pertaining to the individual personal injury cases and the settlement of the consolidated class action suits, all of the Hydroxycut claims currently pending against us will be resolved without any payment." The Company also stated: "We are engaged in various legal actions, claims and proceedings arising in the normal course of business, including claims related to breach of contracts, products liabilities, intellectual property matters and employment-related matters resulting from our business activities." The Company added: "As a manufacturer and retailer of nutritional supplements and other consumer products that are ingested by consumers or applied to their bodies, we have been and are currently subjected to various product liability claims. Although the effects of these claims to date have not been material to us, it is possible that current and future product liability claims could have a material adverse effect on our business, financial condition, results of operations or cash flows. We currently maintain product liability insurance with a deductible/retention of $4.0 million per claim with an aggregate cap on retained loss of $10.0 million. We typically seek and have obtained contractual indemnification from most parties that supply raw materials for our products or that manufacture or market products we sell. We also typically seek to be added, and have been added, as an additional insured under most of such parties' insurance policies. We are also entitled to indemnification by Numico for certain losses arising from claims related to products containing ephedra or Kava Kava sold prior to December 5, 2003. However, any such indemnification or insurance is limited by its terms and any such indemnification, as a practical matter, is limited to the creditworthiness of the indemnifying party and its insurer, and the absence of significant defenses by the insurers. We may incur material products liability claims, which could increase our costs and adversely affect our reputation, revenue and operating income." GNC Holdings, Inc., a Delaware corporation ("Holdings," and collectively with its subsidiaries and, unless the context requires otherwise, its and their respective predecessors, the "Company"), is a global specialty retailer of health and wellness products, which include: vitamins, minerals and herbal supplements, sports nutrition products, diet products and other wellness products. HULU LLC: Opposes Bid to Certify Class in Privacy Litigation ------------------------------------------------------------ Nick McCann, writing for Courthouse News Service, reports that Hulu asked a federal judge to deny a class certification over allegations it illegally discloses viewer data to Facebook and a business-analytics service. Joseph Garvey is the lead plaintiff in the February 2012 lawsuit claiming that Hulu "repurposed" its browser cache so marketing- analysis services could store users' private data. While U.S. Magistrate Judge Laurel Beeler gutted the case last June, she deferred ruling on the alleged violation of the federal Video Privacy Protection Act or VPPA, enacted in 1988 after a Washington, D.C., newspaper published the video-rental history of Supreme Court nominee Robert Bork. A summary judgment hearing is scheduled for Feb. 6, 2014. Hulu had said the class could not prove injury to establish standing, since that would require a recitation of watched videos and how third parties received this information. The VPPA permits disclosure to third parties as an "ordinary course of business," according to Hulu's brief filed in November by O'Melveny & Myers attorney Randall Edwards. In that brief, Hulu disputed the class's claims that it used the analytics service comScore and Facebook "like" buttons to store user data. In a new filing, Hulu's attorneys have opposed the plaintiffs' motion for class certification. Attorney Robert Schwartz argued that each class member's claim would depend on individual issues related to his or her use of Hulu, and that the court should rule on pending summary judgment motions before deciding on class certification. "These issues cannot be resolved with common evidence," Schwartz wrote. "To preview just some of the individualized evidence on these questions, a survey of hulu.com users shows that up to 60 percent engaged in one or more blocking and clearing practices that would have prevented any disclosure of even the anonymous user ID. And Hulu does not know whether or when any user took such steps." The attorney also noted that many Hulu users do not use their actual names. "In fact, there are 753 Hulu users named 'Fake Name,' 644 named 'Homer Simpson,' and over 18,000 named 'John Doe,'" Schwartz wrote. Class certification is not appropriate because of the varying circumstance in different Hulu users' claims, the attorney argued. "Plaintiffs' motion must fail. It applies the wrong certification standard, relies on an unsupported legal theory, and makes no attempt to demonstrate how common evidence could possibly be used to prove liability on a class-wide basis," Schwartz wrote. The Plaintiffs are represented by: David Christopher Parisi, Esq. Suzanne L. Havens Beckman, Esq. PARISI & HAVENS LLP 15233 Valleyheart Drive Sherman Oaks, CA 91403 Telephone: (818) 990-1299 Facsimile: (818) 501-7852 E-mail: dcparisi@parisihavens.com shavens@parisihavens.com - and - David A. Stampley, Esq. Grace E. Tersigni, Esq. KAMBERLAW, LLC 100 Wall Street, 23rd Floor New York, NY 10005 Telephone: (212) 920-3072 Facsimile: (212) 920-3081 E-mail: dstampley@kamberlaw.com gtersigni@kamberlaw.com - and - Scott A. Kamber, Esq. KAMBERLAW, LLC 11 Broadway, 22nd Floor New York, NY 10004 Telephone: (212) 920-3072 Facsimile: (212) 920-3081 E-mail: skamber@kamberlaw.com - and - Deborah Kravitz, Esq. KAMBERLAW LLP 141 North Street Healdsburg, CA 95448 Telephone: (202) 285-2560 E-mail: dkravitz@kamberlaw.com - and - Gretchen Arlene Carpenter, Esq. Brian Russell Strange, Esq. STRANGE & CARPENTER 12100 Wilshire Boulevard, Suite 1900 Los Angeles, CA 90025 Telephone: (310) 207-5055 Facsimile: (310) 826-3210 E-mail: gcarpenter@strangeandcarpenter.com lacounsel@earthlink.net - and - Joseph H. Malley, Esq. LAW OFFICE OF JOSEPH H. MALLEY, PC 1045 North Zang Boulevard Dallas, TX 75208 Telephone: (214) 943-6100 E-mail: malleylaw@gmail.com The Defendants are represented by: Randall W. Edwards, Esq. Katherine Robison, Esq. Matthew David Powers, Esq. O'MELVENY & MYERS LLP Two Embarcadero Center, 28th Floor San Francisco, CA 94111 Telephone: (415) 984-8700 Facsimile: (415) 984-8701 E-mail: REdwards@omm.com krobison@omm.com mpowers@omm.com - and - Robert Michael Schwartz, Esq. Brian J. Finkelstein, Esq. Steven Matthew Dunst, Esq. Victor Jih, Esq. O'MELVENY & MYERS LLP 1999 Ave of the Stars Suite 700 Los Angeles, CA 90067-6035 Telephone: (310) 246-6835 E-mail: rschwartz@omm.com brianfinkelstein@omm.com sdunst@omm.com vjih@omm.com The case is In Re Hulu Privacy Litigation, Case No. 3:11-cv-03764- LB, in the U.S. District Court for the Northern District of California (San Francisco). INSYS THERAPEUTICS: Pomerantz Law Firm Files Class Action in Ariz. ------------------------------------------------------------------ Pomerantz Grossman Hufford Dahlstrom & Gross LLP on Dec. 16 disclosed that it has filed a class action lawsuit against Insys Therapeutics, Inc. and certain of its officers. The class action, filed in United States District Court, District of Arizona, is on behalf of a class consisting of all persons or entities who purchased or otherwise acquired securities of Insys between May 1, 2013 and December 12, 2013 both dates inclusive. This class action seeks to recover damages against the Company and certain of its officers and directors as a result of alleged violations of the federal securities laws pursuant to Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder. If you are a shareholder who purchased Insys securities during the Class Period, you have until February 14, 2014 to ask the Court to appoint you as Lead Plaintiff for the class. A copy of the Complaint can be obtained at http://www.pomerantzlaw.com To discuss this action, contact Robert S. Willoughby at rswilloughby@pomlaw.com or 888-476-6529 (or 888-4-POMLAW), toll free, x237. Those who inquire by e-mail are encouraged to include their mailing address, telephone number, and number of shares purchased. Insys is a commercial-stage specialty pharmaceutical company that develops and commercializes innovative supportive care products, primarily intended to assist cancer patients cope with the symptoms of their disease and treatment or therapy. The Company's principal source of revenues is through sales of Subsys, a sublingual spray for managing cancer pain. The Complaint alleges that throughout the Class Period, Defendants made materially false and misleading statements regarding the Company's business and operations. Specifically, Defendants made false and/or misleading statements concerning, and/or failed to disclose, among other things that: (i) the Company engaged in illegal and/or unethical marketing of Subsys; (ii) the Company was exposed to potential fines and other disciplinary actions as a result of its Subsys marketing practices; and, (iii) as a result, the Company's financial statements were materially false and misleading at all relevant times. On December 12, 2013, after the market close, the company announced that, "it has received a subpoena from the Office of Inspector General of the Department of Health and Human Services ("HHS") in connection with an investigation of potential violations involving HHS programs. The subpoena requests documents regarding Subsys, including Insys' sales and marketing practices relating to this product." On this news, the company's shares fell $7.73 per share, to close at $37.55 per share, a one day drop of over 17%, on high volume. The Pomerantz Firm, with offices in New York, Chicago, Florida, and San Diego, -- http://www.pomerantzlaw.com-- concentrates its practice in the areas of corporate, securities, and antitrust class litigation. J2 GLOBAL: Makes It Impossible to Cancel eFax Service, Class Says ----------------------------------------------------------------- Anthony Jenkins, individually, and on behalf of others similarly situated v. j2 Global, Inc., Case No. 2:13-cv-09226-DSF-MRW (C.D. Cal., December 16, 2013) is based on j2 Global's cancellation practices relating to its eFax(R) facsimile transmission service. Despite the apparent ease -- as falsely advertised -- of cancelling eFax(R) accounts, j2 Global has engaged in practices that make it difficult, if not impossible, for many subscribers to cancel their accounts, Mr. Jenkins alleges. He contends that as a result of these practices, j2 Global charges improper and unauthorized fees. j2 Global is a Delaware corporation headquartered in Los Angeles, California. J2 Global is a NASDAQ listed company that operates in 49 countries and six continents. The Company's EFax(R) service permits a subscriber to send and receive faxes via e-mail, the customer's web app or eFax(R)'s mobile app, thereby, eliminating the necessity for fax machines and phone lines. The Plaintiff is represented by: Sandra W. Cuneo, Esq. CUNEO GILBERT & LADUCA, LLP 11620 Wilshire Boulevard, Suite 900 Los Angeles, CA 90025 Telephone: (310) 582-5939 Facsimile: (310) 582-5943 E-mail: scuneo@cuneolaw.com - and - Charles J. LaDuca, Esq. CUNEO GILBERT & LADUCA, LLP 8120 Woodmont Avenue, Suite 810 Bethesda, MD 20814 Telephone: (202) 789-3960 Facsimile: (202) 780-1813 E-mail: charles@cuneolaw.com - and - Erica C. Mirabella, Esq. MIRABELLA LAW 132 Boylston Street, 5th Floor Boston, MA 02116 Telephone: (617) 580-8270 E-mail: emirabella@gnemlaw.com - and - Michael A. McShane, Esq. Dana M. Isaac, Esq. AUDET AND PARTNERS LLP 221 Main Street Suite 1460 San Francisco, CA 94105 Telephone: (415) 568-2555 Facsimile: (415) 568-2556 E-mail: mmcshane@audetlaw.com disaac@audetlaw.com - and - Robert K. Shelquist, Esq. LOCKRIDGE GRINDAL NAUEN P.L.L.P. 100 Washington Ave., S., Suite 2200 Minneapolis, MN 55401-2179 Telephone: (612) 339-6900 Facsimile: (612) 339-0981 E-mail: rshelquist@locklaw.com - and - D. Michael Campbell, Esq. MICHAEL CAMPBELL, P.A. 1861 N Crystal Lake Dr. Lakeland, FL 33801 Telephone: (863) 292-9929 E-mail: dmcampbell@campbelllaw.com The Defendant is represented by: Kimberly Lorraine Buffington, Esq. PILLSBURY WINTHROP SHAW PITTMAN LLP 725 South Figueroa Street, Suite 2800 Los Angeles, CA 90017-5406 Telephone: (213) 488-7169 Facsimile: (213) 629-1033 E-mail: kbuffington@pillsburylaw.com KFORCE INC: Orange County Suit Removed to C.D. Calif. Court ----------------------------------------------------------- Kforce Inc., on August 30, 2013, removed the class action lawsuit filed in the Orange County Superior Court of the State of California to the U.S. District Court for the Central District of California, Case No. 8:13cv1356, according to the Company's Form 10-Q filed on October 30, 2013, with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2013. On June 18, 2013, Kforce, along with other staffing firms, was named as a defendant in a class action lawsuit filed in the Orange County Superior Court of the State of California. The Plaintiff alleges that a class of current and former Kforce employees working in California was denied compensation for the time they spent interviewing with current and potential clients of Kforce, over a period covering four years prior to the filing of the complaint. The plaintiff seeks recovery in an unspecified amount for this alleged unpaid compensation, the alleged failure of Kforce to provide them with accurate wage statements, the alleged improper use of debit cards as an employee payment mechanism in certain circumstances, alleged unfair competition, and statutory penalties, attorney's fees and other damages. On August 30, 2013, Kforce removed the matter to the U.S. District Court for the Central District of California, Case No. 8:13cv1356. At this stage of the litigation, it is not reasonable to estimate the outcome or a range of loss, should a loss occur. Accordingly, no amounts have been provided for in Kforce's Financial Statements. Kforce believes it has meritorious defenses to the allegations and intends to vigorously defend the matter. The Company states: "We are not aware of any new legal proceedings that are likely to have a material adverse impact on Kforce, or other material developments with respect to existing legal proceedings, that occurred during the nine months ended September 30, 2013." Kforce Inc. (Kforce) is a provider of professional and technical specialty staffing services and solutions. It operates in five segments: Technology (Tech), Finance and Accounting (FA), Clinical Research (KCR), Health Information Management (HIM) and Government Solutions (GS). Kforce organizes and manages its Tech and FA segments on a regional basis: Atlantic, North and West. Its Tech segment includes Kforce Global Solutions, Inc. (Global), a wholly owned subsidiary, which has two offices in the Philippines. Its KCR, HIM and GS segments are organized and managed by specialty. As of December 31, 2011, it operated 62 field offices, which are located throughout the United States, and an office in Manila, Philippines. In April 2012, it sold all of the issued and outstanding shares of capital stock of Kforce Clinical Research, Inc. KINDRED HEALTHCARE: Wins Final OK of $8.25-Mil. Class Settlement ---------------------------------------------------------------- Judge Jeffrey S. White of the United States District Court for the Northern District of California granted final approval of Kindred Healthcare, Inc., et al.'s settlement of a class action lawsuit commenced by Hazel Walsh, et al. The case arises from the Plaintiffs' allegations that the Defendants failed to comply with California statutory requirements for staffing at skilled nursing facilities and failed to disclose the understaffing. Based on those allegations, the Plaintiffs brought claims pursuant to California Health and Safety Code, California Business and Professions Code and California Civil Code. The Settlement Class consists of all persons, who resided in, or who are successors-in-interest and legal heirs of persons, who resided in, any of the Defendant Facilities, including Kindred Transitional Care and Rehabilitation-Bay View, formerly known as Bay View Nursing and Rehabilitation Center; and Kindred Transitional Care and Rehabilitation Canyonwood, formerly known as Canyonwood Nursing and Rehab Center, from November 23, 2006, through and including April 15, 2013, except as to Kindred Healthcare Center of Orange and Alta Vista Healthcare & Wellness Centre, for which the Class Period is November 23, 2006, through and including September 30, 2009. Pursuant to the Settlement, the Defendants agreed to pay up to $8.25 million, allocated according to a formula by which each Settlement Class member receives an amount calculated by multiplying the number of days that the class member resided in any Defendant Facility times the Subject Day Percentage (8 percent) times $20, the agreed-upon Subject Day Amount. The Plaintiffs are represented by: Christopher J. Healey, Esq. Aaron Thomas Winn, Esq. MCKENNA LONG ALDRIDGE LLP 600 W Broadway, Suite 2600 San Diego, CA 92101-3391 Telephone: (619) 236-1414 Facsimile: (619) 645-5328 E-mail: chealey@mckennalong.com awinn@mckennalong.com - and - Daniel M. Hutchinson, Esq. Lexi Joy Hazam, Esq. Robert Jay Nelson, Esq. LIEFF CABRASER HEIMANN & BERNSTEIN, LLP Embarcadero Center West 275 Battery Street, 29th Floor San Francisco, CA 94111-3339 Telephone: (415) 956-1000 Facsimile: (415) 956-1008 E-mail: dhutchinson@lchb.com lhazam@lchb.com rnelson@lchb.com - and - Kathryn Ann Stebner, Esq. Sarah Colby, Esq. STEBNER & ASSOCIATES 870 Market Street, Suite 1212 San Francisco, CA 94105 Telephone: (415) 362-9800 Facsimile: (415) 362-9801 E-mail: Kathryn@stebnerassociates.com sarah@stebnerassociates.com - and - Michael D. Thamer, Esq. LAW OFFICES OF MICHAEL D. THAMER 12444 South Highway 3 Post Office Box 1568 Callahan, CA 96014-1568 Telephone: (530) 467-5307 E-mail: michael@trinityinstitute.com - and - Robert Stephen Arns, Esq. THE ARNS LAW FIRM 515 Folsom Street, Third Floor San Francisco, CA 94105 Telephone: (415) 495-7800 Facsimile: (415) 495-7888 E-mail: ddl@arnslaw.com - and - William Timothy Needham, Esq. JANSSEN MALLOY NEEDHAM MORRISON REINHOLSTEN CROWLEY & GRIEGO 730 Fifth Street P. O. Drawer 1288 Eureka, CA 95501 Telephone: (707) 445-2071 Facsimile: (707) 445-8305 E-mail: tneedham@janssenlaw.com The Defendants are represented by: Andrew Hardenbrook Struve, Esq. Barry Scott Landsberg, Esq. Brad W. Seiling, Esq. Jessica J. Slusser, Esq. MANATT PHELPS & PHILLIPS 11355 West Olympic Boulevard Los Angeles, CA 90064 Telephone: (310) 312-4000 E-mail: astruve@manatt.com blandsberg@manatt.com bseiling@manatt.com Jslusser@manatt.com - and - Christian Edward Baker, Esq. MANATT, PHELPS & PHILLIPS, LLP One Embarcadero Center, 30th Floor San Francisco, CA 94111 Telephone: (415) 291-7400 Facsimile: (415) 291-7474 E-mail: cbaker@manatt.com - and - David Shapiro, Esq. 1563 Mass. Avenue Cambridge, MA 02138 Telephone: (617) 495-4618 Facsimile: (617) 495-1950 The case is Walsh, et al. v. Kindred Healthcare, Inc., et al., Case No. 3:11-cv-00050-JSW, in the U.S. District Court for the Northern District of California (San Francisco). MADISON COUNTY, IL: Tax Fraud Class Actions to Proceed as One Suit ------------------------------------------------------------------ Sanford J. Schmidt, writing for The Telegraph, reports that plaintiffs in three proposed class action lawsuits aimed at recovering money from fraudulent tax deed sales have agreed to proceed as one suit and are going forward, despite efforts by some of the defendants to delay the proceedings. In a related development, Chief Madison County Circuit Judge David Hylla assigned the case to a judge from out of Madison County. He is Circuit Judge Dennis Middendorff of the Fourth Circuit. Associate Judge Stephen Stobbs recused himself. Among the delays requested were from tax buyers who faced criminal charges in connection with the tax sales. They asked for delays based on the fact that they have been required to defend themselves in criminal cases. They are John Vassen of Belleville, Scott K. McClean, whose company is based in East St. Louis; and Barrett Rochman of Carbondale. They have pleaded guilty in federal court and will be sentenced in February. Former judge Don Weber is representing one of the plaintiffs in the three class action suits. He said he and attorneys in the other three cases recently discussed the proposal to consolidate the cases. Mr. Weber is of counsel for the firm Reinert, Weishaar and Associates of St. Louis. They represent the bonding companies that may be held liable for some of the damages. The cases have not been certified as class actions. Mr. Weber is taking the lead in the class action for that firm. One of the key elements required in class actions is that the interests of the parties would be better served than if they all filed separate legal actions. There were thousands of people whose tax debts were sold at the maximum 18 percent penalty as set by state statute. In a related action, Judge Middendorff has dismissed Madison County as a defendant in the class actions. The judge said the law requires that former Madison County Treasurer Fred Bathon would have been acting within the scope of his employment as treasurer for the plaintiffs to recover damages from the county. "This is certainly not conduct which the employee was employed to perform," the judge wrote in his order. Mr. Bathon, 58, pleaded guilty to a count of violating the Sherman Antitrust Act because he rigged bids at the sales so his top campaign contributors among tax deed buyers could receive the maximum 18 percent penalty. The scheme was spread out between 2005 and 2008. U.S. District Judge David Herndon sentenced Mr. Bathon to 30 months in prison and fined him $20,000. Mr. Bathon, however, will not have to pay restitution. U.S. Attorney Stephen Wigginton told the judge Dec. 6 that the government brought in experts to try to determine the amount of restitution to be paid to each delinquent taxpayer, but the task proved impossible. He said differences among the various payers proved impossible to determine. Some delinquent taxpayers may have negligently failed to pay the tax, and others, not. Some may have been forced to pay the maximum 18 percent in the absence of the scheme and others, not, so it would be impossible to ascertain the difference, he said. Attorneys for the class action plaintiffs will seek to determine the amount of damages, which would be similar to the restitution, had the plea agreement provided for it. MARRIOTT INT'L: Summary Judgment Bid in Md. Employee Suit Tossed ---------------------------------------------------------------- A U.S. federal court in Maryland on August 9, 2013, denied Marriott International, Inc.'s motion for summary judgment on the issue of statute of limitations and deferred its ruling on class certification, according to the Company's Form 10-Q filed on October 31, 2013, with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2013. On January 19, 2010, several former Marriott employees (the "plaintiffs") filed a putative class action complaint against Marriott and the company's Stock Plan (the "defendants"), alleging that certain equity awards of deferred bonus stock granted to the plaintiffs and other current and former employees for fiscal years 1963 through 1989 are subject to vesting requirements under the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), that are in certain circumstances more rapid than those set forth in the awards. The plaintiffs seek damages, class attorneys' fees and interest, with no amounts specified. The action is proceeding in the United States District Court for the District of Maryland (Greenbelt Division) and Dennis Walter Bond Sr. and Michael P. Steigman are the current named plaintiffs. The parties completed limited discovery concerning the issues of statute of limitations and class certification. Marriott opposed Plaintiffs' motion for class certification in October 2012, and filed a motion for summary judgment on the issue of statute of limitations in December 2012. A hearing on both issues was held on June 7, 2013, after which Marriott submitted a post-hearing supplemental brief and plaintiffs responded. On August 9, 2013, the court denied Marriott's motion for summary judgment on the issue of statute of limitations and deferred its ruling on class certification. Marriott moved to amend the court's judgment on its motion for summary judgment in order to certify an interlocutory appeal, which was denied. Marriott and the Stock Plan have denied all liability, and while Marriott intends to vigorously defend against the claims being made by the plaintiffs, Marriott said it can give no assurance about the outcome of this lawsuit. "We currently cannot estimate the range of any possible loss to the Company because an amount of damages is not claimed, there is uncertainty as to whether a class will be certified and if so as to the size of the class, and the possibility of our prevailing on our statute of limitations defense on appeal may significantly limit any claims for damages," Marriott said. Marriott International, Inc. is a diversified hospitality company. It is a lodging company with more than 3,700 properties in 73 countries and territories. It operates and franchises hotels, including Marriott, The Ritz-Carlton, JW Marriott, Bulgari, EDITION, Renaissance, Autograph Collection, AC Hotels by Marriott, Courtyard, Fairfield Inn & Suites, SpringHill Suites, Residence Inn, TownePlace Suites, ExecuStay, and Marriott Executive Apartments brand names. It operates in four segments: North American Full-Service Lodging, which includes the Marriott Hotels & Resorts; North American Limited-Service Lodging, which includes the Courtyard; International Lodging, which includes the Marriott Hotels & Resorts, and Luxury Lodging, which includes The Ritz- Carlton. In September 2012, its JW Marriott hotel brand opened JW Marriott Essex House New York. In October 2012, Gaylord Entertainment Company sold the Gaylord Hotels brand and the rights to manage its four hotels to the Company. MB FINANCIAL: Amended Complaint Filed in Suit Over Taylor Merger ---------------------------------------------------------------- A consolidated amended class action complaint was filed against MB Financial, Inc., on October 24, 2013, alleging, among other things, that MB Financial aided and abetted the Taylor Capital directors' breaches of fiduciary duties, according to MB Financial's Form 10-Q filed on October 31, 2013, with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2013. On July 26, 2013, a class action complaint, captioned James Sullivan v. Taylor Capital Group, Inc., et al., was filed under Case No. 2013-CH-17751 in the Circuit Court of Cook County, Illinois, against Taylor Capital, its directors and MB Financial challenging the pending MB Financial/Taylor Capital merger. On August 8, 2013, a second class action complaint, captioned Dennis Panozzo v Taylor Capital Group, Inc., et. al., was filed under Case No. 2013-CH-18546 in the Circuit Court of Cook County, Illinois, against these same defendants. Subsequently, the two cases were consolidated pursuant to court order under the first- filed Sullivan case number. A consolidated amended complaint was filed on October 24, 2013. The lawsuits allege, among other things, that the Taylor Capital directors breached their fiduciary duties to Taylor Capital and its stockholders by agreeing to the proposed merger at an unfair price pursuant to a flawed sales process, by agreeing to terms with MB Financial that discouraged other bidders and by not providing material information necessary for Taylor Capital stockholders to make an informed vote on the transaction. Plaintiffs further allege that certain Taylor Capital directors and officers were not independent or disinterested with respect to the merger. Plaintiffs also allege that MB Financial aided and abetted the Taylor Capital directors' breaches of fiduciary duties. The complaints seek, among other things, an order enjoining the defendants from consummating the merger, as well as attorneys' and experts' fees and certain other damages. MB Financial believes that the actions against it are without merit and intends to vigorously defend itself against such actions. MB Financial, Inc., is a financial holding company. The Company's primary market is the Chicago metropolitan area, in which MB Financial operates approximately 87 banking offices through its bank subsidiary, MB Financial Bank, N.A. (MB Financial Bank). Through MB Financial Bank, the Company offers a range of financial services primarily to small and middle market businesses and individuals in the markets that it serves. Its primary lines of business include commercial banking, retail banking and wealth management. As of December 31, 2011, the Company had total assets of $9.8 billion, deposits of $7.6 billion, stockholders' equity of $1.4 billion, and $3.6 billion of client assets under administration in its Wealth Management Group. MERCHANT SERVICES: To Pay $923,000 to Credit Card Suit Attorneys ---------------------------------------------------------------- Angela Watkins at Courthouse News Service reports that Merchant Services, Inc. will pay $923,000 in attorney fees incurred by small businesses that claim the company inflated fees for card terminals without notice under a settlement agreement approved by a federal court. The settlement stems from a class action that accused Merchant Services, a card payment processing