/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/140321.mbx C L A S S A C T I O N R E P O R T E R Friday, March 21, 2014, Vol. 16, No. 57 Headlines AMERICAN PIZZA: Uses Flawed Method for Reimbursement, Driver Says ASSOCIATION LAW: Accused of Violating Fair Debt Collection Act ATMEL CORP: Faces "Guerrini" Suit Over Closure of Silicon Plant BROWN-FORMAN CORP: Sued by Bartender Over Jack Daniels Accident CARRIER IQ: Wants Court to Approve Arbitration Bid in Privacy Suit DR. PHONE FIX: Fails to Pay Proper Overtime Rate, Suit Claims EBAY INC: 9th Circuit Rejects Contract Breach Claims EOG RESOURCES: Removed "Lawyer" Suit to District of North Dakota FIFTH THIRD BANK: Check-Cashing Fee Suit Remanded to State Court FLORIDA: Same-Sex Couples File Suit Over Gay Marriage Ban FRESH FARMS: Class Seeks to Recover Illinois-Mandated Overtime GARY MELIUS: Oheka Castle Owner Accused of Cheating on Wages/Tips GENERAL ELECTRIC: Faces Class Actions Over Fukushima Disaster GENERAL MOTORS: Merchant Law Group Commences Recall Class Action GENERAL MOTORS: May Face Criminal Inquiry Over Car Shutdowns GLAXOSMITHKLINE: Faces Suit Over Paxil-Linked Birth Defects GOOGLE INC: Search Engines Being Linked to Revenge Porn Site GRACO INC: Judge Dismisses Antitrust Class Action HOFFMAN-LAROCHE: Jury Returns $1.59MM Verdict in Accutane Suit HOME SHOPPING: Emeril Brand Knives Were Made in China, Not Germany ITALIAN COLORS: Ban on Swipe Fees Unconstitutional, Retailers Say JAMES HARDIE: Misrepresents Durability of Siding, Suit Claims JANSSEN PHARMACEUTICALS: Parents Get $3MM Award in Topamax Case JPMORGAN CHASE: Wins Final OK of Suit Over Force-Placed Insurance KANGADIS FOOD: Class Action Over Adulterated Olive Oil Can Proceed L&B INDUSTRIAL: Class Suit Seeks Minimum and Overtime Wages LEXISNEXIS RISK: Sued Over Unlawful Use of "Esteem" Database LIFELOCK INC: Faces Arizona Suit Alleging It Defrauded Investors LITTLE INDIA: Class Seeks to Recover Unpaid Overtime and Wages MCDONALD'S CORP: Seven Class Actions Filed Over Wage Theft MINNESOTA: Attorney Files Class Action Over Driving Classes MOY TOY: Removed "Eagles" Suit to Middle District of Tennessee NATIONAL COLLEGIATE: Limits Aid to College Athletes, Suit Says NESTLE USA: Alleged Chocolate Cartel Wins Favorable Judgment NORTHWESTERN MGMT: Fails to Pay Proper OT, Dental Assistant Says PEPSICO INC: Faces "Sciortino" Suit Over Pepsi's Caramel Coloring PFIZER INC: Faces "Lemaire" Suit in Louisiana Over Lipitor Drug POWER & LIGHT: Faces Class Action Over Racial Discrimination PUDA COAL: Judge Dismisses Securities Class Action RANCHO FEEDING: Health Officials Issue Recall for Beef Jerky REAL CHINESE: Suit Seeks to Recover