company, of adding new terms and conditions to payment processing services without notice and forcing small business to pay inflated fees for card terminals. U.S. District Judge Claudia Wilken approved the settlement last week, which also awards a $7,500 incentive to each of the named plaintiffs. According to the Wilken, plaintiffs "remained involved for many years, and incurred risks of liability for Merchant Services' costs for the four year litigation. Further, the named plaintiffs assumed responsibility for searching both personal and business records, and provided several years of banking records and other sensitive, private financial documents for inspection and questioning. They each responded to dozens of interrogatories and more than a hundred document requests. They participated in mediation, appeared for lengthy depositions, and submitted multiple declarations. They had little to personally gain from the litigation." The Plaintiffs are represented by: Adam Gutride, Esq. Kristen Gelinas Simplicio, Esq. Seth Adam Safier, Esq. Todd Michael Kennedy, Esq. GUTRIDE SAFIER LLP 835 Douglass Street San Francisco, CA 94114 Telephone: (415) 271-6469 Facsimile: (415) 449-6469 E-mail: adam@gutridesafier.com Kristen@gutridesafier.com seth@gutridesafier.com todd@gutridesafier.com The Defendants are represented by: Cary Donahue Sullivan, Esq. Thomas Reed Malcolm, Esq. Travis Biffar, Esq. JONES DAY 3161 Michelson Drive, Suite 800 Irvine, CA 92612 Telephone: (949) 553-7513 Facsimile: (949) 553-7539 E-mail: carysullivan@jonesday.com tbiffar@jonesday.com - and - Brian D. Hershman, Esq. JONES DAY 555 South Flower Street, 15th Floor Los Angeles, CA 90071 Telephone: (213) 243-2445 Facsimile: (213) 243-2539 E-mail: bhershman@jonesday.com - and - Kevin Hugh Logan, Esq. JONES DAY 51 Louisiana Avenue NW Washington, DC 20001 Telephone: (202) 879-3967 Facsimile: (202) 626-1700 E-mail: klogan@jonesday.com - and - James Cai, Esq. SCHEIN & CAI, LLP 111 West St. John Street, Suite 1250 San Jose, CA 95113 Telephone: (408) 436-0789 Facsimile: (408) 436-0758 E-mail: jcai@sacattorneys.com - and - Seth Wesley Wiener, Esq. LAW OFFICES OF SETH W. WIENER 609 Karina Court San Ramon, CA 94582 Telephone: (925) 487-5607 E-mail: sethwiener@yahoo.com - and - Rod Divelbiss, Esq. John Vincent Erickson, Esq. JRA LAW PARTNES LLP 235 Pine Street, Suite 1300 San Francisco, CA 94104 Telephone: (415) 788-4646 Facsimile: (415) 788-6929 E-mail: rdivelbiss@collette.com jerickson@collette.com - and - Abraham Y. Skoff, Esq. Jennifer Nigro, Esq. Robert Lillienstein, Esq. Scott E. Silberfein, Esq. MOSES & SINGER LLP The Chrysler Building 405 Lexington Avenue New York, NY 10174 Telephone: (212) 554-7800 E-mail: askoff@mosessinger.com jnigro@mosessinger.com rlillienstein@mosessinger.com ssilberfein@mosessinger.com - and - John Merrill Heaphy, III, Esq. Jeffrey James Halldin, Esq. HARRISON AND HELD, LLP 333 W. Wacker, Ste 1700 Chicago, IL 60606 Telephone: (312) 753-6160 E-mail: jheaphy@harrisonheld.com jhalldin@harrisonheld.com - and - Joan Eve Trimble, Esq. Lee Alan Sherman, Esq. CALLAHAN, THOMPSON, SHERMAN & CAUDILL LLP 2601 Main Street, Suite 800 Irvine, CA 92614 Telephone: (949) 261-2872 Facsimile: (949) 261-6060 E-mail: jtrimble@ctsclaw.com lsherman@ctsclaw.com - and - K. Todd Phillips, Esq. Seema Tendolkar, Esq. WICK PHILLIPS GOULD & MARTIN, LLP 2100 Ross Avenue, Suite 950 Dallas, TX 75201 Telephone: (214) 692-6200 Facsimile: (214) 692-6255 E-mail: tphillips@wickphillips.com seema.tendolkar@wickphillips.com - and - Michael Thomas Tinan Carlson, Esq. GEARY SHEA O'DONNELL & GRATTAN, PC 37 Old Courthouse Square, 4th Floor P.O. Box 429 Santa Rosa, CA 95402-0429 Telephone: (707) 545-1660 Facsimile: (707) 545-1876 E-mail: mcarlson@gsoglaw.com - and - James R. McGuire, Esq. MORRISON & FOERSTER LLP 425 Market Street San Francisco, CA 94105-2482 Telephone: (415) 268-7000 Facsimile: (415) 268-7522 E-mail: jmcguire@mofo.com - and - Stephen M. Colangelo, Esq. MORRISON & FOERSTER LLP 2000 Pennsylvania Avenue, N.W., Suite 6000 Washington, DC 20006 Telephone: (202) 887-1500 E-mail: SColangelo@mofo.com - and - Hayes F. Michel, Esq. KRAKOWSKY MICHEL LLP 1925 Century Park East, Suite 2050 Los Angeles, CA 90067 Telephone: (310) 277-7342 Facsimile: (310) 277-0298 E-mail: hmichel@krakowskymichel.com - and - Robert N. Webner, Esq. VORYS SATER SEYMOUR & PEASE LLP 52 East Gay Street Columbus, OH 43215 Telephone: (614) 464-8243 Facsimile: (614) 719-5083 E-mail: rnwebner@vorys.com - and - Matthew Keenan Wegner, Esq. Matthew Allen Berliner, Esq. BROWN WEGNER & BERLINER, LLP 2603 Main Street, Suite 1050 Irvine, CA 92614 Telephone: (949) 705-0080 Facsimile: (949) 749-4099 E-mail: mwegner@bwb-lawyers.com mberliner@bwb-lawyers.com - and - Janet Suejean Park, Esq. MATRIX SERVICE COMPANY 500 W Collins Avenue Orange, CA 92867 Telephone: (714) 289-6638 E-mail: jpark@matrixservicecompany.com The lawsuit is Just Film, Inc., et al. v. Merchant Services, Inc., et al., Case No. 4:10-cv-01993-CW, in the U.S. District Court for the Northern District of California (Oakland). MOBILE MESSENGERS: Class Cert. Bid in "Fields" Suit Denied ---------------------------------------------------------- District Judge William Alsup denied approval of a motion for class certification and appointment of class counsel in the case captioned EDWARD FIELDS, et al. Plaintiffs, v. MOBILE MESSENGERS AMERICA, INC., et al. Defendants, NO. C 12-05160 WHA, (N.D. Cal.) In this putative class action involving an alleged text-message scam, plaintiffs moved for certification of two classes and one subclass. According to the Court, the Plaintiffs have failed to prove predominance under Rule 23(b) of the Federal Rules of Civil Procedure and their motion to certify a nationwide text-receipt class is denied. The Plaintiffs' motion to certify a nationwide "enrollment class" alleging California state law claims is also denied. "Because plaintiffs have not met their burden to show numerosity under Rule 23(a)(1) as to their proposed California subclass, plaintiffs' motion to certify a California subclass is denied," added Judge Alsup. Although a class has not been certified, the action will proceed as to plaintiffs' individual claims in accord with the deadlines previously set in the case management order, ruled the Court. A copy of the District Court's Nov. 18, 2013 Order is available at http://is.gd/84HQ6wfrom Leagle.com. MOODY'S CORP: Plaintiffs Appeal Summary Judgment Order ------------------------------------------------------ Plaintiffs in securities lawsuits have filed a notice of appeal from the summary judgment entered in Moody's Corporation's favor on August 26, 2013, and from the March 2011 decision denying class certification, according to the Company's Form 10-Q filed on October 31, 2013, with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2013. Two purported class action complaints have been filed by purported purchasers of the Company's securities against the Company and certain of its senior officers, asserting claims under the federal securities laws. The first was filed by Raphael Nach in the U.S. District Court for the Northern District of Illinois on July 19, 2007. The second was filed by Teamsters Local 282 Pension Trust Fund in the United States District Court for the Southern District of New York on September 26, 2007. Both actions have been consolidated into a single proceeding entitled In re Moody's Corporation Securities Litigation in the U.S. District Court for the Southern District of New York. On June 27, 2008, a consolidated amended complaint was filed, purportedly on behalf of all purchasers of the Company's securities during the period February 3, 2006 through October 24, 2007. Plaintiffs allege that the defendants issued false and/or misleading statements concerning the Company's business conduct, business prospects, business conditions and financial results relating primarily to MIS's ratings of structured finance products including RMBS, CDO and constant-proportion debt obligations. The plaintiffs seek an unspecified amount of compensatory damages and their reasonable costs and expenses incurred in connection with the case. The Company moved for dismissal of the consolidated amended complaint in September 2008. On February 23, 2009, the court issued an opinion dismissing certain claims and sustaining others. On January 22, 2010, plaintiffs moved to certify a class of individuals who purchased Moody's Corporation common stock between February 3, 2006 and October 24, 2007, which the Company opposed. On March 31, 2011, the court issued an opinion denying plaintiffs' motion to certify the proposed class. On April 14, 2011, plaintiffs filed a petition in the United States Court of Appeals for the Second Circuit seeking discretionary permission to appeal the decision. The Company filed its response to the petition on April 25, 2011. On July 20, 2011, the Second Circuit issued an order denying plaintiffs' petition for leave to appeal. On September 14, 2012, the Company filed a motion for summary judgment, which was fully briefed on December 21, 2012. On August 23, 2013, the court issued an opinion granting defendants' motion for summary judgment. Judgment was entered in Moody's favor on August 26, 2013. On September 23, 2013, plaintiffs filed a notice of appeal from the judgment and from the March 2011 decision denying class certification. Moody's Corporation (Moody's) is a provider of credit ratings; credit and economic related research, data and analytical tools; software solutions and related risk management services; quantitative credit risk measures, credit portfolio management solutions, training and financial credentialing and certification services, and outsourced research and analytical services to institutional customers. The Company operates in two segments: Moody's Investors Service (MIS) and Moody's Analytics (MA). The MIS segment consists of all credit rating activity. All of Moody's other non-rating commercial activities are included within the MA segment. As of December 31, 2012, MIS had ratings relationships with approximately 10,000 corporate issuers and approximately 22,000 public finance issuers. During the year ended December 31, 2012, the Company had rated and monitored ratings on approximately 82,000 structured finance obligations (representing approximately 13,000 transactions). NCL CORP: Appeals Court Affirms Denial of Class Certification ------------------------------------------------------------- The United States Court of Appeals for the Eleventh Circuit in October 2013 affirmed the Court's rulings as to the denial of class certification on a class action complaint alleging inappropriate deductions of their wages against a subsidiary of NCL Corporation Ltd., according to the Company's Form 10-Q filed on October 31, 2013, with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2013. In July 2009, a class action complaint was filed against NCL (Bahamas) Ltd. in the United States District Court, Southern District of Florida, on behalf of a purported class of crew members alleging inappropriate deductions of their wages pursuant to the Seaman's Wage Act and wrongful termination resulting in a loss of retirement benefits. In December 2010, the Court denied the plaintiffs' Motion for Class Certification. In February 2011, the plaintiffs filed a Motion for Reconsideration as to the Court's Order on Class Certification which was denied. The Court tried six individual plaintiffs' claims, and in September 2012 awarded wages aggregating approximately $100,000 to such plaintiffs. In October 2013, the United States Court of Appeals for the Eleventh Circuit affirmed the Court's rulings as to the denial of class certification and the trial verdict. The Company intends to continue to vigorously defend this action and are not able at this time to estimate the impact of these proceedings. In May 2011, a class action complaint was filed against NCL (Bahamas) Ltd. in the United States District Court, Southern District of Florida, on behalf of a purported class of crew members alleging inappropriate deductions of their wages pursuant to the Seaman's Wage Act and breach of contract. In July 2012, this action was stayed by the Court pending the outcome of the litigation commenced with the class action complaint filed in July 2009. "We are vigorously defending this action and are not able at this time to estimate the impact of these proceedings," the Company said. NCL Corporation Ltd., is a global cruise line operator, offering cruise experiences for travelers with a wide variety of itineraries in North America (including Alaska and Hawaii), the Mediterranean, the Baltic, Central America, Bermuda and the Caribbean. NEW ENGLAND COMPOUNDING: $100+ Mil. Creditors Fund to Be Set Up --------------------------------------------------------------- Brown Rudnick LLP on Dec. 23 disclosed that owners of the bankrupt New England Compounding Pharmacy ("NECC") and NECC's insurers have reached agreements in principle concerning settlements with Bankruptcy Trustee Paul D. Moore, the Official Unsecured Creditor's Committee (the "Committee") and the Plaintiffs Steering Committee (the "PSC") in multidistrict litigation involving NECC pending in Federal Court in Boston (the "MDL") to contribute an amount estimated to exceed $100 million to a compensation fund to be distributed to NECC creditors, including victims who received injections of tainted steroids traced to NECC. The settlement agreements are subject to final documentation and Bankruptcy Court approval. The Center for Disease Control estimates that well over 700 people nation-wide have been diagnosed with fungal meningitis or other serious fungal infections. At least 64 deaths have been confirmed. Paul Moore, the Trustee of bankrupt NECC, commented, "We are pleased that a significant amount of funds will become available for distribution to victims and their families as compensation for the deaths, injuries and suffering they endured as a result of this tragic meningitis outbreak." David Molton and William Baldiga, partners at Brown Rudnick and counsel to the Committee, added that these settlements "are a material step in expediting compensation to victims and should bring momentum to the Trustee's and Committee's ongoing and vigorous efforts to add to this victims' fund with settlements from others, including medical care providers and pain clinics that administered the tainted steroids to their patients." "This preliminary settlement marks a critical milestone in our efforts to maximize recovery for the victims and their families," added Anne Andrews and Harry Roth, co-chairs of the Committee. "We are enormously pleased with what the Trustee and our Committee have accomplished after prolonged negotiations." Thomas Sobol, lead counsel for the PSC and the PSC's representative with respect to the negotiations, stated that the PSC is also supportive of the preliminary settlements. NECC's owners commented that "while they deny any liability or wrongdoing, nonetheless they strongly desire to play a major role in establishing a fund for people who died or suffered as a result of this tragic outbreak." The victim compensation fund will be funded by cash contributions by the owners of NECC as well as from proceeds from, among other things, insurance, tax refunds and the sale of a related business. Pursuant to the bankruptcy process, Judge Henry J. Boroff of the U.S. Bankruptcy Court of the Eastern District of Massachusetts will be asked to confirm a plan containing the terms of the settlement agreements creating and funding the victim's compensation fund. As a reminder to all victims and creditors, the Bankruptcy Court established Wednesday, January 15, 2014, at 4:00 p.m. EST as the deadline for submitting their proofs of claim in the NECC bankruptcy proceeding. This Bar Date Order establishes procedures for filing and submitting claims for injuries suffered due to NECC's contaminated steroid injections. The Trustee and the Committee stress that it is extremely important that anyone who believes he or she has a claim against NECC or involving an NECC product timely file a proof of claim. Failing to do so may have an impact on a person's ability to obtain a distribution from the compensation fund established to compensate NECC victims or creditors. Information regarding the filing date deadline and the proof of claim process can be found at http://www.donlinrecano.com/cases/proofofclaim/necp Hagens Berman's Announcement Hagens Berman Sobol Shapiro, LLP disclosed that the Court- appointed Plaintiffs' Steering Committee (PSC), charged with speaking for hundreds of victims of tainted steroids produced by the New England Compounding Pharmacy, Inc. (NECC), on Dec. 23 announced a preliminary settlement with the owners, operators and insurers of the bankrupt NECC. A conditional agreement has been reached between bankruptcy trustee Paul D. Moore, the PSC and the Unsecured Creditors Committee under which the Cadden and Conigliaro families, the insurers of NECC and related company Ameridose, have promised to pay to a compensation fund an amount that may exceed $100 million. This fund will allow victims who received injections of tainted steroids made by NECC to seek a measure of justice against those wrongdoers. The agreements are not final, require due diligence on the part of the PSC to ensure the rights to victims are protected under these agreements, and will be conditional upon approval by creditors and a federal court for fairness and adequacy. Thomas M. Sobol, lead counsel for the PSC in the national litigation pending before a federal court in Boston, said, "The PSC has worked hard over the last several months to evaluate the liability of everyone involved in this tragedy and the tentative agreements are a big step forward in getting justice for victims. However, we must all be mindful that the agreements still require much work in order to protect the rights of victims. We also recognize that any amount of money would be grossly inadequate to compensate the families of those persons killed and others grievously injured by the callous conduct of those in charge of NECC." Mr. Sobol said, "This is but one chapter in this saga; litigation will continue against medical clinics, doctors, hospitals and other companies who were hired by NECC that bear responsibility to those who were badly injured or who died horrible and painful deaths as a result of having the injection of the tainted product into their bodies. This case is not over until all the wrongdoers have been brought to justice." "The proposed settlement does not resolve families' claims against the corporate-owned clinics that sold and injected these contaminated medications, such as St. Thomas Outpatient Neurosurgery Clinic in Nashville, Tenn., and other related St. Thomas companies. Numerous St. Thomas patients died or suffered serious illnesses as a result of receiving contaminated medications sold and administered at St. Thomas' Nashville facility," said PSC Member Gerard Stranch. "These corporate-owned companies chose to put profits over patient safety, as detailed in the hundreds of lawsuits filed against these companies, including St. Thomas, by families whose loved ones died or suffered serious injuries," said PSC Member Mark Chalos, who also represents a number of affected families. "Any corporation that endangers our families by breaking patient safety rules should be held accountable for their conduct -- no matter how rich or powerful those corporations are," said Mr. Chalos. There is no deadline set for when details of the proposal will be made public. The next court hearing in connection with this case is scheduled for January 10, 2014, at which point further due diligence will have been undertaken and additional details can likely be released. Full and complete information will be released to the public in due course and all victims who file a proof of claim in the Bankruptcy Court will have the opportunity to support or oppose the settlement. All victims and their counsel are reminded that the Bankruptcy Court has established a deadline of January 15th, 2014 at 4:00 p.m. EST to submit a claim in the NECC bankruptcy proceeding. Further information regarding that can be found at http://www.donlinrecano.com/cases/proofofclaim/necp OCALA, FL: May Face Class Action Over Fire Service Fees ------------------------------------------------------- Susan Latham Carr, writing for Ocala.com, reports that the city of Ocala has been given notice of a pending class-action lawsuit against it regarding fire service fees. "There's a possibility we could be involved in a class-action suit on fire fees," City Manager Matthew Brower said. "We have gotten notice that it's a possibility." He said that, to his knowledge, the suit had not been filed as of Dec. 16. The city collects about $7.5 million in fire service fees each year. "In a period when we are still trying to dig out from the Great Recession it could have a big impact on us budgetarily," Mr. Brower said, should the fees be found illegal. He said he could not remember the name of the law firm that would be filing the suit. Mr. Brower said he does not know what such a suit could cost the city. "We don't know until a formal suit is filed and find out what they are going to ask us," Mr. Brower said. Mr. Brower said other Florida cities do charge fire fees. In 2007, Burton & Associates prepared a fire service fee study for the city of Ocala. In that report, the law firm Lewis, Longman & Walker P.A. provided a legal opinion that the fire service fee complies with Florida statutes provided they are spent on fire service infrastructure projects and that administrative charges to collect the fees are restricted to actual costs. "They issued an opinion that it was legal," Mr. Brower said. Mr. Brower said it also was City Attorney Patrick Gilligan's opinion that the fees were legal, but the fees have never been challenged in court. He said state statute dictates what kinds of taxes and fees cities can levy, so opponents would be questioning whether the fee is legal under the state's laws. Asked if the city would have to refund fees, Mr. Brower said, "If we lost the case, the judge would have to determine what the implications are, but that's too far down the road for me to have any meaningful conclusion." He referred questions to Mr. Gilligan, who was unavailable to answer questions on Dec. 16. "We have not had any public meetings on it," Mr. Brower said. City Council President John McLeod said he spoke to Mr. Gilligan regarding the proposed suit but also did not remember the name of the law firm involved. He said Mr. Gilligan was expected to meet with the other council members to advise them as well. "I don't want to say anything yet," Mr. McLeod said. PHENIX TRANSPORTATION: Cheated Long-Haul Drivers of OT, Suit Says ----------------------------------------------------------------- Tiffany Brown and Robert Collins, on behalf of themselves and those similarly situated v. Phenix Transportation West, Inc., Rickey Wilkerson, Richard Wilkinson and Daphne Wilkinson, Case No. 3:13-cv-00781-TSL-JMR (S.D. Miss., December 16, 2013) seeks to redress alleged violations by the Defendants of the Fair Labor Standards Act. The Plaintiffs allege that the Defendants intentionally failed to compensate the Plaintiffs and the proposed class for wages earned while in the employ of the Defendants. Phenix Transportation West, Inc., is headquartered in Forest, Mississippi. The Company employed the Plaintiffs as over-the-road commercial truck drivers. The Individual Defendants are owners, directors or officers of the Company. The Plaintiffs are represented by: Christopher William Espy, Esq. CHRISTOPHER W. ESPY, ATTORNEY AT LAW, PLLC P. O. Box 13722 Jackson, MS 39236-3722 Telephone: (601) 812-5300 Facsimile: (601) 500-5719 E-mail: chris.espy@espylawpllc.com PIEDMONT OFFICE: Had $1.3-Mil Insurance Recoveries as of Sept. 30 ----------------------------------------------------------------- During the nine months ended September 30, 2013, Piedmont Office Realty Trust, Inc., recognized approximately $1.3 million in insurance recoveries related to settlement agreements of two class action lawsuits, according to the Company's Form 10-Q filed on October 31, 2013, with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2013. According to the Company, "During the nine months ended September 30, 2013, we recognized approximately $1.3 million in insurance recoveries associated with the $7.5 million of litigation settlement expense we recorded in the prior period related to settlement agreements of two class action lawsuits. We expect to receive additional insurance recoveries related to the settlements in future periods." Piedmont Office Realty Trust, Inc. (Piedmont) is a real estate investment trust (REIT). Piedmont is engages in the acquisition and ownership of commercial real estate properties throughout the United States, including properties that are under construction, newly constructed, or have operating histories. Company conducts business primarily through Piedmont Operating Partnership, L.P. (Piedmont OP), a limited partnership, as well as performing the management of its buildings through two wholly owned subsidiaries, Piedmont Government Services, LLC and Piedmont Office Management, LLC. Piedmont is the sole general partner of Piedmont OP. Piedmont OP owns properties directly, through wholly owned subsidiaries and through both consolidated and unconsolidated joint ventures. During the fiscal year ended December 31, 2012, the Company disposed of seven properties, which allowed the Company to exit two geographical markets as well as dispose of its last two industrial assets. PIONEER NATURAL: Court Approved Settlement of Claims ---------------------------------------------------- Pioneer Natural Resources Company stated in its Form 8-K dated October 25, 2013, filed with the U.S. Securities and Exchange Commission on October 31, that the Dallas County, Texas District Court has entered a final order and judgment approving the settlement of claims and allegations made in lawsuits, which relate to the transactions contemplated by the Merger Agreement. On October 25, 2013, Pioneer Natural Resources Company, a Delaware corporation ("Pioneer"), entered into Amendment No. 1 (the "Amendment") to the Agreement and Plan of Merger (the "Merger Agreement") dated as of August 9, 2013, along with the other parties thereto, being Pioneer Natural Resources USA, Inc., a Delaware corporation and wholly-owned subsidiary of Pioneer ("Pioneer USA"), PNR Acquisition Company, LLC, a Delaware limited liability company and wholly-owned subsidiary of Pioneer ("MergerCo"), Pioneer Southwest Energy Partners L.P., a Delaware limited partnership ("Pioneer Southwest"), and Pioneer Natural Resources GP LLC, a Delaware limited liability company, a wholly- owned subsidiary of Pioneer USA and the general partner of Pioneer Southwest ("Pioneer Southwest GP"). The Amendment was entered into to provide for contractual appraisal rights in favor of unitholders of Pioneer Southwest pursuant to the terms of a memorandum of understanding (as defined below) entered into on September 26, 2013 to settle certain claims and allegations made in certain lawsuits that were brought against the parties to the Merger Agreement and the members of the Pioneer Southwest GP board of directors to challenge the Merger (as defined below). Pursuant to the Merger Agreement, as amended by the Amendment, MergerCo will merge with and into Pioneer Southwest at the effective time of the merger (the "effective time"), with Pioneer Southwest surviving the merger (the "Merger"), such that following the Merger, Pioneer Southwest GP will remain a wholly- owned subsidiary of Pioneer USA and the sole general partner of Pioneer Southwest, and Pioneer USA will be the sole limited partner of Pioneer Southwest; except for the common units representing limited partner interests in Pioneer Southwest ("common units") owned by Pioneer USA, all of the common units outstanding as of the effective time of the Merger will be canceled and, except for the dissenting units (as defined below), converted into the right to receive 0.2325 of a share of common stock, par value $0.01 per share, of Pioneer per common unit. Pursuant to the terms and conditions of the Amendment, common units that are owned by a unitholder (a) other than Pioneer Southwest or its subsidiaries or Pioneer or its subsidiaries, (b) who does not vote at the special meeting of Pioneer Southwest in favor of the proposal to approve the Merger Agreement and the transactions contemplated thereby, including the Merger, and (c) who is entitled to demand and properly demands appraisal of such common units (the "dissenting units") pursuant to, and who complies in all respects with, the provisions of the Amendment regarding appraisal rights (the "dissenting unitholders") will not be converted into the right to receive the merger consideration provided for in the Merger Agreement, but instead such dissenting unitholder will be entitled to payment of the fair value of such dissenting units pursuant to and in accordance with the provisions of the Amendment (and at the effective time, such dissenting units will no longer be outstanding and will automatically be canceled and will cease to exist, and such dissenting unitholder will cease to have any rights with respect thereto, except the right to receive the fair value of such dissenting units pursuant to and in accordance with the provisions of the Amendment), unless and until such dissenting unitholder shall have failed to perfect or shall have effectively withdrawn or lost the appraisal rights. If such dissenting unitholder fails to perfect or effectively withdraws or loses the appraisal rights, then, as of the occurrence of such event or the effective time, whichever occurs later, each of such dissenting unitholder's dissenting units will cease to be a dissenting unit and will be converted into the right to receive, as of such date, 0.2325 of a share of Pioneer common stock per common unit. The appraisal rights will, to the fullest extent provided by law, be identical, except as described in the bullets below (which corresponding clauses in the Amendment supersede and replace any contradictory provisions in Section 262 of the Delaware General Corporation Law), to the rights that a stockholder of a Delaware corporation would have under Section 262 of the Delaware General Corporation Law if Pioneer Southwest were a corporation and the owners of common units were stockholders of such corporation who are entitled to appraisal rights under Section 262 of the Delaware General Corporation Law. Only unitholders who beneficially own (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934) common units on the record date for the special meeting of Pioneer Southwest (currently October 30, 2013) and who continuously beneficially own such common units through the effective time shall be entitled to appraisal rights. * Interest on any cash payments payable in respect of appraisal rights will accrue from and including the effective time through and excluding the date of such payment calculated at a per annum rate, using a 365-day year, equal to the 52-week treasury bill rate in effect at the effective time. * The Delaware Chancery Court will not conduct the appraisal proceeding until after final approval of the settlement. * Any record or beneficial owner of common units during the period beginning on May 6, 2013, through and including the effective time (a "class member"), who elects to opt out of the class formed for settlement purposes pursuant to the memorandum of understanding will not be entitled to appraisal rights. * Pioneer will have the right to terminate the appraisal rights under the Amendment, and each dissenting unitholder will automatically lose appraisal rights upon such termination, if the memorandum of understanding and the settlement contemplated thereby are terminated pursuant to the provisions of the memorandum of understanding, whether or not the termination of the memorandum of understanding and the settlement contemplated thereby occurs before or after the effective time. The memorandum of understanding and the settlement contemplated thereby will terminate upon any of the following events: * the parties do not satisfactorily complete the confirmatory discovery contemplated by the memorandum of understanding; * the plaintiffs notify the defendants within five days of completion of confirmatory discovery that they no longer believe that the settlement is fair, reasonable, and adequate; * final approval of the settlement is not obtained for any reason; * the Merger is not consummated for any reason; * the Dallas County, Texas District Court declines to conditionally certify a class pursuant to the terms set forth in the stipulation of settlement; * the defendants elect to terminate the settlement if class members owning more than 1,274,437 common units during the period beginning on May 6, 2013, through and including the effective date elect to opt-out of the class certified for settlement purposes; * Pioneer elects, within 60 days after consummation of the Merger, to terminate the settlement if owners of more than 2,500,000 common units demand appraisal; or * any of the following conditions are not satisfied or otherwise waived prior to final approval of the settlement: * certification of the class for settlement purposes; * approval by the Dallas County, Texas District Court of a complete release of certain persons as contemplated by the memorandum of understanding; * the inclusion in the preliminary order of approval and in the final judgment of a provision enjoining all class members from asserting any of claims settled pursuant to the settlement; * dismissal with prejudice of the lawsuits covered by the memorandum of understanding; * dismissal with prejudice of all similar lawsuits to the Texas State Court Lawsuit or the Federal Lawsuits (whether filed in state or federal court) that are filed before final approval of the settlement; and * the production of reasonable confirmatory discovery as contemplated by the memorandum of understanding. The Delaware Chancery Court will have exclusive jurisdiction to conduct appraisal proceedings. "Memorandum of understanding" means the memorandum of understanding entered into with the representatives of the plaintiffs in the lawsuits described in the remainder of this paragraph to settle the claims and allegations made in such lawsuits, which relate to the transactions contemplated by the Merger Agreement. David Flecker, a purported unitholder of Pioneer Southwest, filed a class action petition on May 15, 2013, on behalf of the holders of common units and a derivative suit on behalf of Pioneer Southwest against Pioneer, Pioneer USA, Pioneer Southwest GP and the directors of Pioneer Southwest GP, in the 134th Judicial District of Dallas County, Texas (the "Flecker Lawsuit"). A similar class action petition and derivative suit was filed against the same defendants on May 20, 2013, in the 160th Judicial District of Dallas County, Texas, by purported unitholder Vipul Patel (the "Patel Lawsuit"). On September 3, 2013, the court consolidated the Patel Lawsuit into the Flecker Lawsuit (as consolidated, the "Texas State Court Lawsuit"), and the plaintiffs filed a consolidated derivative and class action petition on September 5, 2013. On August 21, 2013, Allan H. Beverly, a purported unitholder, filed a class action complaint against Pioneer, Pioneer Southwest, Pioneer USA, MergerCo and the directors of Pioneer Southwest GP in the United States District Court for the Northern District of Texas (the "Beverly Lawsuit"). On September 13, 2013, Douglas Shelton, another purported unitholder, filed a class action complaint against the same defendants in the Beverly Lawsuit (as well as Pioneer Southwest GP) in the same court as the Beverly Lawsuit (such lawsuit and the Beverly Lawsuit, together, the "Federal Lawsuits"). "Final approval of the settlement" means that the Dallas County, Texas District Court has entered a final order and judgment approving such settlement, dismissing the lawsuits covered by the memorandum of understanding with prejudice on the merits and with each party to bear its own costs (with certain exceptions set forth in the Amendment and in the memorandum of understanding), and providing for the releases contemplated by the memorandum of understanding, and that such final order and judgment is final and no longer subject to further appeal or review, whether by affirmance on or exhaustion of any possible appeal or review, lapse of time, or otherwise. The contractual appraisal rights provided pursuant to the Amendment will entitle a dissenting unitholder who properly makes a demand for appraisal the right to receive the fair value for such dissenting units as determined pursuant Section 262 of the Delaware General Corporation Law and the Amendment. The result of the determination of fair value for dissenting units cannot be predicted. There can be no assurance that any dissenting unitholder exercising appraisal rights will receive consideration equal to or greater than the value of the merger consideration such unitholder would have received if such unitholder did not seek appraisal, and such fair value could be determined to be less than the merger consideration. The Conflicts Committee of the Pioneer Southwest GP board of directors (the "Pioneer Southwest Conflicts Committee") unanimously approved the Amendment and the transactions contemplated thereby and determined that the Amendment and the transactions contemplated thereby are fair and reasonable to and in the best interests of the holders of common units unaffiliated with Pioneer and Pioneer Southwest. This action taken by the Pioneer Southwest Conflicts Committee constituted "Special Approval" of the Amendment and the transactions contemplated thereby under Pioneer Southwest's partnership agreement. The Pioneer Southwest Conflicts Committee recommended that the Pioneer Southwest GP board of directors make the same approval and determination as the Pioneer Southwest Conflicts Committee. Based in part on this approval and determination, Special Approval and recommendation, the Pioneer Southwest GP board of directors approved the Amendment and the transactions contemplated thereby (such approval being unanimous among the independent directors, with the non-independent directors of Pioneer Southwest GP recusing themselves from the consideration and vote on such approval) and determined that the Amendment and the transactions contemplated thereby are fair and reasonable to and in the best interests of the holders of common units unaffiliated with Pioneer and Pioneer Southwest. The Merger was expected to close in the fourth quarter of 2013, pending the satisfaction of certain conditions thereto. Pioneer Natural Resources Company (Pioneer) is an independent oil and gas exploration and production company with operations in the United States and South Africa. Pioneer is a holding company whose assets consist of direct and indirect ownership interests in, and whose business is conducted substantially through, its subsidiaries. It sells homogenous oil, natural gas liquid (NGL) and gas units. The Company provides administrative, financial, legal and management support to United States and South Africa subsidiaries that explore for, develop and produce proved reserves. The Company's continuing operations are principally located in the United States in the states of Texas, Kansas, Colorado and Alaska. In April 2012, it acquired Carmeuse Industrial Sands (CIS). In August 2012, the Company sold its South Africa business to The Petroleum Oil and Gas Corporation of South Africa (SOC) Ltd. (PetroSA). PPL CORP: Louisville Residents File Class Action Over Coal Ash -------------------------------------------------------------- The Associated Press reports that a group of Louisville residents who say coal ash from a nearby power plant drifts into their lungs and homes have filed a federal suit against the utility company. The neighbors are seeking class action status against LG&E and its parent company, PPL Corp., alleging violations of federal environmental laws, including the Clean Air Act. The suit was filed on Dec. 16. The residents around the Cane Run Generating Station in western Louisville have complained for years about dust blowing from the plant's massive coal ash pile. The EPA is currently considering whether to classify the ash, a byproduct of burning coal, as a hazardous material. A spokesperson for LG&E did not immediately respond to a request for comment. The utility has said it will stop burning coal at the plant 2015. According to the suit, LG&E and its Pennsylvania-based parent company, PPL Corp., have "allowed dangerous coal dust and coal ash to regularly escape the Cane Run Site and to continually coat its neighbors' homes and lawns with an unsightly and dangerous film of coal dust and coal ash." The lawsuit includes photos, including the one attached to this report, which purports to show how "a cloud of coal ash was ejected from the Sludge Plant and travelled (sic) through the surrounding neighborhoods." The plaintiffs are Kathy Little, Greg Walker, Debra Walker, Richard Evans, Phillip Whitaker and Faye Whitaker. PVR PARTNERS: Weisslaw LLP Files Class Action in Pennsylvania ------------------------------------------------------------- WeissLaw LLP on Dec. 16 announced that a class action has been commenced in the United States District Court for the Eastern District of Pennsylvania on behalf of all holders of PVR Partners LP common units on October 9, 2013, in connection with the proposed takeover of PVR by Regency Energy Partners LP. If you wish to serve as lead plaintiff, you must move the Court no later than 60 days from December 16, 2013. If you wish to discuss this action or have any questions concerning this notice or your rights or interests, please contact plaintiff's counsel, Michael Rogovin or Kelly Keenan of WeissLaw at (888) 593-4771 or via e-mail at stockinfo@weisslawllp.com Any member of the putative class may move the Court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain an absent class member. The complaint charges PVR and the Board of Directors of PVR's general partner, PVR GP LLC, with violations of the Securities Exchange Act of 1934. PVR is a limited partnership that owns and operates a network of natural gas midstream pipelines and processing plants, and owns and manages coal and natural resource properties. The complaint alleges that PVR, the Board, Regency and its affiliates breached their duties, and/or aided and abetted such breaches, in connection with their attempt to consummate the Proposed Transaction pursuant to an unfair process and for an unfair price. In addition, the complaint alleges PVR and the Board disseminated a false and misleading Registration Statement on Form S-4 in violation of ----14(a) and 20(a) of the 1934 Act and Rule 14a-9 promulgated thereunder in connection with the Proposed Transaction. On October 9, 2013, PVR and Regency entered into a definitive agreement whereby Regency would acquire all of PVR's outstanding units. Thereafter, on November 8, 2013, defendants caused the S-4 to be filed with the SEC and disseminated in connection with the upcoming unitholder vote on the Proposed Transaction. The complaint alleges the S-4 contains a number of false and misleading statements that are material to unitholders who are expected to rely upon the S-4 to determine whether to approve the Proposed Transaction. The S-4 omits a number of material facts necessary to make statements made therein not false and misleading, including the events leading to the Merger Agreement, the analyses conducted by the Board's financial advisor, and PVR's prospective financial information. Plaintiff seeks injunctive and equitable relief on behalf of all PVR unitholders on October 9, 2013. The plaintiff is represented by WeissLaw -- http://www.weisslawllp.com/-- which has litigated hundreds of stockholder class and derivative actions for violations of corporate and fiduciary duties. The firm has recovered over a billion dollars for defrauded clients. QUESTCOR PHARMA: Court Partially Granted Bid to Dismiss Complaint ----------------------------------------------------------------- A U.S. district court on October 1, 2013, granted in part and denied in part Questcor Pharmaceuticals, Inc.'s motion to dismiss a consolidated amended complaint, which alleges the Company made false and/or misleading statements concerning Acthar, according to the Company's Form 10-Q filed on October 30, 2013, with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2013. On September 26, 2012, a putative class action lawsuit was filed against Questcor and certain of its officers and directors in the United States District Court for the Central District of California, captioned John K. Norton v. Questcor Pharmaceuticals, et al., No. SACv12-1623 DMG (FMOx). The complaint purports to be brought on behalf of shareholders who purchased Questcor common stock between April 26, 2011 and September 21, 2012. The complaint generally asserts that Questcor and certain of its officers and directors violated sections 10(b) and/or 20(a) of the Securities Exchange Act of 1934, as amended, or the Exchange Act, by making allegedly false and/or misleading statements concerning the clinical evidence to support the use of Acthar for indications other than infantile spasms, the promotion of the sale and use of Acthar in the treatment of MS and nephrotic syndrome, reimbursement for Acthar from third-party insurers, and Questcor's outlook and potential market growth for Acthar. The complaint seeks damages in an unspecified amount and equitable relief against the defendants. This lawsuit has been consolidated with four subsequently-filed actions asserting similar claims under the caption: In re Questcor Securities Litigation, No. CV 12-01623 DMG (FMOx). On October 1, 2013, the District Court granted in part and denied in part Questcor's motion to dismiss the consolidated amended complaint. On October 29, 2013, Questcor filed an answer to the consolidated amended complaint. Questcor Pharmaceuticals, Inc. (Questcor) is a biopharmaceutical company. The Company is focused on the treatment of patients with serious, difficult-to-treat autoimmune and inflammatory disorders. Its primary product is H.P. Acthar Gel (repository corticotropin injection), or Acthar, an injectable drug that is approved by the United States food and drug administration (FDA), for the treatment of 19 indications. Its research and development program is focused on: the evaluation of the use of Acthar for certain on- label indications; the investigation of other potential uses of Acthar for indications not FDA approved; and the expansion of its understanding of how Acthar works in the human body (pharmacology), and ultimately, its mechanisms of action in the disease states for which it is used, or may be used in the future. The Company sells Doral to pharmaceutical wholesalers, which resell Doral primarily to retail pharmacies and hospitals. RIDDELL INC: Faces Suit Over Helmets' Concussion Reduction Tech --------------------------------------------------------------- Riddell, Inc. All American Sports Corporation d/b/a Riddell/All American; Riddell Sports Group; Easton-Bell Sports, Inc.; Easton- Bell Sports, LLC; EB Sports Corporation; and RBG Holdings Corporation, Case No. 1:13-cv-07585-JBS-JS (D.N.J., December 16, 2013) is a class action brought on behalf of New Jersey consumers, who purchased Riddell Revolution brand football helmets based on the Defendants' alleged false promise that the helmet would prevent or substantially reduce the incidence of concussion compared to traditional and lower-cost football helmets. Each Defendant engaged in a scheme to mislead New Jersey consumers about the benefits of their premium-priced helmet by falsely advertising to New Jersey consumers that the Revolution helmet is manufactured with "concussion reduction technology," which reduces the incidence of concussion, and does so by up to 31%, Ms. Thiel contends. She adds that the Defendants' marketing of the Revolution helmet was intended to and did create the perception among football helmet purchasers that the Revolution helmet reduces the chance of concussion better than a traditional lower- priced football helmet. Riddell, Inc., an Illinois corporation, is engaged in the business of designing, manufacturing, selling and distributing football equipment, including Revolution brand helmets. Riddell, Inc. operates as a subsidiary of Riddell Sports Group, Inc. All American Sports Corporation, doing business as Riddell/All American, is a Delaware corporation and is engaged in the business of designing, manufacturing, selling and distributing football equipment, including Revolution brand helmets. Riddell Sports Group, Inc. is a Delaware corporation headquartered in Irving, Texas. Easton-Bell Sports, Inc. is a Delaware Corporation headquartered in Van Nuys, California, and is a parent corporation of Riddell Sports Group Inc. Easton-Bell Sports, Inc. designs, develops, and markets branded athletic equipment and accessories, including marketing and licensing products under the Riddell brand. Easton- Bell Sports, LLC is the parent corporation of Easton-Bell Sports, Inc. and is incorporated in Delaware, with a principal place of business in New York. EB Sports Corporation is a Delaware corporation headquartered in Van Nuys, California. RBG Holdings Corporation is a Delaware corporation headquartered in Van Nuys, California. RBG operates as a holding company, which through its subsidiaries designs, develops and markets sports equipment, including the Revolution brand helmets. RGB Holdings Corporation is a subsidiary of Easton-Bell Sports, LLC. The Defendants ship their products, including Revolution helmets, to direct purchasers and distributors in New Jersey, maintain a direct sales force in New Jersey, sell their products in retail stores in New Jersey, and advertise their products in New Jersey. The Plaintiff is represented by: Stephen A. Corr, Esq. STARK & STARK, P.C. 777 Township Line Road, Suite 120 Yardley, PA 19067 Telephone: (267) 907-9600 Facsimile: (267) 907-9659 E-mail: scorr@stark-stark.com - and - Dennis G. Pantazis, Esq. Dennis G. Pantazis, Jr., Esq. WIGGINS CHILDS QUINN & PANTAZIS The Kress Building 301 19th Street North Birmingham, AL 35203 Telephone: (205) 314-0500 Facsimile: (205) 254-1500 E-mail: dpantazis@wcqp.com dpantazisjr@wcqp.com SCHLUMBERGER LTD: Seeks Dismissal of Overtime Class Action ---------------------------------------------------------- Dave Kolpack, writing for The Associated Press, reports that attorneys for a major oil drilling business say a federal lawsuit accusing the company of failing to pay overtime to workers in the North Dakota oil patch should be thrown out, according to court documents filed on Dec. 17. Chris Elliott, who lives in Clearwater County, Idaho, is seeking class-action status for his complaint against Schlumberger Ltd., which provides technology and other support services for the oil and gas industry. Mr. Elliott filed the lawsuit in September. The complaint alleges the company is likely to owe at least $5 million once all the individual claims are submitted. Mr. Elliott said he worked many 16- to 20-hour days and the company used a fluctuating work week to avoid paying overtime to him and other employees. "Consequently, they were paid at rates lower than what the law requires," the lawsuit states. Schlumberger said in a response filed on Dec. 17 that the plaintiffs did not work more than 40 hours in any given work week and are not entitled to overtime pay under state or federal laws. The company said it made good-faith efforts to comply with the Fair Labor Standards Act and any alleged violations of law "were not willful." The company said the lawsuit fails to state a valid claim and the plaintiffs have not suffered any damages. Attorneys for the two sides did not return phone messages left on Dec. 17 by The Associated Press. The complaint said employees did not have a "clear and mutual understanding" that they would be paid using a fluctuating work week and accuses Schlumberger of leaving out bonuses and other compensation when calculating wages for overtime. The plaintiffs are seeking overtime for all time worked over 40 hours each week at time-and-a-half the regular rate. The lawsuit said there are hundreds potential class members, which include current and former equipment operators and trainees, as well as other employees performing similar duties in North Dakota. Mr. Elliott has been joined in the lawsuit by three other workers. SEQWATER: Ipswich Flood Victims Sign Up for Class Action -------------------------------------------------------- Joel Gould, writing for Gatton Star, reports that hundreds of Ipswich flood victims signed up for the class action against the Queensland Government at a meeting on Dec. 16. Flood class action litigators Maurice Blackburn Lawyers updated residents on the AUD1 billion class action, while victims called for justice to be done. Bentham IMF, the litigation funders, has announced that they are unconditionally funding the case. Robert Peschke and his wife lost their two-storey house at Moores Pocket in the 2011 floods. He was not insured and was out of pocket hundreds of thousands of dollars. "I hope for some justice out of this (class action) because I believe what happened was man-made and that the dam was incorrectly run," he said. "People should be held accountable." Maurice Blackburn principal Damian Scattini said flood victims had until February 28, 2014, to register for the class action. Mr. Scattini rubbished claims by Premier Campbell Newman that the class action was a cash grab by lawyers. "There is no cash grab and the fact is that there is absolutely nothing on offer from the State Government," he said. "The people here need someone on their side . . . and we are those people. With the litigation funding in place, there is no prospect of anyone being out of pocket as a result of this. So they are covered." In a statement Seqwater said, "the Queensland Floods Commission of Inquiry in no way concluded there was any negligence in its management of the January 2011 flood event". "The independent expert retained by the commission concluded that, in light of the information available at the time and the requirements of the Wivenhoe manual, the flood engineers achieved close to the best possible flood mitigation result for the January event," the statement said. "Furthermore, four other highly respected independent experts who appeared at the Commission supported Seqwater's view that releases actually made by the flood engineers were appropriate and reasonable. "An independent review of Seqwater's report into the January 2011 flood by the United States Bureau of Reclamation (USBR) and United States Army Corps of Engineers (USACE) also strongly supported the decisions made and actions undertaken by Seqwater." But Mr Scattini said Seqwater's claims were incorrect "The flood commission of inquiry found that the engineers didn't follow the manual," he said. "If they think that they can go to court and persuade them that is a good defense . . . then good luck to them. "But they are well behind the loop as usual. We are not reliving the flood commission of inquiry. The inquiry only looked at the period from the 6th of January forward. "We are looking at the event of the flood period and that goes back to December." Seqwater said it remained "confident that its position will be justified if the matter ever comes before a court". SOUTHWEST AIRLINES: Summary Judgment Bids to Be Briefed by Jan. 15 ------------------------------------------------------------------ The motions for summary judgment filed by Delta Air Lines Inc. and AirTran Holdings Inc. in an antitrust suit as well as the antitrust plaintiffs' class certification are to be fully briefed by January 15, 2014, according to Southwest Airlines Co.'s Form 10-Q filed on October 30, 2013, with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2013. A complaint alleging violations of federal antitrust laws and seeking certification as a class action was filed against Delta and AirTran in the United States District Court for the Northern District of Georgia in Atlanta on May 22, 2009. The complaint alleged, among other things, that AirTran attempted to monopolize air travel in violation of Section 2 of the Sherman Act, and conspired with Delta in imposing $15-per-bag fees for the first item of checked luggage in violation of Section 1 of the Sherman Act. The initial complaint sought treble damages on behalf of a putative class of persons or entities in the United States who directly paid Delta and/or AirTran such fees on domestic flights beginning December 5, 2008. After the filing of the May 2009 complaint, various other nearly identical complaints also seeking certification as class actions were filed in federal district courts in Atlanta, Georgia; Orlando, Florida; and Las Vegas, Nevada. All of the cases were consolidated before a single federal district court judge in Atlanta. A Consolidated Amended Complaint was filed in the consolidated action on February 1, 2010, which broadened the allegations to add claims that Delta and AirTran conspired to reduce capacity on competitive routes and to raise prices in violation of Section 1 of the Sherman Act. In addition to treble damages for the amount of first baggage fees paid to AirTran and to Delta, the Consolidated Amended Complaint seeks injunctive relief against a broad range of alleged anticompetitive activities, as well as attorneys' fees. On August 2, 2010, the Court dismissed plaintiffs' claims that AirTran and Delta had violated Section 2 of the Sherman Act; the Court let stand the claims of a conspiracy with respect to the imposition of a first bag fee and the airlines' capacity and pricing decisions. On June 30, 2010, the plaintiffs filed a motion to certify a class, which AirTran and Delta have opposed. The Court has not yet ruled on the class certification motion, and further briefing has been scheduled. The parties engaged in extensive discovery, which was extended due to discovery disputes between plaintiffs and Delta, but discovery has now closed. On June 18, 2012, the parties filed a Stipulation and Order that plaintiffs have abandoned their claim that AirTran and Delta conspired to reduce capacity. On August 31, 2012, AirTran and Delta moved for summary judgment on all of plaintiffs' remaining claims, and on the same day the plaintiffs filed a supplemental brief on class certification. Thereafter, plaintiffs raised additional electronic discovery disputes with Delta, and the Court suspended the summary judgment briefing while an expert examined Delta's discovery. On September 25, 2013, the Court entered an order which ended the expert's work and resumed briefing on summary judgment and class certification. Under the current schedule, the motions for summary judgment and for class certification are to be fully briefed by January 15, 2014. AirTran denies all allegations of wrongdoing, including those in the Consolidated Amended Complaint, and intends to defend vigorously any and all such allegations. The Company is from time to time subject to various legal proceedings and claims arising in the ordinary course of business, including, but not limited to, examinations by the Internal Revenue Service. The Company's management does not expect that the outcome in any of its currently ongoing legal proceedings or the outcome of any proposed adjustments presented to date by the Internal Revenue Service, individually or collectively, will have a material adverse effect on the Company's financial condition, results of operations, or cash flow. Southwest Airlines Co. operates Southwest Airlines, a passenger airline, which provides scheduled air transportation in the United States. As of December 31, 2011, the Company was serving 72 cities in 37 states throughout the United States. During the year ended December 31, 2011, the Company added addition services in two new states and three new cities: Charleston, South Carolina; Greenville-Spartanburg, South Carolina; and Newark, New Jersey. Southwest provides point-to-point. On May 2, 2011, the Company acquired AirTran Holdings, Inc. TEXAS: Petition to Appeal Class Cert. in Foster Kids' Suit Tossed ----------------------------------------------------------------- The district court in Texas on August 27, 2013, certified a class of 12,000 children in the Texas foster care system in a suit alleging systemic violations of the children's rights and seeking broad, affirmative injunctive relief. On September 11, 2013, Defendants-Petitioners, the State of Texas, filed a petition for permission to appeal the class certification order under Federal Rule of Civil Procedure 23(f). Plaintiffs-Respondents moved to dismiss the petition as untimely, arguing the petition was filed one day late. The State then filed a motion to suspend Federal Rule of Appellate Procedure 25(a)(2)(A) and Fifth Circuit Rule 26.1, which pertain to the circumstances under which a filing is considered timely. The United States Court of Appeals for the Fifth Circuit dismissed the petition as untimely saying the State missed its narrow window to seek review. Pursuant to Federal Rule of Civil Procedure 23(f), says the Fifth Circuit, the State had 14 days from the issuance of the certification order on August 27 in which to file. Under Federal Rule of Appellate Procedure 25(a)(2)(A) and Fifth Circuit Rule 26.1, the Court must actually receive the petition in order for the filing to be timely. Thus, the Court had to actually receive the filing by September 10, which it did not. The Court did not receive the filing until September 11. Therefore, the Fifth Circuit denied the Petitioners' opposed motion to suspend Federal Rule of Appellate Procedure 25(a)(2)(A) and 5th Circuit Rule 26.1; granted the Respondents' opposed motion to dismiss; and dismissed the petition for permission to appeal under Federal Rule of Civil Procedure 23(f). The case is M.D., by next of friend Sarah R. Stukenberg; Z.H., by next of friend Carla B. Morrison; S.A., by next of friend Javier E. Solis; A.M., by next of friend Jennifer Talley; J.S., by next of friend Anna J. Ricker; K.E., by next of friend John W. Cliff, Jr.; H.V., by next of friend Anna J. Ricker; P.O., by next of friend Anna J. Ricker; L.H., by next of friend Estela C. Vasquez; C.H., by next of friend Estela C. Vasquez; S.S., by next of friend Estela C. Vasquez; A.R., by next of friend Tom McKenzie, individually and on behalf of all others similarly situated, Plaintiffs-Respondents, v. GOVERNOR RICK PERRY, in his official capacity as Governor of the State of Texas; KYLE JANEK, in his official capacity as Executive Commissioner of the Health and Human Services Commission of the State of Texas; JOHN J. SPECIA, JR., in his official capacity as Commissioner of the Department of Family and Protective Services of the State of Texas, Defendants- Petitioners, NO. 13-90045. A copy of the Fifth Circuit's November 19, 2013 Opinion is available at http://is.gd/WGrUJPfrom Leagle.com. TIME WARNER CABLE: Court Approved Motion to Dismiss Two Lawsuits ---------------------------------------------------------------- The U.S. District Court for the District of South Carolina on September 30, 2013, granted Time Warner Cable Inc.'s motions to dismiss and compel arbitration in two purported class action lawsuits alleging breach of contract and violation of various state consumer protection statutes, according to the Company's Form 10-Q filed on October 31, 2013, with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2013. The Company is the defendant in three purported class action lawsuits alleging breach of contract and violation of various state consumer protection statutes in connection with the Company's high-speed data modem fee. On November 30, 2012, the plaintiffs in Fred W. Elmore v. Time Warner Cable Inc. (the "Elmore lawsuit") filed a complaint in a purported class action in the U.S. District Court for the District of South Carolina alleging that the Company breached its contract with customers and violated South Carolina state consumer protection statutes by charging a fee for the provision of a high-speed data modem. On February 4, 2013, the plaintiffs in Mark Cox v. Time Warner Cable Inc. (the "Cox lawsuit") filed an amended complaint in a purported class action in the U.S. District Court for the District of South Carolina alleging that the Company breached its contract with customers whose high-speed data service is provided as part of a promotional package by charging a fee for the provision of a high- speed data modem. On February 26, 2013, the plaintiffs in Lorraine Damato, et al. v. Time Warner Cable Inc. (the "Damato lawsuit") filed a complaint in a purported class action in the U.S. District Court for the Eastern District of New York alleging that the Company breached its contract with customers and violated New York, New Jersey and California state consumer protection statutes by charging a fee for the provision of a high-speed data modem. In each case, the plaintiffs are seeking, among other things, unspecified monetary damages and an injunction to prevent the Company from charging a fee for the provision of a high-speed data modem. On July 30, 2013, the U.S. District Court for the Eastern District of New York stayed the action and granted the Company's motion to compel arbitration in the Damato lawsuit and, on September 30, 2013, the U.S. District Court for the District of South Carolina granted the Company's motions to dismiss and compel arbitration in each of the Elmore and Cox lawsuits. Each of the arbitrations is limited to the named plaintiffs. The Company intends to defend against these lawsuits vigorously, but is unable to predict the outcome of the lawsuits or reasonably estimate a range of possible loss. Time Warner Cable Inc., is among the largest providers of video, high-speed data and voice services in the U.S., with technologically advanced, well-clustered cable systems located mainly in five geographic areas - New York State (including New York City), the Carolinas, the Midwest (including Ohio, Kentucky and Wisconsin), Southern California (including Los Angeles) and Texas. As of September 30, 2013, TWC served approximately 15.1 million customers (approximately 14.5 million residential services customers and 606,000 business services customers) who subscribed to one or more of its video, high-speed data and voice services. TREX COMPANY: Wins Final Okay of Defective Deck Suit Settlement --------------------------------------------------------------- Judge Jeffrey S. White of the United States District Court for the Northern District of California granted final approval of Trex Company's settlement of a class action lawsuit initiated by Eric Ross, et al. The Settlement Class consists of thousands of persons, who own decks or other structures composed of any and all Trex non-shelled wood-plastic composite decking, railing, or fencing material sold under various trademarks. The Class alleges that the Trex Products manufactured during the relevant time period are defective by design or manufacture. The Settlement Agreement also provides for attorneys' fees and reimbursement of their expenses in the amount of $1,475,000, and $7,500 stipends to each of the Class Representatives. The Plaintiffs are represented by: Robert F. Lopez, Esq. Steve W. Berman, Esq. Tyler S. Weaver, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 1918 8th Avenue, Suite 3300 Seattle, WA 98101 Telephone: (206) 623-7292 Facsimile: (206) 623-0594 E-mail: robl@hbsslaw.com steve@hbsslaw.com tyler@hbsslaw.com - and - Jeff D. Friedman, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 715 Hearst Avenue, Suite 202 Berkeley, CA 94710 Telephone: (510) 725-3000 Facsimile: (510) 725-3001 E-mail: jefff@hbsslaw.com - and - Elizabeth A. Alexander, Esq. LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 150 4th Avenue North, Suite 1650 Nashville, TN 37219-2423 Telephone: (615) 313-9000 Facsimile: (615) 313-9965 E-mail: ealexander@lchb.com - and - Jonathan David Selbin, Esq. Nimish Ramesh Desai, Esq. LIEFF CABRASER HEIMANN & BERNSTEIN LLP 275 Battery Street, 30th Floor San Francisco, CA 94111-3336 Telephone: (415) 956-1000 Facsimile: (415) 956-1008 E-mail: jselbin@lchb.com ndesai@lchb.com - and - James J. Pizzirusso, Esq. Richard S. Lewis, Esq. HAUSFELD LLP 1700 K St., NW, Suite 650 Washington, DC 20006 Telephone: (202) 540-7200 Facsimile: (202) 540-7201 E-mail: jpizzirusso@hausfeldllp.com rlewis@hausfeldllp.com - and - Jori Naegele, Esq. Robert D. Gary, Esq. GARY, NAEGELE & THEADO, LLC 446 Broadway Lorain, OH 44052-1797 Telephone: (440) 244-4809 Facsimile: (440) 244-3462 E-mail: jbnaegele@gmail.com rdgary@gmail.com - and - Kim D. Stephens, Esq. TOUSLEY, BRAIN STEPHENS PLLC 1700 Seventh Avenue, Suite 2200 Seattle, WA 98101 Telephone: (206) 682-5600 Facsimile: (206) 682-2992 E-mail: kstephens@tousley.com - and - Michael Andrew McShane, Esq. AUDET & PARTNERS LLP 221 Main Street, Suite 1460 San Francisco, CA 94105 Telephone: (415) 982-1776 Facsimile: (415) 568-2556 E-mail: mmcshane@audetlaw.com - and - Lawrence Edward Skidmore, Esq. ARONOWITZ & SKIDMORE, INC. 200 Auburn Folsom Road, Suite 305 Auburn, CA 95603 Telephone: (530) 823-9736 Facsimile: (530) 823-5241 E-mail: lskidmore@asilaw.org The Defendant is represented by: Matthew G. Ball, Esq. Rachel Chatman, Esq. K&L GATES LLP Four Embaracadero Center, Suite 1200 San Francisco, CA 94111 Telephone: (415) 882-8200 Facsimile: (415) 882-8220 E-mail: Matthew.Ball@klgates.com rachel.chatman@klgates.com - and - Patrick J. Perrone, Esq. K&L GATES LLP One Newark Center, 10th Floor Newark, NJ 07102 Telephone: (973) 848-4000 Facsimile: (973) 848-4001 E-mail: patrick.perrone@klgates.com - and - Todd Lawrence Nunn, Esq. K AND L GATES LLP 925 Fourth Avenue, Suite 2900 Seattle, WA 98104 Telephone: (206) 370-7616 Facsimile: (206) 370-6144 E-mail: todd.nunn@klgates.com Respondent William Clark is represented by: William Frederick Clark, Esq. CLARK & ASSOCIATES 14182 Ten Acres Ct Saratoga, CA 95070 Telephone: (408) 867-7827 Facsimile: (408) 867-7827 E-mail: billclark700@gmail.com The case is Ross, et al. v. Trex Company, Inc., Case No. 3:09-cv- 00670-JSW, in the U.S. District Court for the Northern District of California. UNITED STATES: Sen. Rand Paul Mulls NSA Surveillance Class Action ----------------------------------------------------------------- Steven Nelson, writing for US News and World Report, reports that after months of consideration, Sen. Rand Paul, R-Ky., is moving closer to filing a lawsuit in federal court against National Security Agency surveillance programs. A senior Paul staffer says U.S. District Court Judge Richard Leon's Dec. 16 decision that NSA opponents have standing to sue over the bulk collection of phone records makes Mr. Paul "much more likely" to file his own lawsuit. The senior staffer, who spoke with U.S. News on background, says hundreds of thousands of people volunteered online as possible plaintiffs after Paul first floated the idea of a class-action lawsuit in June. The senator has not firmly decided to file suit and it's still possible Mr. Paul will choose to instead assist with three already-filed lawsuits against the NSA. If Mr. Paul does file a lawsuit it would be the fourth major legal attack against the NSA's bulk collection and five-year storage of American phone records. Lawsuits against the phone-record collection are already filed in federal court by the American Civil Liberties Union in New York, by conservative legal activist Larry Klayman of Freedom Watch in Washington, D.C., and by the Electronic Frontier Foundation in San Francisco. Mr. Klayman won a major victory against the NSA on Dec. 16, with Leon ruling the phone record program is likely a violation of the Fourth Amendment. Judge Leon granted a preliminary injunction barring the collection, but stayed implementation pending appeal. Unlike the possible Paul lawsuit, Mr. Klayman only sought a handful of original plaintiffs. He is seeking for the "class" he represents to be defined by Judge Leon to include all Americans affected by the program, which purportedly helps scuttle terrorist plots -- an accomplishment Judge Leon disputed. The senior Paul staffer stressed that Paul is currently evaluating strategy options. If a lawsuit is filed, it would likely be in either D.C. or Kentucky. It's unclear which Paul-affiliated entity would file the challenge. "As of now the senator is in the process of finding the best lawyer to file the [possible] suit [and] is still accepting more plaintiffs for the case," Paul spokeswoman Eleanor May said. The website of Mr. Paul's political action committee, RANDPAC, currently has a pop-up advertisement that asks prospective plaintiffs to provide their name, email address and ZIP code. The ad says it seeks 10 million plaintiffs and asks for "a generous donation to help rally up to ten million Americans to support my lawsuit to stop Big Brother." Regardless of the legal approach selected, the senior staffer said Mr. Paul's footwork to seek plaintiffs should help with possible standing issues, which have historically -- although not in the initial Klayman case decision -- derailed anti-surveillance lawsuits. The pending EFF and ACLU lawsuits also do not have a large number of individuals named as plaintiffs. The EFF lawsuit is brought by a coalition of advocacy groups and the ACLU's challenge is brought by the organization itself, as a customer of Verizon Business Network Services, the entity specified in an officially recognized court order leaked by Edward Snowden. Although Judge Leon took a preliminary sledgehammer to the Justice Department's legal argument and U.S. District Court Judge William Pauley of New York is also considering an injunction request from the ACLU, the Paul staffer stressed the legal fight may take a while to resolve and said the senator wouldn't be too late to have a meaningful impact. In the sweeping Dec. 16 victory for NSA critics, Judge Leon ruled Mr. Klayman had standing to challenge the phone record collection, that his court had the authority to review Foreign Intelligence Surveillance Court actions, that the landmark 1979 case Smith v. Maryland was ill-suited to justify the surveillance and that the program likely violates the Fourth Amendment. Judge Leon described the collection as "almost-Orwellian" and said "the government does not cite a single instance in which analysis of the NSA's bulk metadata collection actually stopped an imminent attack, or otherwise aided the government in achieving any objective that was time-sensitive." Mr. Paul, who has introduced legislation to ease standing issues and also to forbid indiscriminate collection of Americans' records, applauded Judge Leon's decision on Dec. 16. "I will continue to fight against the violations of Americans' constitutional rights through illegal phone surveillance until it is stopped once and for all," he said in a release. In addition to considering a lawsuit against the phone record collection, Mr. Paul is also looking at legal options against NSA Internet programs. Mr. Klayman is currently suing to halt the PRISM Internet program, but Judge Leon did not grant an injunction in that case. VANGUARD NATURAL: Del. Supreme Court Affirms Suit Dismissal ----------------------------------------------------------- The Delaware Supreme Court affirmed on July 22, 2013, the order granting Vanguard Natural Resources, LLC's motion to dismiss a putative class action complaint, according to the Company's Form 10-Q filed on October 31, 2013, with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2013. On April 5, 2011, Stephen Bushansky, a purported unitholder of ENP, filed a putative class action complaint in the Delaware Court of Chancery on behalf of the unitholders of ENP. Another purported unitholder of ENP, William Allen, filed a similar action in the same court on April 14, 2011. The Bushansky and Allen actions have been consolidated under the caption In re: Encore Energy Partners LP Unitholder Litigation, C.A. No. 6347-VCP (the "Delaware State Court Action"). On December 28, 2011, those plaintiffs jointly filed their second amended consolidated class action complaint naming as defendants ENP, Scott W. Smith, Richard A. Robert, Douglas Pence, W. Timothy Hauss, John E. Jackson, David C. Baggett, Martin G. White, and Vanguard. That putative class action complaint alleged, among other things, that defendants breached the partnership agreement by recommending a transaction that was not fair and reasonable. Plaintiffs sought compensatory damages. Vanguard filed a motion to dismiss this lawsuit. On August 31, 2012, the Chancery Court entered an order granting Vanguard's motion to dismiss the complaint for failure to state a claim and dismissing the Delaware State Court Action with prejudice. On September 27, 2012, Mr. Allen filed a notice of appeal of the dismissal of his lawsuit. On July 22, 2013, the Delaware Supreme Court affirmed the dismissal of the lawsuit. Vanguard Natural Resources, LLC is a publicly traded limited liability company focused on the acquisition and development of mature, long-lived oil and natural gas properties in the United States. WILLIAMS COMPANIES: ADEC to Enter Compliance Order in 2014 ---------------------------------------------------------- The Williams Companies, Inc., disclosed in its Form 10-Q filed on October 31, 2013, with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2013, that during the first quarter of 2013, the Alaska Department of Environmental Conservation informed Flint Hills Resources Alaska, LLC, and the Company that it intends to enter a compliance order to address the environmental remediation of sulfolane and other possible contaminants including cleanup work outside the refinery's boundaries to be performed in 2014. The Company states: "In January 2010, James West filed a class action lawsuit in state court in Fairbanks, Alaska on behalf of individual property owners whose water contained sulfolane contamination allegedly emanating from the Flint Hills Oil Refinery in North Pole, Alaska. The suit named our subsidiary, Williams Alaska Petroleum Inc. (WAPI), and Flint Hills Resources Alaska, LLC (FHRA), a subsidiary of Koch Industries, Inc., as defendants. We owned and operated the refinery until 2004 when we sold it to FHRA. We and FHRA have made claims under the pollution liability insurance policy issued in connection with the sale of the North Pole refinery to FHRA. We and FHRA also filed claims against each other seeking, among other things, contractual indemnification alleging that the other party caused the sulfolane contamination. "In 2011, we and FHRA settled the James West claim. Our claims against FHRA and their claims against us remain outstanding. We and FHRA filed motions for summary judgment on the other's claims, but the motions are unlikely to resolve all the outstanding claims. "We currently estimate that our reasonably possible loss exposure in this matter could range from an insignificant amount up to $32 million, although uncertainties inherent in the litigation process, expert evaluations, and jury dynamics might cause our exposure to exceed that amount." The Company also disclosed that, "Independent of the litigation matter described in the preceding paragraphs, the Alaska Department of Environmental Conservation (ADEC) indicated that it views FHRA and us as responsible parties. During the first quarter 2013, ADEC informed FHRA and us that it intends to enter a compliance order to address the environmental remediation of sulfolane and other possible contaminants including cleanup work outside the refinery's boundaries to be performed in 2014. In addition, ADEC will seek from each of FHRA and us an adequate financial performance guarantee for the benefit of ADEC. As such, we will likely be required to contribute some amount, whether to reimburse the State, to reimburse FHRA, or to comply with an ADEC order. Due to the ongoing assessment of the level and extent of sulfolane contamination and the ultimate cost of remediation and division of costs between the named responsible parties, we are unable to estimate a range of liability at this time." The Williams Companies, Inc. (Williams) is an energy infrastructure company focused on connecting North America's hydrocarbon resource plays to markets for natural gas, natural gas liquids (NGLs), and olefins. Its operations span from the deepwater Gulf of Mexico to the Canadian oil sands. It operates in three segments: Williams Partners, Midstream Canada & Olefins and Other. Its interstate gas pipeline and domestic midstream interests are held through its investment in Williams Partners L.P. (WPZ). It owns the general-partner interest and a 70% limited-partner interest in WPZ. Williams also owns a Canadian midstream and domestic olefins production business, which processes oil sands off-gas and produces olefins for petrochemical feedstocks. In November 2012, Williams Partners LP acquired Williams Companies Inc's approximately 83% interest in the Geismar olefins production facility In December 2012, it acquired Access Midstream Partners GP, L.L.C. and Access Midstream Partners LP. XEROX CORP: Remains Defendant in Consolidated Securities Action --------------------------------------------------------------- Xerox Corporation remains a defendant in a pending consolidated securities law action (consisting of 17 cases) on behalf of all persons and entities who purchased Xerox Corporation common stock during the period October 22, 1998 through October 7, 1999 inclusive, according to the Company's Form 10-Q filed on October 31, 2013, with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2013. A consolidated securities law action (consisting of 17 cases) is pending in the United States District Court for the District of Connecticut. Defendants are the Company, Barry Romeril, Paul Allaire and G. Richard Thoman. The consolidated action is a class action on behalf of all persons and entities who purchased Xerox Corporation common stock during the period October 22, 1998 through October 7, 1999 inclusive (Class Period) and who suffered a loss as a result of misrepresentations or omissions by Defendants as alleged by Plaintiffs (the "Class"). The Class alleges that in violation of Section 10(b) and/or 20(a) of the Securities Exchange Act of 1934, as amended (1934 Act), and SEC Rule 10b-5 thereunder, each of the defendants is liable as a participant in a fraudulent scheme and course of business that operated as a fraud or deceit on purchasers of the Company's common stock during the Class Period by disseminating materially false and misleading statements and/or concealing material facts relating to the defendants' alleged failure to disclose the material negative impact that the April 1998 restructuring had on the Company's operations and revenues. The complaint further alleges that the alleged scheme: (i) deceived the investing public regarding the economic capabilities, sales proficiencies, growth, operations and the intrinsic value of the Company's common stock; (ii) allowed several corporate insiders, such as the named individual defendants, to sell shares of privately held common stock of the Company while in possession of materially adverse, non-public information; and (iii) caused the individual plaintiffs and the other members of the purported class to purchase common stock of the Company at inflated prices. The complaint seeks unspecified compensatory damages in favor of the plaintiffs and the other members of the purported class against all defendants, jointly and severally, for all damages sustained as a result of defendants' alleged wrongdoing, including interest thereon, together with reasonable costs and expenses incurred in the action, including counsel fees and expert fees. In 2001, the Court denied the defendants' motion for dismissal of the complaint. The plaintiffs' motion for class certification was denied by the Court in 2006, without prejudice to refiling. In February 2007, the Court granted the motion of the International Brotherhood of Electrical Workers Welfare Fund of Local Union No. 164, Robert W. Roten, Robert Agius (Agius) and Georgia Stanley to appoint them as additional lead plaintiffs. In July 2007, the Court denied plaintiffs' renewed motion for class certification, without prejudice to renewal after the Court holds a pre-filing conference to identify factual disputes the Court will be required to resolve in ruling on the motion. After that conference and Agius's withdrawal as lead plaintiff and proposed class representative, in February 2008 plaintiffs filed a second renewed motion for class certification. In April 2008, defendants filed their response and motion to disqualify Milberg LLP as a lead counsel. On September 30, 2008, the Court entered an order certifying the class and denying the appointment of Milberg LLP as class counsel. Subsequently, on April 9, 2009, the Court denied defendants' motion to disqualify Milberg LLP. On November 6, 2008, the defendants filed a motion for summary judgment. On March 29, 2013, the Court granted defendants' motion for summary judgment in its entirety. On April 26, 2013, plaintiffs filed a notice of appeal to the United States Court of Appeals for the Second Circuit. The appeal process is ongoing. According to the Company, "The individual defendants and we deny any wrongdoing and are vigorously defending the action. At this time, we do not believe it is reasonably possible that we will incur additional material losses in excess of the amount we have already accrued for this matter. In the course of litigation, we periodically engage in discussions with plaintiffs' counsel for possible resolution of this matter. Should developments cause a change in our determination as to an unfavorable outcome, or result in a final adverse judgment or a settlement for a significant amount, there could be a material adverse effect on our results of operations, cash flows and financial position in the period in which such change in determination, judgment or settlement occurs." Xerox Corporation provides a portfolio of business process and information technology (IT) outsourcing support, document technology and solutions. Through the Company's business process and IT outsourcing it offers global services from claims reimbursement and electronic toll transactions to the management of human resource (HR) benefits and customer care centers to the operation of a company's technology infrastructure. The Company operates in three business segments: Services, which includes business process outsourcing (BPO), information technology outsourcing (ITO) and document outsourcing (DO); Technology, which includes the sale of products and supplies, as well as the associated technical service and financing of those products, and other. In June 2013, Domtar Corp acquired Xerox Corp paper and print media products business in the United States and Canada. In June 2013, Xerox Corp acquired LearnSomething Inc. Effective August 13, 2013, Xerox Corp acquired CPAS Systems Inc. * Plaintiff Lawyers Attempt to Skirt CAFA in Texas, Report Shows ---------------------------------------------------------------- Marilyn Tennissen, writing for Southeast Texas Record, reports that for the first time since it has been published, Texas, does not appear on the list of "Judicial Hellholes" in an annual report. Since 2002, the American Tort Reform Foundation report ranks places where judges in civil cases systematically apply laws and court procedures in an unfair and unbalanced manner, generally against defendants. Over the past few years, Texas has moved from one of the top spots on the list to the watch list and is now off the list completely. In 2013, the dubious honor of No. 1 Hellhole is the state of California. The report states the food industry is the "latest target" of plaintiffs' lawyers who seek to take advantage of the state's plaintiff-friendly consumer protection laws. In addition, asbestos litigation continues to migrate from reform states into California's "permissive courts." Texas' neighbor to the east, Louisiana, has the No. 2 spot on the Hellhole list. "Louisiana rockets up the Judicial Hellholes list after the state's high court gave new life to abusive 'legacy lawsuits' that threaten the state's onshore oil and gas production," the report states. Rounding out the top six spots on the list are New York City, West Virginia, Madison and St. Clair counties in Illinois and South Florida. While not on the Hellhole list for 2013, Texas is still part of the compilation. For the past several years, the report has mentioned patent troll litigation in East Texas, calling out the high number of patent lawsuits suits filed in the area. "The Eastern District of Texas is the most popular venue for patent trolls because the court moves cases to trial quickly and its juries are perceived to be plaintiff-friendly," this year's report noted. Diane Davis, executive director with East Texans Against Lawsuit Abuse (ETALA), responded to the report. "While it might be a positive that our courts are known for moving these cases quickly, we have to be concerned when any area is viewed as being overly friendly to plaintiffs or defendants, as perceptions of unfairness invite abuse," she said in a statement. Previous Judicial Hellholes reports have called the area the "center of the patent litigation universe" noting that between 2002 and 2010, the district saw nearly a ten-fold increase in patent filings. "It's never a positive for a community to be a hot-bed of litigation," Ms. Davis added. "We are pleased to see ATRA continue to focus on this area and also that our state and federal leaders are taking this issue seriously." Ms. Davis commended Lt. Governor David Dewhurst asking the Senate to study the issue during the state legislative interim and U.S. Senator John Cornyn for his work to pass federal laws to rein in abusive patent lawsuits. "The Texas Legislature and Texas elected officials are working tirelessly on behalf of Texas innovators and entrepreneurs to combat patent trolls," Ms. Davis said. "While Texas has continued to be the national leader in reigning in frivolous lawsuits, clearly there is still work to be done, and we appreciate ATRA for their focus on this issue and our state leaders for working to ensure our courts are used for justice, not greed." The U.S. Court of Appeals for the Fifth Circuit, which has jurisdiction for Texas federal cases, was given "Point of Light" status for upholding Mississippi's $1 million limit on noneconomic damages in general personal injury cases. Texas is also mentioned in the Point of Light section as one of 14 states that "enacted significant, positive civil justice reforms." "Texas provided an automatic mechanism (HB 1325) for state courts to dismiss long dormant asbestos and silica claims, while preserving a claimant's ability to refile a dismissed case should the claimant develop an impairing condition," the report states. In a section of the report regarding class actions, ATRF points out Nueces and Hidalgo counties in Texas. Mass actions there demonstrate plaintiff lawyers' attempts to skirt the Class Action Fairness Act, the report states. "Congress enacted the Class Action Fairness Act of 2005 (CAFA) in response to a handful of jurisdictions, such as Madison County, Illinois, becoming magnets for massive lawsuits against out-of- state businesses. CAFA, which gained bipartisan support, moved many of these multi-state class actions into neutral federal courts," the report states. "Plaintiffs' lawyers, however, have developed strategies to exploit exceptions in the law to dodge federal jurisdiction and keep their cases in state courts, which are often those considered Judicial Hellholes." The American Tort Reform Foundation is a District of Columbia nonprofit organization, founded in 1997. The primary purpose of the Foundation is to educate the general public about how the American civil justice system operates, the role of tort law in the civil justice system and the impact of tort law on the public and private sectors. Asbestos Litigation ASBESTOS UPDATE: Thompson Bldg. Gets OSHA Citation for Exposure --------------------------------------------------------------- The U.S. Department of Labor's Occupational Safety and Health Administration has cited Thompson Building Wrecking Co. Inc., based in Augusta, for four violations after exposing workers to asbestos during demolition at the Grovetown Elementary School in Grovetown. OSHA initiated the July inspection after receiving a complaint. Proposed penalties are $63,700. "Although the employer was aware of the presence of asbestos- containing material and familiar with its hazards, no preventive action was taken to protect employees," said Bill Fulcher, director of OSHA's Atlanta-East Area Office. "It is the employer's responsibility to provide a safe and healthful workplace." One willful citation, with a $49,000 penalty, was issued for knowingly exposing workers to asbestos-containing material by a skid steer loader with a grapple attachment to remove debris from scrap metal. The debris contained asbestos material and was allowed to accumulate on the ground. A willful violation is one committed with intentional, knowing or voluntary disregard for the law's requirements, or with plain indifference to worker safety and health. Three serious violations were also cited, with $14,700 in penalties, for the employer's failure to conduct asbestos work, and its removal, within a regulated area to minimize exposure; not monitoring exposure levels during removal of asbestos-containing material; and exposing workers to inhalation hazards from unbagged asbestos-containing material. A serious violation occurs when there is substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known. Thompson Building Wrecking specializes in demolition, asbestos removal and large container services. The company has 15 business days from receipt of the citations and proposed penalties to comply, request a conference with OSHA's area director, or contest the findings before the independent Occupational Safety and Health Review Commission. To ask questions, obtain compliance assistance, file a complaint, or report workplace hospitalizations, fatalities or situations posing imminent danger to workers, the public should call OSHA's toll-free hotline at 800-321-OSHA (6742) or the agency's Atlanta- East Area Office at 770-493-6644. Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA's role is to ensure these conditions for America's working men and women by setting and enforcing standards, and providing training, education and assistance. ASBESTOS UPDATE: WR Grace Inks Last Settlement Before Ch. 11 Exit ----------------------------------------------------------------- W.R. Grace & Co. and its debtor affiliates ask Judge Kevin J. Carey of the U.S. Bankruptcy Court for the District of Delaware to approve a settlement agreement negotiated with certain holders of claims under their Prepetition Credit Facilities. After operating in Chapter 11 for nearly 13 years and litigating numerous appeals, the Debtors, by the settlement with the Bank Lender Group, have resolved the only remaining issue standing in the way of their emergence from Chapter 11 as healthy companies free of their massive prepetition asbestos liabilities. Certain parties appealed the order confirming the Debtors' Joint Plan of Reorganization, which was co-proposed by the Official Committee of Asbestos Personal Injury Claimants, the Asbestos PI Future Claimants' Representative, and the Official Committee of Equity Security Holders. The appeal was raised to the U.S. Court of Appeals for the Third Circuit. The Bank Lender Group's appeal concerns the rate of postpetition interest to be paid to the holders of claims under the Prepetition Credit Facilities. The Plan provides for the Bank Lender Group to be paid, on the Effective Date, the principal amount of their claims, plus outstanding and undisputed prepetition interest, plus postpetition interest calculated at the rate prescribed by the Plan. The Bank Lender Group contends that holders of claims under the Prepetition Credit Facilities are entitled to postpetition interest at a higher rate, namely the contract default rate provided under the Prepetition Credit Facilities, as opposed to postpetition interest arising from the Prepetition Credit Facilities at the Plan Rate. The principal terms of the settlement are as follows: (a) On the Effective Date, the Debtors will transfer the following amounts in cash to the administrative agent for the Bank Lender Group: (i) $971 million of principal/undisputed interest through Dec. 31, 2013; (ii) $129 million; and (iii) interest on the Plan Payment and the Settlement Payment for the period from Jan. 1, 2014, to the Plan Effective Date. (b) Beginning on Jan. 1, 2014, and continuing until the earlier of Feb. 1, 2014, or the Effective Date, simple interest will accrue on the Plan Payment and the Settlement Payment at the rate of 3.25% per annum. If the Effective Date has not occurred by Jan. 31, 2014, then beginning on Feb. 1, 2014, and continuing until the Effective Date, simple interest will accrue on the Plan Payment and the Settlement Payment at the rate of 5.0% per annum. To the extent the interest paid exceeds the Plan Rate, the supplemental interest is paid by the Debtors in settlement of the Debtors' objection to the proofs of claim and appeal filed by the Bank Lender Group. (c) The Lender Payment will be in full and final satisfaction of all amounts due and owing under the Prepetition Credit Facilities, the Proofs of Claim, the Plan, or otherwise. By fully and finally resolving the Settled Claims, the Debtors, with the support of the Equity Committee, believe the Settlement Agreement is a fair and reasonable settlement, is in the best interest of the Debtors and their estates, and should be approved. The Settlement Agreement clears the path to the Debtors' successful emergence from the Chapter 11 cases. The Debtors' emergence from Chapter 11 will benefit all of the Debtors' stakeholders, many of whom have been waiting over a decade to receive distributions. Bill Rochelle, the bankruptcy columnist for Bloomberg News, reported that the company already defeated four appeals from approval of the reorganization plan dealing with asbestos liability. Emerging from reorganization remained blocked by the fifth and final appeal by secured bank lenders claiming the right to $185 million of interest at the contractual default rate. Banks filing the appeals include Bank of America NA, Barclays Bank Plc, and JPMorgan Chase Bank NA. Grace shares, on Dec. 23, rose more than 4 per cent to $98.68, giving the company a market capitalisation of nearly $7.6 billion, Neil Munshi, writing for The Financial Times, reported. The shares are trading close to their 52-week high of $101.72, the Financial Times added. The Financial Times also noted that Grace spent $12.4 million in legal and financial advisory fees in the first nine months of 2013, compared to $13.2 million during the same period last year. In a statement, John Bader, head of Halcyon Asset Management, the company's largest single creditor, said: "We are extremely pleased to have helped make this final settlement possible, and we recognise that the ability of WR Grace to emerge from bankruptcy benefits everyone with a stake in the company's future," the Financial Times related. Grace stated in a regulatory filing with the U.S. Securities and Exchange Commission that, " The effectiveness of the Joint Plan is subject to the satisfaction or waiver of a number of conditions precedent, including the condition that the order confirming the Joint Plan become final and non-appealable. Upon approval of the Settlement Agreement by the Bankruptcy Court, the Bank Lenders are required to withdraw their appeal, which will result in the satisfaction of such condition. Grace continues to target January 31, 2014 for emergence from Chapter 11." Judge Carey will convene a hearing on Jan. 29, 2014, at 10:00 a.m., to consider approval of the settlement. Objections are due Jan. 13. A full-text copy of the Settlement, dated Dec. 23, 2013, is available at http://bankrupt.com/misc/GRACEplandeal1223.pdf The Debtors are represented by Adam Paul, Esq., and John Donley, P.C., Esq., at Kirkland & Ellis LLP, in Chicago, Illinois; Roger Higgins, Esq., at The Law Offices of Roger Higgins, in Chicago, Illinois; and Laura Davis Jones, Esq., James E. O'Neill, Esq., and Timothy P. Cairns, Esq., at Pachulski Stang Ziehl & Jones, LLP, in Wilmington, Delaware. About W.R. Grace Headquartered in Columbia, Maryland, W.R. Grace & Co. (NYSE:GRA) -- http://www.grace.com/-- supplies catalysts and silica products, especially construction chemicals and building materials, and container products globally. Grace employs approximately 6,500 people in over 40 countries and had 2012 net sales of $3.2 billion. The company and its debtor-affiliates filed for chapter 11 protection on April 2, 2001 (Bankr. D. Del. Case No. 01-01139). David M. Bernick, P.C., Esq., at Kirkland & Ellis, LLP, and Laura Davis Jones, Esq., at Pachulski Stang Ziehl & Jones, LLP, represent the Debtors in their restructuring efforts. The Debtors hired Blackstone Group, L.P., for financial advice. PricewaterhouseCoopers LLP is the Debtors' accountant. Stroock & Stroock & Lavan, LLP, and Duane Morris, LLP, represent the Official Committee of Unsecured Creditors. The Creditors Committee tapped Capstone Corporate Recovery LLC for financial advice. Roger Frankel serves as legal representative for victims of asbestos exposure who may file claims against W.R. Grace. Mr. Frankel, a partner at Orrick Herrington & Sutcliffe LLP, replaces David Austern, who was appointed to that role in 2004. Mr. Frankel has served as legal counsel for Mr. Austern who passed away in May 2013. The FCR is represented by Orrick Herrington & Sutcliffe LLP as counsel; Phillips Goldman & Spence, P.A., as Delaware co-counsel; and Lincoln Partners Advisors LLC as financial adviser. Herrington & Sutcliffe LLP and Phillips Goldman & Spence, PA. Elihu Inselbuch, Esq., at Caplin & Drysdale, Chartered, and Marla R. Eskin, Esq., at Campbell & Levine, LLC, represent the Official Committee of Asbestos Personal Injury Claimants. The Asbestos Committee of Property Damage Claimants tapped Scott Baena, Esq., and Jay M. Sakalo, Esq., at Bilzin Sumberg Baena Price & Axelrod, LLP, to represent it. Thomas Moers Mayer, Esq., at Kramer Levin Naftalis & Frankel, LLP, represents the Official Committee of Equity Security Holders. W.R. Grace obtained confirmation of a plan co-proposed with the Official Committee of Asbestos Personal Injury Claimants, the Official Committee of Equity Security Holders, and the Asbestos Future Claimants Representative. The Chapter 11 plan is built around an April 2008 settlement for all present and future asbestos personal injury claims, and a subsequent settlement for asbestos property damage claims. Implementation of the Plan has been held up by appeals in District Court from various parties, including a group of prepetition bank lenders and the Official Committee of Unsecured Creditors. District Judge Ronald Buckwalter on Jan. 31, 2012, entered an order affirming the bankruptcy court's confirmation of the Plan. Bankruptcy Judge Judith Fitzgerald had approved the Plan on Jan. 31, 2011. The plan can't be implemented because pre-bankruptcy secured bank lenders filed an appeal currently pending in the U.S. Court of Appeals in Philadelphia. Bankruptcy Creditors' Service, Inc., publishes W.R. Grace Bankruptcy News. The newsletter tracks the Chapter 11 proceeding undertaken by W.R. Grace, W.R. Grace Co. - Conn. and their affiliates. (http://bankrupt.com/newsstand/or 215/945-7000). ASBESTOS UPDATE: Metex Mfg. Files Plan with $190MM Fibro Trust -------------------------------------------------------------- Bill Rochelle, the bankruptcy columnist for Bloomberg News, reports that Metex Manufacturing Corp., known as Kentile Floors Inc. during its first bankruptcy reorganization, filed another Chapter 11 plan this week to address asbestos claims arising after the first bankruptcy was completed. According to the report, into the 1980s, Kentile made tile using asbestos. From 1992 to 1998, Kentile's first bankruptcy dealt with claims filed up to that time. That bankruptcy proved insufficient for dealing with later-filed claims. Kentile said its insurance companies paid out $154 million after the first bankruptcy to settle 10,000 claims. Renamed Metex on filing for Chapter 11 protection again in November 2012, the company had 26,000 active or inactive personal injury or wrongful death claims. Before the new bankruptcy, Great Neck, New York-based Metex put together a prepackaged Chapter 11 plan supported by eight insurance companies and several law firms representing thousands of asbestos claimants. The plan didn't work as a prepack because only about 66 percent of asbestos claims, by amount, voted for it, shy of the 75 percent required. In the prepackaged plan that failed, insurance companies would have contributed $165 million to a trust. The company and representatives of current and future asbestos claimants cobbled together a new Chapter 11 plan substantially similar to the one that failed. The major difference is that the new plan is funded with $182.1 million to $189.75 million from nine insurance companies, and it's richer by $15 million to $20 million, according to a court filing. The plan takes advantage of a provision in bankruptcy law allowing the insurance companies to obtain immunity from further liability on their Kentile policies in return for the settlements, which are to be approved along with the plan. There will be a hearing on Feb. 20 in U.S. Bankruptcy Court in Manhattan for approval of the disclosure statement explaining the plan. Voting on the plan is to end May 2, followed by a confirmation hearing on May 22. Liberty Mutual Insurance Co. has been paying most of the claims in recent years, Metex said in a court filing. About Metex Great Neck, New York-based Metex Mfg. Corporation, formerly known as Kentile Floors, Inc., started business in the late 1800's as a manufacturer of cork tile, and thereafter progressed to making composite tile for commercial and residential use. Metex filed for Chapter 11 bankruptcy protection (Bankr. S.D.N.Y. Case No. 12-14554) on Nov. 9, 2012. The petition was signed by Anthony J. Miceli, president. The Debtor estimated its assets and debts at $100 million to $500 million. Judge Burton R. Lifland presides over the case. Paul M. Singer, Esq., and Gregory L. Taddonio, Esq., at Reed Smith LLP, in Pittsburgh, Pa.; and Paul E. Breene, Esq., and Michael J. Venditto, Esq., at Reed Smith LLP, in New York, N.Y., represent the Debtor as counsel. ASBESTOS UPDATE: Bid to Dismiss "Berensmann" Suit Denied -------------------------------------------------------- In an asbestos personal injury action, defendant Georgia-Pacific, LLC, moved for summary judgment dismissing the complaint and all other claims asserted against it on the ground that plaintiff William Berensmann testified that the GP product he may have been exposed to did not contain asbestos. Judge Sherry Klein Heitler of the Supreme Court, New York County, denied the motion, holding that GP has not submitted anything to show exactly when its asbestos-free product was first made available, and specifically whether it was available in Manhattan in 1974 and 1975. Judge Heitler, therefore, ruled that it is questionable whether Mr. Berensmann could have even worked with an asbestos-free GP joint compound product during his exposure period. The case is WILLIAM BERENSMANN and MADELYN BERENSMANN, Plaintiffs, v. 3M COMPANY, et al., Defendants, DOCKET NO. 190472/12, MOTION SEQ. NO. 003 (N.Y. Sup.). A full-text copy of Judge Heitler's Dec. 13, 2013 Decision is available at http://is.gd/EDxLHIfrom Leagle.com. ASBESTOS UPDATE: Nevada Court Dismisses Inmate's Civil Rights Suit ------------------------------------------------------------------ Judge Kent J. Dawson of the United States District Court for the District of Nevada dismissed with leave to file an amended complaint a pro se civil rights action filed by Jose Granados Dominguez, an inmate at the Clark County Detention Center. The Plaintiff filed an action against Clark County, Nevada, and the Las Vegas Metropolitan Police Department, alleging that he was subjected to the use of excessive force and that asbestos was pumped into the air cooling system at the Clark County Detention Center. The case is JOSE GRANADOS DOMINGUEZ, Plaintiff, v. CLARK COUNTY DETENTION CENTER, et al., Defendants, NO. 2:13-CV-01169-KJD-PAL (D. Nev.). A full-text copy of Judge Dawson's Decision dated Dec. 16, 2013, is available at http://is.gd/9yeNekfrom Leagle.com. ASBESTOS UPDATE: Court Allows Discovery in "Amick" Suit ------------------------------------------------------- Magistrate Cheryl A. Eifert of the United States District Court for the Southern District of West Virginia, Charleston Division, granted Defendant Ohio Power Company's discovery requests in the action arising from the asbestos-related death of Barbara Amick. The magistrate judge ruled that the information sought by OPC is relevant and is not privileged. The magistrate judge added that OPC is entitled to know which entities have settled and which have been dismissed without payment, as this information may alter the defense offered by OPC and clarify its rights, if any, to contribution, implied indemnity, or contractual indemnity. The case is BARBARA E. AMICK, and ELDON AMICK, her husband, Plaintiffs, v. OHIO POWER COMPANY, et al., Defendants, CASE NO. 2:13-CV-06593 (S.D. W.Va.). A full-text copy of the memorandum opinion and order dated Dec. 18, 2013, is available at http://is.gd/s1EvSEfrom Leagle.com. ASBESTOS UPDATE: NY Ct. Denies Summary Judgment in "Carlucci" Suit ------------------------------------------------------------------ Plaintiffs Daniel Carlucci and his wife Barbara Carlucci commenced an action to recover damages for personal injuries allegedly caused by Mr. Carlucci's occupational exposure to asbestos. Defendant Union Carbide Corporation moved for summary judgment dismissing the complaint against it on the ground that Mr. Carlucci could not have been exposed to asbestos from a UCC product. Judge Sherry Klein Heitler of the Supreme Court, New York County, denied UCC's motion. Judge Heitler pointed out that without giving credence to Mr. Carlucci's testimony that he is color blind, UCC claimed that the white powdery product identified by Mr. Carlucci could not have been a phenolic molding compound because UCC's phenolic molding compounds were inherently dark colored. Therefore, UCC argued that it is entitled to summary judgment because Mr. Carlucci's description of the product he encountered is incorrect. Judge Heitler, however, found that this argument merely goes to the weight to be afforded to Mr. Carlucci's testimony by the trier of fact, which should not be determined by the court on a summary judgment motion. The case is DANIEL T. CARLUCCI and BARBARA CARLUCCI, Plaintiffs, v. A.W. CHESTERTON CO., INC., et al., Defendants, NO. 190486/11, MOTION SEQ. NO. 011 (N.Y. Sup.). A full-text copy of Judge Heitler's Dec. 13, 2013 decision and order is available at http://is.gd/Cbk46efrom Leagle.com. ASBESTOS UPDATE: Summary Judgment Bid in "Herlihy" Suit Denied -------------------------------------------------------------- In a decision and order dated Dec. 13, 2013, Judge Sherry Klein Heitler of the Supreme Court, New York County, denied defendant A.F. Supply Corporation's motion for summary judgment dismissing the asbestos-related personal injury complaint and all cross- claims asserted against it on the ground that there is no evidence to show that plaintiff Arthur Herlihy was exposed to asbestos from a product distributed by A.F. Supply. According to Judge Heitler, the testimony of three deponents, combined with the fact that the Defendant does not deny that it regularly supplied and distributed asbestos-containing products to Brooklyn Boiler Repair where the Plaintiff worked during the relevant time period, constitute facts and circumstances from which the defendant's liability may be reasonably inferred. Mr. Herlihy testified that AF Supply was one of Brooklyn Boiler's major suppliers, and his two co-workers, Dominic Pane and Alfred Sikorski testified that the asbestos-containing products Mr. Herlihy worked with were purchased from AF Supply. Any perceived inconsistencies in their testimonies goes only to the weight to be accorded thereto by the trier of fact, and does not entitle the defendant to summary judgment, Judge Heitler concluded. The case is ARTHUR HERLIHY and GAIL HERLIHY, Plaintiffs, v. A.F. SUPPLY CORPORATION, et al., Defendant(s), DOCKET NO. 190149/11, MOTION SEQ NO. 006 (N.Y. Sup.). A full-text copy of Judge Heitler's Decision is available at http://is.gd/ICQjaefrom Leagle.com. ASBESTOS UPDATE: Libby Worker's Claim Deemed Time-Barred -------------------------------------------------------- On June 25, 2010, Steve Peterson signed a First Report of Injury and Occupational Disease, alleging lung disease caused by years of exposure to asbestos dust while employed with the "Stimson Lumber Facility" in Libby, Montana. The report reflects a date of injury of "76-02." Mr. Peterson also signed a similar claim on the same day for the same date of injury against "Champion Lumber Facility". Champion denied the claim by letter dated July 6, 2010, from its third-party administrator, Brentwood Services Administrators, Inc. Liberty denied the claim on behalf of Stimson by letter dated July 27, 2010. Liberty issued a second denial letter on September 27, 2012, following an occupational disease (OD) panel evaluation. Judge James Jeremiah Shea of the Workers' Compensation Court of Montana ruled that the Petitioner's claim for OD benefits is time- barred. Judge Shea said that Mr. Peterson knew or should have known that his condition was related to an occupational disease within one year following his diagnosis for asbestos-related disease (ARD). He was diagnosed with ARD in October 2005, and he had one year from that date to file his claim. He filed his claim only in 2010. The case is STEVE PETERSON, Petitioner, v. LIBERTY NW INS. CORP. Respondent/Insurer, WCC NO. 2012-3022 (MTWCC). A full-text copy of Judge Shea's Dec. 31, 2013, findings of fact, conclusions of law, and judgment is available at http://is.gd/VIKaxWfrom Leagle.com. ASBESTOS UPDATE: Bid for Reconsideration in "Lefevre" Suit Denied ----------------------------------------------------------------- In the case ROY J. LEFEVRE, et al., Plaintiffs, v. CBS CORPORATION, et al., Defendants, CASE NO. C13-5058 RBL (W.D. Wash.), Judge Ronald B. Leighton of the United States District Court for the Western District of Washington, Tacoma, denied Defendant Owens-Illinois' and Defendant Crown Cork's motions for reconsideration, holding that there is no evidence that the danger of "take home" asbestos exposure was foreseeable to them by 1958. A full-text copy of Judge Leighton's Dec. 30, 2013 order is available at http://is.gd/KagSLMfrom Leagle.com. ASBESTOS UPDATE: Summary Judgment Bids Granted in "Cabasug" Suit ---------------------------------------------------------------- On June 1, 2012, Plaintiffs Robert and Joyce Cabasug filed an action asserting claims for negligence, strict liability, breach of warranty, loss of consortium, and punitive damages based on a failure to warn theory against 25 Defendants that allegedly manufactured, sold, and/or supplied various products containing asbestos to the United States Navy. As alleged in the Third Amended Complaint, Robert Cabasug was exposed to asbestos contained in the Defendants' products while working as a pipefitter and nuclear engineer at the Pearl Harbor Naval Shipyard from 1973 through 2006, causing him to develop mesothelioma and other asbestos-related diseases. The Plaintiffs have named Defendants Maxim Evaporators, LLC, and Viad Corp., as successors in interest to companies that allegedly included asbestos components in their products to which Mr. Cabasug was exposed -- Maxim's alleged predecessor is Emhart Manufacturing Company, and the Plaintiffs assert that Viad's alleged predecessors include Griscom-Russell Company, and "Baldwin-Lima-Hamilton." Maxim and Viad both argue that the Plaintiffs have failed to establish that Cabasug was exposed to any asbestos components supplied or manufactured by Emhart, GRC, or any BLH entity (there are several BLH-related entities), and in any event Maxim and Viad are not the legal corporate successors to these companies. Applying the causation principles outlined in the court's November 26, 2013 Order, Judge J. Michael Seabright of the U.S. District Court for the Southern District of Georgia, in an order dated Dec. 27, 2013 -- a copy of which is available at http://is.gd/bQpwqtfrom Leagle.com -- found that the Plaintiffs have failed to establish a genuine issue of material fact that Cabasug was exposed to any asbestos manufactured or supplied by any predecessor companies to Maxim or Viad and therefore granted Maxim's and Viad's Motions for Summary Judgment. Separately, the Plaintiffs and Defendant Aurora Pump Company raise the issue of whether a defendant may assert the affirmative defenses of the sophisticated purchaser and/or the sophisticated user under maritime law. These defenses, if recognized in maritime law, would allow the Defendants to argue that they are not liable because the Navy and/or Cabasug was aware of the dangers of asbestos. Judge Seabright, in another order dated Dec. 27 -- a copy of which is available at http://is.gd/JyYfiRfrom Leagle.com -- found that only the sophisticated user defense is cognizable under the facts presented, and therefore granted in part and denied in part the Plaintiffs' Motion for Summary Judgment, and denied Aurora's Motion for Summary Judgment. The case is ROBERT A. CABASUG and JOYCE C. CABASUG, Plaintiffs, v. CRANE COMPANY, et al., Defendants, CIVIL NO. 12-00313 JMS/BMK (S.D. Ga.). ASBESTOS UPDATE: Wis. Appeals Court Flips Ruling in "Viola" Suit ---------------------------------------------------------------- Anthony Viola, individually and as special administrator of the estate of his father, Robert Viola, and Christopher Viola appeal the trial court's grant of summary judgment on the claim asserted against Wisconsin Electric Power Company for violation of the Safe Place statute. Viola sued Wisconsin Electric under the Safe Place statute, alleging that the presence of asbestos in the air during and following routine repairs to Wisconsin Electric's buildings constituted an unsafe condition associated with the premises. Viola also alleged that Wisconsin Electric had actual and/or constructive notice of the condition, but failed to take any steps to remedy it. On appeal, Viola contends that the trial court erred in concluding that the presence of asbestos in Wisconsin Electric's premises as alleged in Viola's amended complaint was not an "unsafe condition," but rather, a negligent "act of operation" barring recovery. A three-judge panel of the Court of Appeals of Wisconsin, District I, in an opinion dated Dec. 27, 2013, agreed with Viola, and therefore reversed and remanded the case for trial. The case is ANTHONY VIOLA, INDIVIDUALLY AND AS SPECIAL ADMINISTRATOR OF THE ESTATE OF ROBERT VIOLA AND CHRISTOPHER VIOLA, INDIVIDUALLY, PLAINTIFF-APPELLANT, v. WISCONSIN ELECTRIC POWER CO., DEFENDANT-RESPONDENT, ALLIED INSULATION SUPPLY CO., INC., FOSTER WHEELER ENERGY CORPORATION, GENERAL ELECTRIC, METROPOLITAN LIFE INSURANCE COMPANY, OAKFABCO, INC., OWENS ILLINOIS, INC., RAPID AMERICAN CORPORATION AND TRANE US, INC., DEFENDANTS, APPEAL NO. 2013AP22 (Wis. App.). A full-text copy of the Court of Appeals' Decision is available at http://is.gd/XnObO5from Leagle.com. ASBESTOS UPDATE: Tenn. Appeals Court Flips Ruling in "Payne" Suit ----------------------------------------------------------------- Winston Payne brought an action against his former employer, CSX Transportation, Inc., under the Federal Employers' Liability Act, alleging that CSX negligently exposed him to asbestos, diesel fumes, and radioactive materials in the workplace causing his injuries. The jury returned a verdict finding (1) that CSX negligently caused Payne's injuries; (2) that CSX violated the Locomotive Inspection Act or safety regulations regarding exposure to asbestos, diesel fumes, and radioactive materials; and (3) that Payne's contributory negligence caused 62% of the harm he suffered. The jury found that "adequate compensation" for Payne's injuries was $8.6 million. After the jury returned its verdict, the trial court, sua sponte, instructed the jury, for the first time, that, under FELA, its finding that CSX violated a statute or regulation enacted for the safety of its employees meant that the Plaintiff would recover 100% of the damages found by the jury. The court sent the jury back for further deliberations. It shortly returned with an amended verdict of "$3.2 million @ 100%." Six months after the court entered judgment on the $3.2 million verdict, it granted CSX's motion for a new trial, citing "instructional and evidentiary errors." The case was then assigned to another trial judge, who thereafter granted CSX's motion for summary judgment as to the entirety of the Plaintiff's complaint. The second judge ruled that the causation testimony of all of plaintiff's expert witnesses was inadmissible. The Court of Appeals of Tennessee, at Knoxville, in an opinion dated Dec. 27, 2013, held that the trial court erred in instructing the jury, sua sponte, on a purely legal issue, i.e., that the jury's finding of negligence per se under FELA precluded apportionment of any fault to the Plaintiff based upon contributory negligence, an instruction given after the jury had returned a verdict that was complete, consistent, and based on the instructions earlier provided to it by the trial court. The Court of Appeals further held that, contrary to the trial court's statements, the court did not make any prejudicial evidentiary rulings in conducting the trial, and that its jury instructions, read as a whole, were clear, correct, and complete. Consequently, the trial court erred in granting a new trial. The Court of Appeals remanded to the trial court. The Court of Appeals directed the first trial judge to review the evidence as thirteenth juror and determine whether the jury verdict in the amount of $8.6 million is against the clear weight of the evidence. If it is not, the Court of Appeals directed the trial judge to enter judgment on that verdict. If, on the other hand, the trial judge finds that the larger verdict is against the clear weight of the evidence, the Court of Appeals directed the court to enter a final judgment on the jury's verdict of $3.2 million. The Court of Appeals stated that the trial court's grant of summary judgment is rendered moot by its judgment. However, in the event the Supreme Court determines that our judgment is in error, the Court of Appeals held that the grant of summary judgment was not appropriate. The case is ANNE PAYNE, v. CSX TRANSPORTATION, INC., NO. E2012- 02392-COA-R3-CV (Tenn. App.). A full-text copy of the Court of Appeal's Decision dated Dec. 27, 2013, is available at http://is.gd/MTDIIYfrom Leagle.com. Richard N. Shapiro, Esq., in Virginia Beach, Virginia; Sidney W. Gilreath, Esq., and Cary L. Bauer, Esq., in Knoxville, Tennessee, for the appellant, Anne Payne. Randall A. Jordan, Esq., Karen Jenkins Young, Esq., and Christopher R. Jordan, Esq., in St. Simons Island, Georgia; Evan M. Tager, Esq., and Carl J. Summers, Esq., in Washington, D.C.; John W. Baker, Jr., Esq., and Emily L. Herman-Thompson, Esq., in Knoxville, Tennessee, for the appellee, CSX Transportation, Inc. ASBESTOS UPDATE: Fibro Victims in Firm Build Case Speak in Court ---------------------------------------------------------------- Victor Patton, writing for Merced Sunstar, reported that several former Merced County high school students who were exposed to asbestos confronted three men, federal prosecutors say are responsible for putting their health at risk. The group spoke in Fresno federal court during a sentencing and restitution hearing in the Firm Build case. Three former executives of Firm Build, Rudy Buendia III, Patrick Bowman and Joseph Cuellar, pleaded no contest in March to federal charges of violating federal asbestos laws. As part of their plea agreements, the defendants are each scheduled to spend about two years in federal prison. Federal prosecutors say the men used the high school students to remove the cancer-causing substance from a renovation project at Castle Commerce Center, called the Automotive Training Center, from September 2005 to March 2006. The Merced County Office of Education had contracted with Firm Build to provide job training to high school students. Prosecutors say Bowman, Buendia and Cuellar cut corners on the renovation project by knowingly using the students to remove asbestos from the 2245 Jetstream Drive building, under the guise of involving them in work experience and job training programs. An investigator with the Environmental Protection Agency testified that about 68 people may have been exposed to asbestos at the Castle site. State and federal laws explicitly limit asbestos removal to personnel who have been adequately trained and properly equipped with special safety gear and clothing. The students at the Automotive Training Center were said to have demolished tiles, pipe insulation and other items containing asbestos with only hammers and other basic tools. All of the former students who spoke in court are now in their mid-20s. Many testified to U.S. District Judge Lawrence J. O'Neill that their street clothes were covered in dust while removing the asbestos materials from the building. Some said the debris from breaking up the material caused a fog- like cloud inside the building. "When we left the building, it looked like we had white hair because there was so much dust in it," said former student Daisy Ambriz. Some of the former students said the dust entered their noses and mouths. Roberto Torres said the building was so dusty, he and his fellow students would need to take breaks, hoping the building would air out. Torres said he now suffers from frequent nose bleeds and chest pains. He wonders whether he'll live long enough to raise children and see them grow into adulthood. "I am concerned for my health and safety," Torres told Judge O'Neill. "If I don't make it to see kids, at least let justice happen to us, as students." Former student Vanessa Farias said she has thought the Firm Build program would be a good opportunity to get work experience. "I wasn't told the insulation contained asbestos. All I was told was it would make me itch for a couple of days," Farias said. "It's really scary to think I could develop cancer and have all these problems." Others worried that they may have exposed their family members to asbestos upon coming home. "I could have contaminated my family," said Daniel Avalos. He and many other former students believe the three men deserve time in prison for their crimes. "They knew what they were doing, and I strongly believe these men should not be let off at all," Avalos said. The courtroom was packed with supporters on both sides of the aisle. Several supporters of the defendants also spoke during the hearing, citing them as men who play an active role in the community. Kevin Cuellar, son of defendant Joesph Cuellar, described his father as someone who taught him to be "honest and truthful." Kevin Cuellar said he started his own company, thanks to the positive influence of his father. "I couldn't ask for a better father," he said. In August, Judge O'Neill told prosecutors he thought the prison sentences in the plea agreements were excessive. He recommended attorneys to possibly negotiate a different deal. But federal prosecutors maintained the plea agreements were appropriate, given the statements by the victims about how they've been affected by the asbestos exposure and compared to similar asbestos cases nationwide, according to court documents. Despite the plea agreements, Buendia, Bowman and Cuellar probably won't be formally sentenced for nearly two months. Buendia's attorney Jeremy Kroger indicated in court that his client has requested an independent review of the plea agreement. Kroger said Buendia may also file a motion to withdraw his plea deal. O'Neill set a Jan. 6 court date to discuss that issue. If Buendia doesn't file a motion to withdraw his plea, O'Neill said the three men will be sentenced Feb. 3. In addition to the federal case, the trio pleaded no contest in Merced County Superior Court in May to state felony charges of treating, handling or disposing of asbestos in a manner that caused an unreasonable risk of serious injury to students, with reckless disregard for their safety. Under the terms of their plea deals, the time they spend in federal prison will cover the convictions in both state and federal court. Restitution amounts are still being discussed in the case, although experts for the prosecution have stated medical monitoring costs for the victims over the next 50 years could be millions of dollars. When the incident occurred, Bowman was Firm Build's board president and coordinator of the Workplace Learning Academy, which was created at the Valley Community School to teach trade skills to at-risk students. Buendia was Firm Build's project manager, who scouted and determined the nonprofit's projects. Cuellar was an administrative manager who had the contractor's license that Firm Build used to find grant funding, procure contracts and obtain permits for projects, according to investigators. Several of the former students have filed a civil case in Merced County Superior Court that seeks undisclosed damages from Buendia, Bowman and Cuellar. The case, which seeks damages due to possible injuries and emotional suffering, also names the Merced County Office of Education as a defendant, in addition to Lee Andersen, Merced County superintendent of schools at the time. The Merced County Office of Education signed a lease for the Jetstream Drive building in June 2005, with the intent to use vocational students to remodel it as an automotive teaching center. The lease was signed by Andersen and Jerry O'Banion, then chairman of the Board of Supervisors. The documents disclosed asbestos, lead-based paint, black mold and groundwater contamination at the site. The asbestos was referenced in the lease and also in a sublease agreement. ASBESTOS UPDATE: Schools Containing Fibro Required to Place Signs ----------------------------------------------------------------- Farrah Tomazin, writing for The Age, reported that schools in Victoria, Australia, containing asbestos will be required to place warning signs at their front gate after the Education Department was taken to court and ordered to lift its game following a series of safety breaches. WorkSafe documents reveal that legal action was recently taken against the department for putting several schools at risk -- despite the government previously insisting it had a "comprehensive system" to manage asbestos and keep students safe. Under a binding agreement with the workplace authority, schools that have asbestos will now be required to erect warning signs on gates and buildings; hundreds of audits will be conducted over the next 18 months; and principals will be properly trained in asbestos safety procedures. The breaches were recorded at three schools: Newlands Primary School, Clayton South Primary School, and Timboon P-12 College, all of which were found to have insufficient labelling or auditing practices. Timboon, which is located in Transport Minister Terry Mulder electorate, was forced to shut down temporarily in July, when a WorkSafe inspector issued two prohibition notices after finding asbestos and peeling lead paint on site. The department has since acknowledged wrongdoing and signed an "enforceable undertaking" with the state's workplace authority promising to improve. But the revelations are an embarrassing blow for the government, which has repeatedly insisted that "all schools are safe" and that it already had appropriate measures to deal with asbestos. Alarm bells sounded in June, when previously unreleased audits revealed that two-thirds of Victoria's 1531 public schools contained asbestos, and that many faced "substantial risk" unless the material was removed, sealed or labelled. At the time, Education Minister Martin Dixon told Fairfax Media: "We have a comprehensive system in place that includes expert training, detailed asbestos management plans and a hotline that schools can call to get an immediate site inspection and, where appropriate, have the asbestos removed." Former Labor policy adviser Andrew Herington, who obtained the audit documents under freedom-of-information laws, welcomed the latest improvements, but said the department should have acted sooner, before being taken to court. Opposition education spokesman James Merlino agreed, accusing the government of "direct and disgraceful cuts" to the education budget, which he claimed had delayed the removal of asbestos in schools. However, Mr. Dixon hit back, warning Labor not to "cynically politicise how seriously the government and [the department] take the safety of students and staff". As part of its agreement with WorkSafe, the department must now establish a new taskforce to monitor how schools are managing asbestos. About 400 audits must be completed by June 30 next year, and 180 must take place in each subsequent year so the government can track which schools contain the potentially hazardous material. Following each audit, schools that carry asbestos will be required to have a sign at the front gate directing visitors to reception, a sign at reception alerting visitors to the school's asbestos register and management plan, and a sign on the door of any building that contains asbestos. Asbestos was popularly used in buildings between the 1950s and '70s, before the health risks were widely known. While it is relatively safe when undisturbed, fibres that become airborne can lead to diseases such as lung cancer and mesothelioma. Australian Education Union spokeswoman Carolyn Clancy said a crackdown was long overdue. "It's not just about auditing, it's also about keeping a central register to show where the asbestos is," she said. Education Department spokesman Simon Craig said in most cases, schools managed their asbestos appropriately. "However, when risks emerge at schools, or if schools require additional support, we intervene immediately," he said. ASBESTOS UPDATE: "Dust All Over" Mudgee Mayor's Fibro Clean-Up -------------------------------------------------------------- Tim Barlass, writing for The Sydney Morning Herald, reported that concerns have been raised about the demolition of two properties owned by the mayor of Mudgee, in New South Wales, Australia, that allegedly left the site contaminated with asbestos. After the demolition, Des Kennedy, the mayor of the Mid-Western Regional Council, sold the land in March 2012 to community housing charity Housing Plus. When the charity sought development approval to build 20 affordable housing units, he joined those voting to grant approval. But when the charity asked for a grant of $150,000, council records show the mayor declared an interest as the former owner of the land and absented himself from the vote. The request for the grant towards the development was refused. When it emerged that contamination on the site was extensive, the council allowed the toxic waste to be buried at an authorised council tip at ratepayers' expense, waiving a $103,688 charge. Housing Plus chief executive Karen Andrew said: "What I can confirm is that we purchased the land from the mayor as a private individual. The site was heavily contaminated with asbestos and we asked the council to waive the tipping fee, which they did." Documents provided to the Environmental Protection Agency concerning the demolition process include a petition from seven neighbours who have claimed it was done without asbestos safety equipment, waste was buried in channels and they were concerned they may in the future contract asbestosis. Terry Tattersall, who lives two doors away from the site, told Fairfax Media: "They never told us the buildings were going to be pulled down and they didn't have any overalls on. There was dust all over the place." The council officers' report in February recommending approval of the development said some asbestos sheeting was observed in a preliminary contamination investigation by the charity and recommended as a condition of approval that the top 50 millimetres of the site be removed to a licensed waste facility. In a letter to the council's general manager, Warwick Bennett, in July, Ms Andrew wrote: "Housing Plus purchased the site in 2012, unaware of the contamination, and is now in the unfortunate situation of being left to remediate the site." She addressed the council that month and said they had paid $885,000 for the land, which was sold as "usable development land but that was not the case". She said contamination that necessitated removal of 700 tonnes of soil was not declared in the contract and she was trying to obtain details relating to the demolition and burial of materials. WorkCover had also been informed, she said. The following month the council, having previously refused the charity's application for a $150,000 grant because it had completed its 2013-14 budget and "does not have the funds", agreed to a $100,000 grant. Councillor Percy Thompson, himself a former mayor, said: "The council has waived the tipping fees, which should have been paid by the previous owner. The mayor . . . should have to pay for it." Cr Thompson put forward a motion calling for the council to recover the tipping fee of $103,688 from the mayor but it was not accepted on the council agenda and was considered "unlawful" by the council's general manager. Emails to Cr Kennedy went unanswered, as did requests to the council media contact for a response. The EPA said any issues associated with misconduct should be directed to authorities such as the NSW Ombudsman or the Division of Local Government, Department of Premier and Cabinet. ASBESTOS UPDATE: India Urged to Ban Import and Usage of Fibro ------------------------------------------------------------- Brayton Purcell LLP announced on Dec. 21, 2013, that a letter has been sent to three of India's government officials, urging them to ban the import and usage of asbestos in their country. The letter is addressed to India's ministers of Health & Family Welfare, Labour & Employment, and Forests & Environment. It is signed by 100 labor and health organizations and more than 200 scientists, representing 36 countries. The letter states that India has increased its asbestos importation by 186 percent between 2006 and 2012. Furthermore, India has been targeted by the asbestos industry as part of a campaign aimed at Asian countries, which constitute 70 percent of asbestos market buyers. As part of the effort to build India's consumption and use of asbestos, the International Chrysotile Association is holding a conference in New Delhi, presenting asbestos as a safe product. However, all types of asbestos have been shown to be the cause of several illnesses, including asbestosis, mesothelioma, lung cancer, and other cancers. Hundreds of cases have already been reported in India, and that number is expected to climb. While the United States no longer uses asbestos in the majority of its products, many thousands of people still suffer each year from the long-latency effects of exposure, and many families have lost loved ones from asbestos-related diseases. About Brayton Purcell LLP With offices in California, Oregon, and Utah, counsel in Washington, and co-counsel in Oklahoma, Brayton Purcell LLP represents workers and their families all throughout the U.S. The law firm focuses its practice on mesothelioma and other asbestos- related litigation, other toxic-torts, defective medical devices, catastrophic accident, medical malpractice, estate planning, , any type of personal injury, elder law and elder abuse, payday loan litigation, medical drug injuries, mortuary malpractice, beryllium exposure, and real estate law. Clients are treated with compassion and understanding and receive quality legal representation. Brayton Purcell LLP offers an in- house investigation team, over 220 experienced staff members and 50 qualified and knowledgeable attorneys. The law firm has successfully won numerous multimillion-dollar settlements and verdicts on behalf of its clients. When you have been injured through the negligent acts of a company or an individual, you have the legal right to pursue appropriate compensation. Contact Brayton Purcell LLP at 415-895-2669 or 800- 598-0314 to set up a free consultation with an attorney, or visit www.braytonlaw.com for more information. ASBESTOS UPDATE: Lower Exposure No Protection Against Mesothelioma ------------------------------------------------------------------ Surviving Mesothelioma is reporting on new research that suggests that industrial workers at the lowest levels of the asbestos exposure spectrum may still be at risk for deadly mesothelioma, lung cancer, and laryngeal cancer. The study, published recently in the Journal of Occupational and Environmental Medicine, used data from the long-running Netherlands Cohort Study of 58,279 Norwegian men between 55 and 69 years old. To determine the association between asbestos risk and cancer, researchers compared each man's job history to asbestos- exposure matrices of various occupations. They then compared likely levels of asbestos exposure to the incidence of mesothelioma and several other cancers. After 17.3 years of follow-up, there were 132 cases of mesothelioma, 2,324 cases of lung cancer, and 166 cases of laryngeal cancer. Although it is very rare, mesothelioma is considered the most deadly of the asbestos-linked cancers because of its fast progression and resistance to standard treatments. Of the three types of cancer studied, only two subtypes -- lung adenocarcinoma (a form of non-small cell lung cancer) and glottis cancer (a subtype of laryngeal cancer affecting the vocal chords) -- were associated with higher levels of prolonged asbestos exposure. For mesothelioma and all other categories of lung and laryngeal cancer, even lower levels of asbestos exposure were enough to trigger disease. "Asbestos levels encountered at the lower end of the exposure distribution may be associated with an increased risk of pleural mesothelioma, lung cancer, and laryngeal cancer," the researchers conclude. The U.S. EPA has stated that all levels of asbestos exposure are potentially risky. They have strict guidelines governing the handling and disposal of asbestos and recommend that do-it- yourself home renovators hire asbestos abatement professionals in order to minimize their mesothelioma risk. The original study appears in the Journal of Occupational and Environmental Medicine, the journal of the American College of Occupational and Environmental Medicine. (Offermans, NS, et al, "Occupational Asbestos Exposure and Risk of Pleural Mesothelioma, Lung Cancer, and Laryngeal Cancer in the Prospective Netherlands Cohort Study", December 17, 2013, Journal of Occupational and Environmental Medicine, Epub ahead of print. http://www.ncbi.nlm.nih.gov/pubmed/24351898) For nearly ten years, Surviving Mesothelioma has brought readers the most important and ground-breaking news on the causes, diagnosis and treatment of mesothelioma. All Surviving Mesothelioma news is gathered and reported directly from the peer- reviewed medical literature. Written for patients and their loved ones, Surviving Mesothelioma news helps families make more informed decisions. ASBESTOS UPDATE: Group Sees Great Potential in Hotel Renovation --------------------------------------------------------------- Martin Kidston, writing for The Missoulian, reported that Hotel Deer Lodge, in Montana, sat sealed on the corner of Main Street and Missouri Avenue for nearly 40 years, collecting dust and accommodating pigeons. The inside crumbled with neglect, water penetrated the roof and the Hotel Deer Lodge held it secrets close. "It's a time capsule of the 1970s," said Tim Roberts, standing amid the hotel's crumbling plaster and aging woodwork. "This is a pretty touching place. It's a nice piece of history." With a deep chill hanging over the Deer Lodge Valley, a generator hummed outside the four-level hotel, a few cords snaked under a forgotten door hidden off a seemingly forgotten alley. To an outsider unable to see past the hotel's boarded-up windows, the generator's buzz marked the only sign of life within, where crews with Abatement Contractors of Montana worked to assess the building's potential hazards ahead of plans for restoration. "We're doing a comprehensive asbestos and lead inspection to figure out where asbestos might be present, where it's located, and what condition it's in," said Roberts. "We'll see what needs to be removed or encapsulated to make it safe during construction and reoccupation." While Roberts wouldn't share the crew's early findings, he said the Hotel Deer Lodge remains structurally sound, even if its appearance indicates otherwise. The results of the assessment - funded by a Brownfields grant through the Environmental Protection Agency - are expected in six to eight weeks. "Given the age and what the building has gone through, it's in pretty remarkable condition," said Roberts. "Visually, it's kind of a wreck right now, but you'd expect that with a place that's been locked up for nearly 40 years." Roberts and his crew are subcontracted by Weston Solutions of Lakewood, Colo. Their work marks the latest chapter in the hotel's 102-year history, which saw it rise to prominence along the Northern Pacific and Milwaukee Road rail lines before falling into disrepair. *** The results of the assessment will dictate what happens next to the old hotel. Until then, the property might be compared to an elephant in the room, its massive presence dominating one of Deer Lodge's most prominent corners. "I used to play in there when I was this high," said Scott Malcolm, whose grandfather Andrew Malcolm bought the hotel in 1939. "I'd run up and down the halls in my diaper and ride the elevator." Malcolm, who still keeps a brass key fob from the old hotel, remembers the glory days and how a local resident once rode his horse through Wally's Bar into the hotel lobby before the sheriff ran him off. Malcolm's father kept an office on the hotel's main floor, where he worked as an accountant and helped on the desk. The family owned the building until 1984 or 1985 -- Malcolm isn't sure which. Records suggest the hotel was empty long before that. "After the Milwaukee Railroad shut down, we weren't getting any customers here," said Malcolm. "I think it's fantastic they're trying to do this. I hope they restore it and get it going again." There may be growing support to see that happen, as the structure's full potential becomes clearer to those who have passed the building for nearly 40 years, sometimes forgetting it was even there. If Deer Lodge wants to reinvent itself and jump-start is struggling economy, supporters of the project believe, it must preserve its history and return the town's once prominent hotel to public use, just as it did with the Rialto Theater after a fire razed that historic property in 2006. No one believes that more than Sherrill Kraakmo, executive director of the Deer Lodge Development Group, who said the hotel might be one of the first -- if not the first -- steel structures built in Montana. Once a long shot for rejuvenation, Kraakmo said, Deer Lodge is awash with fresh enthusiasm. While the naysayers are still present, she said a new sense of optimism has filled the city's streets, and the hotel plays prominently in the picture. "They're seeing the possibilities -- the potential for Deer Lodge," Kraakmo said. "I think that's critical if we're going to move forward and accomplish our goals." Getting to this point has been a long time coming -- and a lifelong vision for Kraakmo. As a girl, she saw the potential for Deer Lodge, and she dreamed of revitalizing its downtown. Two years ago, Kraakmo left her job selling real estate in Seattle to join family in the Deer Lodge Valley. She also came to help the community breathe new life into its economy, focusing in part on its historic charm. "Deer lodge has been on my radar since I was 15 -- that's 33 years," she said. "We moved to Deer Lodge to surprise my grandparents for Christmas. I had visions of revitalization in my head." *** With the blessing of Mayor Mary Ann Fraley, the Deer Lodge Development Group formed behind Kraakmo and five board members in June 2012. It set out to revitalize the community, launch a buy- local campaign, and promote local history and tourism. But two short months after forming, the owners of the Hotel Deer Lodge approached the group with an offer to sell the structure. The owners had held the building for nearly 20 years, and each day it sat empty, falling further into disrepair. "Our concern was letting the building go to a different owner, who might buy it with good intentions but let it sit there for another 20 years," Kraakmo said. "The hotel is such a prominent part of Main Street. It's too important to let it go, so we decided to buy it." The development group had hoped to tackle some smaller goals first, but the hotel's $45,000 asking price was reasonable, even if the timing was poor. The group set out to raise the funds but fell short of its goal, bringing in just $12,000. Yet luck was on their side. "We had someone here in town who believed in the project and they became an anonymous benefactor who provided us with a low-interest loan," Kraakmo said. "We closed on the property in April." With local residents looking for progress, Kraakmo admits the upstart group has something to prove. To maintain forward momentum, it has taken small steps to patch the hotel's roof and enhance its curbside appeal. "We painted the main floor storefronts to give it a facelift," Kraakmo said. "The Montana State Prison fire crew came out and did the painting for us. They're eager to help us do things with the hotel, and they've been a pleasure to work with." Fresh black and green paint warm the building's facade while a cowboy mural boarded over the front windows depicts the likes of Johnny Grant and Granville Stuart -- both Deer Lodge Valley pioneers. Yet the needs of the hotel extend beyond patches and paint, and they could ring in as high as $5.4 million. The group has a steep hill to climb, but Kraakmo said it's making progress with the help of the EPA and its Brownfields assessment grant. "They work with community nonprofits to identify and put together a cleanup plan for these vacant properties that have great potential, but come with development issues," Kraakmo said. "It's a huge savings for us, and once we get the report back, we can develop a plan for our next step." That will include working with an architect on a feasibility study to explore the hotel's future possibilities. One year from now, Deer Lodge Development Group will apply for an EPA cleanup grant to help cover the cost of abatement, if the current assessment reveals that need. "It's a long process, but it has to be done methodically and in the right order, so it can keep moving forward," Kraakmo said. ASBESTOS UPDATE: Action Needed as Firefighter Cancer Rates Rise --------------------------------------------------------------- Fire Engineering reported that an analysis of the health records of nearly 30,000 firefighters in three major American cities reaffirmed the conclusions of numerous smaller studies -- professional firefighters have higher incidences of many cancers than the general population, reports seacoastonline.com At this point the evidence seems incontrovertible. "Compared with the U.S. population, we found small to moderate increases in risk for several cancer sites and for all cancers combined, stemming mostly from excess malignancies of the respiratory, digestive and urinary systems in otherwise healthy individuals," reports the Center for Disease Control's National Institute for Occupational Safety and Health, in a study released in October. "Our findings are consistent with previous studies and strengthen evidence of a relation between firefighters' occupational exposure and cancer." The study also found a strong link between firefighter exposure to asbestos and malignant mesothelioma. "Given that asbestos is the only known causal agent for malignant mesothelioma, and firefighter exposures are probable, the excess is likely to be a causal association." "Since we accept the scientific findings linking firefighting to increased cancer risk, and since we highly value the service firefighters provide our communities, we accept that society has a responsibility to help firefighters mitigate the risk and, when cancer is diagnosed, to help firefighters and their families deal with it in the best way possible. "Mitigation, we expect, will prove less complicated than remediation." ASBESTOS UPDATE: Appeals Court Upholds Fibro Convictions -------------------------------------------------------- Lucas L. Johnson II, writing for The Associated Press, reported that a federal appeals court upheld the convictions of two men found guilty of violating federal environmental laws during the demolition of a Chattanooga textile mill that contained large amounts of asbestos. James Mathis and Donald Fillers were convicted in 2012 of conspiring to violate the Clean Air Act in demolishing a textile mill without properly removing asbestos. Prosecutors said the demolition allowed asbestos, which can cause cancer and other fatal diseases, to become airborne. Fillers was given a four-year prison sentence and fined $20,000, while Mathis was sentenced to 18 months in prison. In challenging their convictions, both men claimed there was insufficient evidence in their case. But the U.S. Court of Appeals for the Sixth Circuit ruled that there was plenty of sufficient evidence to convict the men, and affirmed a district court's ruling. Particularly in the case of Fillers, the court said "ample evidence exists . . . that Fillers knowingly acted with others to unlawfully remove asbestos from the site." During the three-week trial, witnesses testified that asbestos littered the demolition site. An employee of a nearby daycare facility testified that the air in the area was so contaminated that children at the daycare were unable to play outside, according to court documents. Fillers' violations include failure to wet the material containing asbestos during removal and failure to containerize and timely dispose of the material. Owners and operators of demolition activities must give a notice - - including a description of the location and amount of asbestos - - to the Environmental Protection Agency 10 days before demolition. Prosecutors said Mathis acted fraudulently by agreeing with Fillers to file a false 10-day notice, which vastly understated the amount of asbestos at the site. "The jury . . . had ample evidence to conclude that Mathis knowingly violated the removal requirement," the appeals court said. Mathis' attorney did not immediately return a call to The Associated Press. However, Fillers' attorney, Leslie Cory, said she's disappointed with the ruling and planned to discuss options with her client. "Mr. Fillers has several options," said Cory, who declined to elaborate. "I'm going to go over them with him and he'll make the final decision of what he wants to do next." David Wood, another defendant in the case, was found guilty on similar charges and given a 20-month prison sentence. Fillers' company, Watkins Street Project LLC, also was found guilty and ordered to pay a $30,000 fine. ASBESTOS UPDATE: Deadly Dust Removed from Towneley Hall ------------------------------------------------------- Lancashire Telegraph reported that asbestos is to be removed from Towneley Hall while it is closed to the public in January 2014. A survey of the historic hall identified small amounts of asbestos left from previous removals. That will now be cleared while the hall is closed in January, with improvements being made to the National History Gallery. Mick Cartledge, director of community services at Burnley Council, said: "A routine management survey at Towneley ahead of the new developments on the Natural History Gallery identified some residue from previous asbestos removals. "This is in the non-public areas of the Hall, namely the cellars and boiler room. This will be removed in the form of an environmental clean. "This clean will be carried at the same time as the planned closure of the Hall for the major revamp the Hall's National History Gallery. The clean will be complete for the Hall reopening to the public on February 1." During January, Towneley staff will be working hard to install a new Natural History gallery and display, and to create a new exhibition gallery. Arts Council funding as part of the Pennine Lancashire Museum partnership, will see new family friendly displays and activity areas installed. Visitors to the hall from February will also be able to view new interpretation panels and displays. Coun John Harbour, Burnley Council's executive member for leisure and culture, said: "The new year is going to see some great changes made to Towneley Hall." ASBESTOS UPDATE: Fibro Victims Ask Yale to Revoke Honorary Degree ----------------------------------------------------------------- Diane Orson, writing for WNPR News, reported that an Italian organization representing victims of asbestos exposure has asked Yale University to rescind an honorary degree awarded to the owner of the company they once worked for. In the mid-1970s, Swiss billionaire Stefan Schmidheiny took over his family's business. The Eternit company had plants around the world that produced asbestos cement products. The largest was in Casale Monferrato, Italy. Connecticut lawyer Christopher Meisenkothen represents shipyard workers and boiler makers who worked with asbestos here in the U.S., and later developed diseases like asbestosis, lung cancer, and mesothelioma. He is handling the Italian request to Yale, pro bono. Meisenkothen described notes from an Eternit company meeting in the 1970s. "Clearly," he said, "they were acknowledging in 1976 that the workers were at risk. The plant continued to use asbestos for many years after that. They could have given the workers respiratory protection, [or] installed exhaust fans. And the worker testimony from workers at the time consistently indicates that there were no serious precautions taken in the plant." Two years later, Schmidheiny began to dismantle the company's asbestos processing concern. He went on to use his wealth to support eco-friendly sustainable development in other parts of the world. In 2012, Schmidheiny was tried in absentia in Italy. He was found guilty of causing the deaths of thousands of people in Casale Monferrato, and has been sentenced to 18 years in prison. Victims and their families said Yale should reconsider whether he still deserves an honorary degree. Thomas Pogge, a professor in the philosophy department at Yale University, said the accusations deserve careful inquiry. "This is very important new information," he said, "that I think, at the very least, should be looked at very carefully by the authorities at Yale. Yale has a very distinguished record, actually, in asbestos research. And we have the requisite expertise to convene an excellent faculty committee that could look into this case in more depth." Yale authorities declined WNPR's request for comment, but in a statement, said the 1996 honorary degree was based on Schmidheiny's advocacy for sustainable economic development. Yale has never revoked an honorary degree. ASBESTOS UPDATE: Workers Exposed to Deadly Dust for Seven Years --------------------------------------------------------------- Safety Signs Supplies reported that a health board has been fined after multiple workers were exposed to asbestos over a seven-year period, despite being warned on three occasions that the area was "high risk". The asbestos was located in Southern General Hospital in Glasgow. Three surveys determined that there were high levels of asbestos in the ceiling of a plant and switch room that required "removal and environmental cleaning". However, Greater Glasgow Health Board had taken no such action over seven years. Many workers had become exposed to the asbestos, as without warning signs they were unaware of the material. Greater Glasgow Health Board pleaded guilty to one breach of Regulation 4(10)(b) of the Control of Asbestos Regulations 2006, and was fined GBP10,000 as a result. Aileen Jardine, an inspector for the Health and Safety Executive, said: "It is important that exposure to asbestos fibres is kept to an absolute minimum. Glasgow Health Board failed in its duty to properly manage the risks of asbestos in its premises." ASBESTOS UPDATE: U.K. Revises Guidance on Managing Fibro -------------------------------------------------------- The Health & Safety Executive in the United Kingdom has revised its guidance for helping businesses understand how to work safely with asbestos. The Approved Codes of Practice (ACOPs) L127 (The management of asbestos in non-domestic premises) and L143 (Work with materials containing asbestos) have been consolidated into one single revised ACOP -- L143 Managing and working with asbestos. L143 has been revised to make it easier for businesses and employers to understand and meet their legal obligations. It also reflects the changes introduced in The Control of Asbestos Regulations 2012 (CAR 2012) on the notification of non-licensed work with asbestos, and consequent arrangements for employee medical examinations and record keeping. Legal responsibilities to protect workers' health and safety are not altered by any changes to ACOPs. K�ren Clayton, Director of HSE's Long Latency Health Risks Division, said: "The two ACOPs have been updated and brought together to help employers find the information they need quickly and easily and understand how to protect their workers from dangers of working with asbestos. The revised ACOP also provides better clarity on identifying dutyholders for non-domestic premises and the things they must do to comply with the duty to manage' asbestos." The revised ACOP is available on the HSE website at: www.hse.gov.uk/pubns/books/l143.htm ASBESTOS UPDATE: Scott Depot Couple Names 55 Defendants in Suit --------------------------------------------------------------- Kyla Asbury, writing for The West Virginia Record, reported that a couple in Scott Depot, West Virginia, are suing 55 companies they claim are responsible for an asbestos-related lung injury diagnosis. James L. Prince was diagnosed with lung cancer on Nov. 10, 2011, according to a complaint filed Dec. 3 in Kanawha Circuit Court. Prince claims he was exposed to asbestos and/or asbestos- containing products during his employment as a carpenter from 1947 until 1975. The defendants are being sued based on theories of negligence, contaminated buildings, breach of expressed/implied warranty, strict liability, intentional tort, conspiracy, misrepresentations and post-sale duty to warn, according to the suit. Prince and his wife, Julia Fay Prince, are seeking a jury trial to resolve all issues involved. They are being represented by John H. Skaggs of the Calwell Practice LC and Victoria Antion of Motley Rice LLC. The case has been assigned to a visiting judge. A.W. Chesterton Company; Air & Liquid Systems Corporation; American Electric Power Company; American Electric Power Service Corporation; Appalachian Power Company; Aristech Chemical Corporation; Brand Insulations; Certainteed Corporation; Cleaver- Brooks; and Copes-Vulcan are some of the 55 defendants named in the suit. Kanawha Circuit Court case number: 13-C-2242 ASBESTOS UPDATE: Residents Raise Concern Over Dumped Fibro ---------------------------------------------------------- Banbury Guardian reported that residents on The Fairway in Banbury, in Oxon, United Kingdom, have expressed their concern over what they claim is a pile of asbestos left discarded behind garages where children often play. A resident who did not wish to be named contacted the Banbury Guardian expressing his frustration that the material which can release deadly fibres when disturbed, has not been cleared from the garages owned by the Sanctuary Housing group. He said: "They haven't cleaned it up and they're doing absolutely nothing about it." "It's right in the middle of a housing estate and people just dump stuff. There are sheets of asbestos about two feet high and they are broken up and kids have spread them all over the place. It's right there in the open for the kids to get to. We all know it's deadly." Ward district councillor Sean Woodcock said he is appalled no action has been taken to remove the dangerous material. He said: "This particular area has been a target for people's complaints for a long time. I've asked the housing association to remove it. The asbestos has been there for two or three months. We all know the risks it can cause ." Martin Elsmore, owner of The Fairway Fish Bar, added: "An electricity company was doing work up here recently and they told me they thought it was asbestos and put yellow tape around it. The kids go round there and start treading on it so it obviously is a hazard." Sanctuary spokesman Amy Weiser said an assessment has been done to determine the material was asbestos and it was due to be removed this week. She said: "The site is subject to frequent fly tipping, and Sanctuary needs to arrange for rubbish to be removed on a regular basis. Most recently asbestos was tipped on the site and we are arranging for specialists to safely remove the material." ASBESTOS UPDATE: Lincoln County to Take Over EPA's ERS Program -------------------------------------------------------------- The Western News reported that Lincoln County, Montana, was to assume responsibility beginning Jan. 1 for the Environmental Resource Specialists program that the U.S. Environmental Protection Agency initiated in 2006 to support local property owners with management of Libby amphibole asbestos before and after removal activities. These services will be provided in addition to others that the county took over last year when it launched the Asbestos Resource Program. The Asbestos Resource Program is a public-health program that was established last year with the mission of reducing exposure to asbestos that is found within the Superfund site and the surrounding areas of Lincoln County. A key goal is to minimize burden on the community members themselves. The program was developed under the guidance of the City-County Board of Health for Lincoln County and is currently funded through a cooperative agreement/grant from the EPA. Starting Jan. 1, property owners who are planning remodeling, demolition or excavation activities are advised to call the Asbestos Resource Program Hotline at 291-5335. The agency will assist home and business owners with a plan to take care of known sources of Libby amphibole asbestos. The office is in the County Annex. The Asbestos Resource Program may recommend removal activities to be completed by the EPA and serve as a liaison during those activities. Property owners are also advised to contact the hotline if they encounter vermiculite once they have begun remodeling, demolition or excavation activities. This is because vermiculite may be an indicator of Libby amphibole asbestos. ASBESTOS UPDATE: Teacher's Diagnosis Highlights Risk in Schools --------------------------------------------------------------- Surviving Mesothelioma reported that a recent mesothelioma diagnosis in the United Kingdom once again dramatically highlights the fact that even a small amount of asbestos can be deadly. Sixty-three-year-old school teacher Marion Potts of Brockenhurst, in England, died of mesothelioma in a Southampton hospital in June. According to an article in The Mirror, the Coroner recorded a verdict of "death from an industrial disease" after hearing evidence last week that Potts actually saw asbestos dust being released when she pinned work on the classroom walls. Most recently, Potts was head of the English department at Romsey School in Hampshire until her retirement two years ago. Mesothelioma is a growing threat among school teachers, administrators, maintenance workers, and even students in British schools. A government report released last year indicated that 75% of the country's schools - many of them built when asbestos use was at its peak in the 1950s and 60s - contain the potentially deadly material. Before the link between asbestos and mesothelioma was well known, asbestos was a popular component in building materials, including floor and ceiling tiles and insulation in walls and ceilings. The asbestos contained in the walls of schools and other buildings is not considered a threat when it is intact and enclosed behind walls. But as school buildings age and brittle asbestos is inadvertently exposed, many are concerned that mesothelioma could become an even greater risk for lifetime teachers like Potts. In the UK, as in other countries, mesothelioma is most common among industrial workers, particularly those who worked in construction, shipbuilding, and manufacturing. Area news organizations say the Potts case is thought to be the first case of mesothelioma in a teacher in Southwest Hampshire. Officials from both of the schools where she worked most recently say their buildings are safe and do not present a mesothelioma risk. The UK has the world's highest per capita rate of mesothelioma. ASBESTOS UPDATE: Jury Awards $27.5MM to English Professor --------------------------------------------------------- HarrisMartin Publishing reported that an Ohio jury has awarded an English professor and his wife more than $27.5 million in a take- home exposure case, assessing 60 percent liability to the successor of National Friction Products Corp., sources told HarrisMartin. The Ohio Court of Commons Pleas for Cuyahoga County jury reached the verdict on Dec. 18 after four-and-a-half hours of deliberations. Judge Harry A. Hanna presided over the 11-day trial. The plaintiffs contended that John Panza Jr.'s take-home exposure occurred when his father - an employee of the brake company Eaton Airflex - took home asbestos fibers on his work clothing. ASBESTOS UPDATE: Naturally Occuring Deadly Fibers Found in Nevada ----------------------------------------------------------------- Henry Brean, writing for The Las Vegas Review-Journal, reported that removing asbestos from an old building can be hazardous and expensive. So what happens if the ground outside is covered with the stuff for miles around? That's what a team of UNLV geologists is trying to figure out after the surprise discovery of potentially toxic, asbestos-type minerals in rocks and dust from Boulder City to the southeastern edge of the Las Vegas Valley. University of Nevada, Las Vegas geology professor Brenda Buck said this marks the first discovery of naturally occurring asbestos fibers in Southern Nevada. A peer-reviewed study detailing the find was published last month in the journal of the Soil Science Society of America. So how worried should everyone be? "At this point we know enough to know there is a hazard. We don't know what the risk is," Buck said. "There's a lot of work that needs to be done. Until we know more, it would be a good idea to avoid dust from those areas." That could be a tall order. The study area takes in all of Boulder City and a wide swath of the Eldorado Valley, with tendrils that reach to the shore of Lake Mead and into the oldest parts of Henderson. "It's not everywhere, but I think you're going to have a hard time not finding it," Buck said. "In every sample we looked at we found it. We found it pretty easily, too. I didn't have to look very hard." For one test, Buck spent about three hours walking her horse along a dirt road in Boulder City. When she was done, she found asbestos fibers on her pants and her shoes. "The last thing we want to do is upset people or cause a panic. But on the other side, we don't want to give people assurances we can't give," said UNLV geologist Rodney Metcalf, who partnered with Buck on the study. "We can't in good conscience say there's no problem." The long, thin minerals were forged roughly 13 million years ago in the roots of volcanoes, also known as plutons. "Boulder City sits on top of one of these plutons," Metcalf said. The fibers have been weathering from the ground for the past 12 million years or so, giving them plenty of time to spread out, Buck said. She specializes in something called medical geology, basically the study of the health impacts of minerals. She was in the midst of sampling arsenic in the dust blowing from Nellis Dunes when she came across a fibrous mineral in one of her samples. She later started talking to Metcalf about the asbestos-like fibers he was studying in northwestern Arizona, and the two decided to go looking for trouble in similar rock deposits in Southern Nevada. What they mostly found was a mineral called actinolite, one of six types of asbestos regulated as a toxic substance by the U.S. Environmental Protection Agency. Buck said she notified "several people" at the EPA about her discovery. Asbestos fibers can't be absorbed through the skin, but if inhaled or swallowed they can spawn a range of deadly diseases that might not develop for a decade or decades. The real "pathway to humans" is in the air, Metcalf said. The fibers are too tiny to be seen with the naked eye and so light that they can stay aloft indefinitely once they've been stirred up by the wind or the tires on a vehicle. Asbestos exposure is linked to mesothelioma, cancer of the lungs, larynx and ovaries, depressed immune function, and other disorders. "There's no known safe amount," Buck said. "The good news is not everyone who is exposed gets sick." Buck, Metcalf and company plan to continue their research and expand their study area under a three-year grant from the Bureau of Land Management. That work will include taking a closer look at other potential trouble spots in Clark County, most of it contained within the roughly 1,200 square miles of desert between U.S. Highway 95 and the Colorado River from Boulder City to the southern tip of the state. Buck said the bureau wants to know more about where such deposits are and what kind of risks they pose. "They're worried about their workers," she said. Meanwhile, researchers from the University of Hawaii are in the early stages of tests to determine how carcinogenic the fibers in Southern Nevada might be. They also plan to conduct a health assessment to see if any documented cases of mesothelioma, a rare cancer closely associated with asbestos, could be the result of "environmental exposure" in or around Boulder City, Buck said. Metcalf said asbestos is actually a loaded term, with varying definitions used by doctors, geologists and environmental regulators. For example, he said, the fibers he has found in Mohave County, Ariz., do not meet the regulatory definition of asbestos. But that doesn't mean they're safe. In fact, they are similar to those found in Libby, Mont., where so much toxic soil was spread around by a nearby mine that the entire small town has been declared a Superfund site by the Environmental Protection Agency. "You get this debate about is this asbestos or is it not," Metcalf said. "It's really not the issue. The issue is, is it toxic." Buck grew up in Montana and has cousins who got sick and died in Libby. She said she started taking special precautions in the field after the first fibers were found around Boulder City. "As soon as I knew they were there, I sure as hell did. I wear a mask." The discovery also forced her to revamp her lab at UNLV to make it safer. "The whole point is don't let it get into the air. You can't just drag it in and expose everyone to it." For the same reason, Buck has decided not to take college students into the field with her to help collect samples as she normally would. She doesn't want to expose them to something with the potential to shorten their lives. "They're just so young." ASBESTOS UPDATE: Japan Government Liable for Fibro Exposure ----------------------------------------------------------- Bangkok Post reported that the Osaka High Court became Japan's first high court to hold the government responsible for failing to prevent workers from being exposed to harmful asbestos. In a suit seeking 700 million yen in damages filed by 58 plaintiffs including former asbestos spinning mill workers in southern Osaka Prefecture, the court also awarded more in damages than the Osaka District Court had in an earlier ruling. The Osaka High Court ordered the government to pay 340 million yen in damages, nearly twice the 180 million yen awarded by the district court in March 2012. Among the plaintiffs were 33 who worked at asbestos spinning mills or other places between 1947 and 1999, and who suffered from diseases including asbestosis and lung cancer. Some of them are now deceased. The plaintiffs claimed that the government delayed implementing anti-asbestos measures, thus contributing to the former workers developing asbestos-caused diseases. In another asbestos exposure case involving southern Osaka factories, the Osaka High Court in August 2011 reversed a district court ruling that had held the government responsible for a similar failure. That case is still pending in the Supreme Court. ASBESTOS UPDATE: Barnstaple Man Died from Fibro Exposure -------------------------------------------------------- North Devon Journal reported that a builder died from a disease after being exposed to asbestos, an inquest has heard. Anthony Langmead was 67 when he died at North Devon Hospice in Barnstaple, in England, on September 2. Mr Langmead had worked on various sites as a builder often using asbestos sheets and being exposed to dust. Coroner John Tomalin said in his summing up: "I am satisfied Mr Langmead during his working life on building sites as a general builder was subject to exposure to asbestos from various contractors working near or around him. "I accept Dr Friend's conclusion that he died from malignant mesothelioma and that is commonly associated with exposure to asbestos." ASBESTOS UPDATE: Shrader Law Offers Consultations to Veterans ------------------------------------------------------------- Naval service members suffer from a preternaturally high rate of mesothelioma, largely due to the greater risk of exposure. Shrader Law and Associates, LLP recently announced that they are now offering in-home consultations for former navy service members who have been diagnosed with malignant mesothelioma. The intent of these in-home consultations is the make the legal process as easy as possible for those suffering from the illness. Mesothelioma is a rare type of cancer that affects the mesothelium, the protective cells that line several organs of the body. It most commonly occurs in the chest cavity, but may also be present in the abdominal cavity or the cardiac cavity. Though often aggressive, treatment options do exist. These include surgery, radiation, and chemotherapy. The vast majority of mesothelioma cases can be directly linked to exposure to asbestos in the workplace. Asbestos is a group of dangerous minerals once used commercially in the construction of all sorts of things, including houses, buildings, barracks, and submarines. While asbestos that remains intact presents no danger, when fibers become airborne (as they would during maintenance or remodeling procedures), they can be inhaled. This presents a much more significant risk. Mesothelioma can have a long latency period: some people may be diagnosed thirty or forty years after asbestos exposure. In some cases, the latency period may be even longer. Former and present members of the navy experience a strikingly high rate of mesothelioma. This is likely due to the fact that naval ships built in previous decades were filled with thousands of pounds of asbestos. It was used to insulate pipes and walls. This drastically increased the risk and occurence of asbestos exposure to members who served. During the newly offered in-home consultations for veterans diagnosed with mesothelioma, attorneys will advise clients of their rights to compensation and their rights to file a claim in a court of law. They will discuss mesothelioma as it relates to the exposure sustained during naval service. Shrader Law and Associates, LLP is a law firm focused solely on representing victims of mesothelioma and their families. They aim to seek justice by holding negligent parties responsible for their actions. With a long and proven record of success, Shrader Law and Associates has successfully recovered more than 100 million in compensation for their clients. For more information, Shrader Law and Associates can be contacted at (713) 782-0000. Media Contact: Ross Stomel, Shrader Law, (713) 782-0000, ross@shraderlaw.com ASBESTOS UPDATE: Wash. Court Flips Summary Judgment in Fibro Suit ----------------------------------------------------------------- HarrisMartin Publishing reported that a Washington appellate court has reversed a summary judgment award entered in favor of an asbestos defendant, ruling that the plaintiffs had presented enough evidence to establish a prima facie case. In the Dec. 23 opinion, the Washington Court of Appeals, Division 1, further opined that any contradictory testimony should be assessed by a trier of fact. The plaintiffs contend that Thomas Montaney developed mesothelioma after he was exposed to asbestos concrete pipe during his employment with the Cedar River Water and Sewer District. ASBESTOS UPDATE: Ilfracombe Man Died from Deadly Dust Exposure -------------------------------------------------------------- North Devon Journal reported that an 86-year-old man died from a form of cancer caused by asbestos exposure during his work as a carpenter. Thomas Greenaway, from Ilfracombe, in England, worked with asbestos as a building material and did not wear protective clothing, an inquest heard. He became a carpenter at the age of 23 having previously been a Royal Marine and a bus conductor. Coroner John Tomalin recorded Mr Greenaway died from malignant mesothelioma as a result of exposure to asbestos. ASBESTOS UPDATE: Third Fibro Testing Takes Place at Fire Site ------------------------------------------------------------- Scott Harper, writing for Georgetown Times, reported that a third round of asbestos testing took place on the debris pile created by the Sept. 25 fire that destroyed a large part of the waterfront portion of the 700 block of Front Street. The testing, mandated by the S.C. Department of Health and Environmental Control, must take place before the debris can be removed from the site. Traces of asbestos were found in late October. Myra Reece, chief of the S.C. Department of Health and Environmental Control's (DHEC) Bureau of Air Quality, said it was at first thought the asbestos was confined to the roofing and flooring materials but early testing showed it may be in other areas. Jeanette Ard, owner of Colonial Floral Fascinations which was leveled by the fire, said the testing is being done to isolate where any asbestos may be located. The areas that are determined to be asbestos free can be cleaned up, she said. Ard said once the all clear is given, she plans to have the debris on her property loaded onto trucks and moved to another location where she can sort through it to save the good bricks and any other valuables that may be buried in the rubble. The testing is being conducted by Carolina Asbestos Abatement Inc. of Florence. ASBESTOS UPDATE: New Trier Board OKs Winnetka Campus Fibro Removal ------------------------------------------------------------------ Steve Schering, writing for Winnetka Sun Times, reported that in advance of their Americans with Disabilities Act upgrades to the Gaffney Auditorium, the New Trier High School Board has approved the removal of asbestos to prepare the area for the work. The facilities upgrades, to take place at the Winnetka campus in summer 2014, will include two new ADA-compliant restrooms being constructed in the south lobby of the Gaffney Auditorium. To facilitate the work it is necessary to remove asbestos pipe insulation in the basement below the lobby. According to board documents, New Trier received three bids for the project. Bay Remediation submitted the lowest bid at $41,000. EHC Industries bid $62,350 while Colfax Corp. put in a $63,100 bid. The bid caught the attention of Local 225 Labor Union, who appeared before the board Dec. 16 to ask if the amount followed the Prevailing Wage Act in Illinois. "This is a clear red flag that this contractor is more than likely not going to pay a prevailing wage," said Tony Cantone of Local 225. "I talked to two bidders on this contractor who said (it would take) about 60-80 man days. Bay's bid surpassed that at about 40 man days." The varying amounts of the bids caught New Trier's attention as well and Facilities Manager Steve Linke said the school district did their homework after receiving the bids. "The contractor assured us his number was sound," Linke said. "He was the only contractor to come back out to the site after our mandatory pre-bid meeting with his foreman and spent about an hour down in the area looking at everything. He feels he can do his work in less shifts than the others can and his overhead is lower. When we sat down with him he had everything covered. We couldn't find anything in his bid that said otherwise." New Trier officials said the company would be required to pay a prevailing wage per their contract and that school administrators will review all records related to the asbestos removal. "In all of our bid documents we have a requirement they pay prevailing wage," said Assistant Superintendent of Finance and Operations Cheryl Witham. "They sign an affidavit that they do and then we actually check payroll records and verify that they are paying a prevailing wage." Under terms of the deal, if the company were found to not be paying a prevailing wage they would be required to do so at no additional cost to the district. The work is being completed over winter break and will have no impact on students or staff. "We want to do it now," Linke said. "The idea is to have everything complete by the time summer gets here so we're not holding up the contractors." ASBESTOS UPDATE: Victims Stress Vitality of Lawyers' House Calls ---------------------------------------------------------------- The Mesothelioma Victims Center is incredibly passionate about making certain all diagnosed victims of mesothelioma in the United States get the best possible financial compensation for this extremely rare form of cancer that is caused by exposure to asbestos. The mesothelioma attorneys suggested by the Center consistently get the best compensation results for their clients, and these incredibly skilled professionals set themselves apart by making that a trip to the victim's house for a face to face conversation about asbestos excposure. For more information about these remarkable services for diagnosed victims of mesothelioma, all diagnosed victims, or their family members, are encouraged to call the group anytime at 866-714-6466. So why is a face-to-face house call, and conversation so vital when it comes to mesothelioma compensation? The attorneys suggested by the Mesothelioma Victims Center know how to ask the right questions in order to determine where the victim may have come in contact with asbestos. These attorneys are some of the most experienced mesothelioma compensation experts in the nation, who ask all of the right questions. The asbestos exposure details only the diagnosed victim would know about add enormous value to a mesothelioma compensation claim. The Mesothelioma Victims Center says, "The quality of the mesothelioma attorney has a direct bearing on the amount of compensation the diagnosed victim will receive. Mesothelioma compensation claims can range from hundreds of thousands to millions of dollars. The face to face conversation in the victim's home makes obtaining vital information about asbestos exposure much easier for the victim, and the skilled mesothelioma attorneys." All to often, the victim is too weak or too sick to travel on their own. The Victims Center prides itself on the mesothelioma attorneys they suggest are in the diagnosed victim's home within 48 hours because time is of the essence. According to the CDC, the states with the highest incidence of mesothelioma per capita include Maine, New Jersey, Pennsylvania, Washington, Wyoming, West Virginia. However, a diagnosed victim of mesothelioma could be in any state such as: Ohio, Virginia, Oregon, Montana, Idaho, Louisiana, Indiana, Illinois, North Dakota, Kansas, Nebraska, Wisconsin, Minnesota, Rhode Island, Nevada, Arizona, Massachusetts, Michigan, and Maryland. States with the most victims of mesothelioma include California, New York, Florida, and Texas. http://MesotheliomaVictimsCenter.Com Mesothelioma is an extremely rare form of cancer. According to the US CDC approximately 2,500 to 3,000 US citizens are diagnosed with mesothelioma each year. Mesothelioma cancer is a result of exposure to asbestos. One-third of all US mesothelioma victims served in the US Navy. Other high-risk groups for mesothelioma include shipyard, power plant, chemical plant, oil refinery workers, plumbers, county or city municipal water district workers, miners, airplane mechanics, electricians, demolition construction workers, railroad repair yard workers, or auto mechanics. The Mesothelioma Victims Center says, "Typically the average US mesothelioma victim is in their late 60's, 70's, or even 80's. More often than not mesothelioma is diagnosed three, four, or even five decades after the exposure to asbestos in. For a son, daughter, or wife trying to get the most honest information after a mesothelioma diagnosis, including the names of the most skilled mesothelioma law firms in the nation when it comes to financial compensation, the Mesothelioma Victims Center has no equal, and a victim, or their family members can call us anytime at 866-714- 6466."http://MesotheliomaVictimsCenter.Com For more information about mesothelioma please visit the US Centers for Disease Control's web site about this asbestos exposure rare form of cancer. ASBESTOS UPDATE: WHO Lists Toxic Agents in Environment ------------------------------------------------------ Natalya Kovalenko, writing for Voice of Russia, reported that the World Health Organization has drawn up a list of chemical substances that are the greatest health hazards, including asbestos, benzol, cadmium, arsenic, too little or too much phosphorus, quicksilver, lead and some others. The WHO also points out the ongoing air pollution buildup. The WHO admits that it is impossible to fully give up the use of harmful chemicals at the given stage of industrial development. But contact with toxic substances may well be ratcheted down. People are actually killed by the environment, for plastic products, chipboard furniture, cosmetics, water and even food products are all stuffed with chemicals, most of which are horrible toxins that kill millions of people across the world every year. Asbestos, for example, is a set of silicate minerals, superior to some grades of steel in terms of tensile strength; it is non-water soluble, chemically inactive, and immune to solar radiation effects, ozone and oxygen. Asbestos is used in mechanical engineering, road building, in making tubes and wall tiles. However, if its fibres are breathed in from the air, they remain inside one's body for good, causing lung or throat cancer, and also ovarian cancer or malignant mesothelioma. A campaign for banning the use of asbestos was launched across the world in the late 20th century. Asbestos has since been banned in the United States, Australia, New Zealand, Japan, and the European Union. Other countries allow the use of long-fibre asbestos, which is less carcinogenic. However, old road surfaces and buildings are still in place, so short-fibre asbestos continues poisoning one and all. Yet another example is heavy metals, also added to the WHO list. They have long been known for their adverse health effects, yet they continue to be used extensively in everyday life, an expert of the commission on updating the national health care system and demography of the Russian Public Chamber, Irina Ilchenko, says and elaborates. "Heavy metals are seen as super toxicants because they will not emerge from the body for a long time. Kidneys and other urinary organs are most sensitive to cadmium. Lead is a neuro-toxicant that's responsible for neurodevelopmental delay even in minor concentrations. It negatively affects pregnancies, delivery and infants. But adults also suffer from the bad effects of lead". Any concentration of lead is a health hazard. It is breathed in or penetrates one's body through skin. Yet, we continue using things made of lead, such as soldering alloys and weight leads, printer's types and ovenware frit glaze. Even the walls of old buildings pose a threat, since they were painted by lead paints, currently banned by law. Even if you make home in a recently repaired old building, you may rest assured that the deepest layers of lead paint continue releasing toxic air-pollutants that will steadily kill you. Cadmium is known to be used in car batteries. Many people will also know of yellowish self-attack screws, of which the cover contains cadmium. Quicksilver is used in thermometers and energy- saving lamps that may cause a lot of problems if you accidentally break them. Reports have been increasingly frequent about the negative influence of chemical substances that were earlier believed to be man's best friends. Fluorine is a case in point. A small amount of fluorine is good for one's organism, it lowers caries incidence. Once that was proved, fluoridized tooth pastes, drinking water and even milk became available for acquisition. But the move backfired by destroying adamantine substance of teeth and the skeletal system. The difference between the safe and hazardous amounts of fluorine is insignificant. Chlorine is known to be a strong poison. It was used as a war chemical during the First World War. But it can also kill numerous microbes, so it began to be used to decontaminate water. Cholera and enteric disorder epidemics were quickly reduced to naught. But chlorine will, just as any chemical agent, interact with other substances, and with bad consequences, says the director of the Centre for Human Ecology, Doctor of Medicine, Yuri Rakhmanin, and elaborates. "The agents that get composed during the decontamination of water using chlorine dioxide are indeed a big problem to deal with. If there is aniline in water and the water is chlorinated, you may get up to 11 newly formed compounds, including 6 carcinogens. According to the US data of the 1980s, the byproducts of water chlorination account for a 5% to 15% contribution to cancer growth". But as the WHO makes public its list of most harmful chemical agents, it offers no solution. Many of these chemicals have long been used in everyday life and cannot be given up until replaced by other effective products. But we should maximally reduce contact with toxins in everyday life. We could, for instance, carefully read what's written on cosmetics and household chemistry product labels and give up all harmful, albeit effective, substances. ASBESTOS UPDATE: Grant Sought for Fibro Removal on Isthmus ---------------------------------------------------------- Andy Hobbs, writing for The Olympian, reported that Olympia, Washington, will pursue a $200,000 grant from the U.S. Environmental Protection Agency to put toward asbestos removal at two abandoned buildings on the downtown isthmus. Located at 505 and 529 Fourth Ave. W., the city-owned properties are part of a future park envisioned for the strip of land between Capitol Lake and West Bay. Olympia purchased the properties in June for about $3.3 million. Before moving forward with the Brownfields Cleanup Grant application, the city will seek public feedback beginning Jan. 1. A public meeting will run from 6-7 p.m. Jan. 9 at The Olympia Center, 222 Columbia St. NW. The grant application will then go before the Olympia City Council for approval on Jan. 14. More information is available at olympiawa.gov/isthmus. The total asbestos abatement is expected to cost about $550,000, said project engineer Kip Summers. The cost will be supplemented by a $200,000 grant from the state Recreation and Conservation Office, a recent $100,000 donation from the Olympia Capitol Park Foundation, and a Community Development Block Grant worth $50,000. Grant funding is still needed for demolition and soil cleanup at the site. No timetable has been established for site preparation and park construction. Jerry Reilly of the Olympia Capitol Park Foundation estimated the isthmus park could cost between $15 million and $18 million. The park proposal has been a divisive issue. In August, the Olympia Master Builders objected to the City Council's decision to purchase the two isthmus properties, and filed a petition with the state's Growth Management Hearings Board to declare the sale invalid. The city's purchase had resulted in the defunding of 11 parks projects. Olympia Master Builders argued that the deal created a "de facto amendment" to the city's comprehensive plan without public participation. The city and OMB reached a settlement Nov. 6. Under the settlement's terms, Olympia agreed to provide OMB and the public with clear information about all expenditures and costs related to the isthmus park project. "This case was never about whether or not there should be a park on the isthmus," OMB President Jon McKinlay said in a news release. "Instead, what the case was about was the complete lack of transparency and public participation in the city's decision to divert funds from other parks projects to purchase this property." ASBESTOS UPDATE: Wis. Court Says Fibro Case Wrongly Dismissed ------------------------------------------------------------- The Associated Press reported that a Wisconsin appeals court says a case brought on behalf of a worker who died as a result of asbestos exposure was wrongly dismissed. The 1st District Court of Appeals ordered a trial in the case, saying the lawsuit properly alleges a negligence claim against Wisconsin Electric Power Company, which now does business as We Energies. Robert Viola worked as an insulator or "pipe coverer" from the mid-1950s through the early 1980s. Some of the projects where he worked were at properties owned by Wisconsin Electric. During that work he was exposed to asbestos dust. Viola died from cancer in 2009. The power company argued because Viola performed some of the work releasing the asbestos dust, he can't collect damages. The appeals court disagreed and ordered a trial. ASBESTOS UPDATE: Developers Claim Fibro Will Become Health Risk --------------------------------------------------------------- Matt Strudwick, writing for Get Surrey, reported that asbestos found on a former brickworks and chemical works site in Cranleigh, in England, is a human health risk and has hastened the need for houses to be built there, according to developers. Director of Kember Loudon Williams Mr Martin Hull is proposing to build 13 houses and 15 tourist lodges at Cranleigh Bricks and Tile Works on behalf of landowners Rural Arisings and Steward Transport Ltd. In 2008 American multi-national clean-up specialist Cherokee had plans rejected by Waverley Borough Council to build 170 homes on the heavily contaminated Knowle Lane site with the borough claiming there was "no exceptional urgency" for cleaning the site given the success of measures controlling the release of polluted water. But in July this year a new survey by engineering consultants Buro Happold found asbestos in 26% of 50 soil samples taken at the site. "This is a human health risk especially during summer when warm temperatures and wind can blow them about," said Mr Hull. "The water lagoons on site are subject to ad-hoc management and some of the infrastructure is in poor condition, the middle lagoon has over topped before, with climate change and increasing rainfall the storage system will continue to deteriorate if left and so it is important. "The Water Framework Directive (EU legislation) has tightened up considerably and under EU law we have to comply with this. "The net effect is the zinc and dieldrin contamination of the water from the site does exceed these minimum standards. This was not the case several years ago. In addition, at the time of the Cherokee application no asbestos was apparent." If accepted developers say they will first need to cap the land with clay and subsoils, involving 35 HGVs accessing the site six days a week for five-and-a-half years using Wildwood Lane. Mr Matthew Amell, 38, lives near the site and says scaremongering tactics are being used in order to push through the proposals and has questioned the timing of the application. He said: "Residents haven't been given much time to look at the plans and express their views with the application being put in over Christmas. "I received a letter on December 3 or 4 and need to reply by January 3. They did put the plans up in the village hall but they were only small and it makes you think they are trying to sneak it through." Waverley Borough Council say it is committed to engaging with people and businesses to ensure they take part in the planning process and have written to 46 neighbours. The application is expected to go to the planning committee in March. ASBESTOS UPDATE: Principal Reports Fibro Hazards, Loses Protection ------------------------------------------------------------------ Edward Garris, writing for Burnt Orange Report, reported that the Texas Supreme Court continued its line of cases narrowing protections for whistleblowers. Earlier in December, the court handed down an opinion deciding whether a whistleblower's report of alleged violations of law by a school district would receive protection under the Whistleblower Act if the reports were made only to other officials within the school district. Existing -- but recent -- precedent from only a few months prior indicated that internal complaints were insufficient to fall within the ambit of the Whistleblower Act. The problem goes to the language of the statute itself and the interpretation of "law-enforcement authority" status under the Act. The Court held that such reports -- made internally -- were not contemplated by the Act and did not give such internal compliance officers such authority. A principal at a pre-K school in the Ysleta Independent School District (YISD) reported asbestos hazards at the school to the chief academic officer. The academic chief dismissed the report; the principal responded with a copy of a work order showing that floor tiles in the school had been replaced as part of asbestos abatement. With his reports, the school principal claimed that the asbestos violations were a breach of employment contract and requested a transfer to another school. The YISD suspended the principal; the principal filed a lawsuit under the Whistleblower Act. In his whistleblower claim, the principal claimed that the school district violated federal law concerning asbestos when it didn't respond to his reports. He then argued that his reports to school officials were sufficient to invoke the Whistleblower Act because the school district is a government entity, and a government entity is a law enforcement authority under the Act. The trial court and appeals court agreed with the principal. The Texas Supreme Court disagreed. The Texas Supreme Court held in this case -- and in a new line of cases including University of Texas Southwestern Medical Center v. Gentilello, 398 S.W.3d 680, 686 (Tex. 2013), and Canutillo Independent School District v. Farran, 409 S.W.3d 653, 655 (Tex. 2013) -- that in order to invoke the Whistleblower Act, a person making a claim must make a report to someone other than a person charged only with internal compliance. A person charged with internal compliance is one who cannot enforce rules or laws outside of their organization -- in this case, the school district. To invoke the Act, a person making a claim -- a whistleblower -- must submit evidence that the political body to which they are making the report has authority to enforce laws beyond that particular political body itself. If a putative whistleblower cannot do this, then he or she cannot show that the political body has "law enforcement authority" under the Act. Because the school district officials to whom the principal reported the asbestos law violations could not enforce, investigate or prosecute violations of law by -- or promulgate laws governing -- other third parties, they did not have this authority. As a result, the principal could not be considered a whistleblower and invoke the protections of the Act, despite any allegations of asbestos abatement going on at the school or any other related hazards to public health. ASBESTOS UPDATE: Defendant Entitled to Info in Take-Home Case ------------------------------------------------------------- HarrisMartin Publishing reported that a West Virginia federal court has granted a motion to compel, ruling that asbestos defendant Ohio Power Co. is entitled to know what parties have reached settlement agreements with the plaintiffs, as it may alter its defenses. In a Dec. 18 order, the U.S. District Court for the Western District of West Virginia further ruled that the defendant was entitled to information regarding the identities of manufacturers and suppliers of asbestos-containing products or contractors using those products in the relevant time frame. ASBESTOS UPDATE: Wash. Court Dismisses Shipyard Exposure Claims --------------------------------------------------------------- HarrisMartin Publishing reported that a Washington federal court has dismissed the remaining asbestos claims asserted against the United States in a shipyard exposure case, finding that the evidence used to support the post-1970 exposure claims was speculative. The Dec. 20 decision from the U.S. District Court for the Western District of Washington comes four months after the District Court dismissed the pre-1970 claims on grounds that they were precluded by the discretionary function exception to the Federal Tort Claims Act. In that decision, the District Court called the post-1970 claims "questionable," and only denied the United States' motion to dismiss the post-1970 claims. ASBESTOS UPDATE: Judge Declares Mistrial in Hot Tops Case --------------------------------------------------------- HarrisMartin Publishing reported that a Seattle federal judge has declared a mistrial in a case involving asbestos-containing hot tops after a jury failed to reach a unanimous decision after two days of deliberations. According to a Dec. 16 minute entry on the U.S. District Court for the Western District of Washington's online docket, the court declared a mistrial after questioning each of the jurors individually. The plaintiffs have since moved to amend their complaint and requested a Spring 2014 trial date for the retrial. ********* 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 and Peter A. 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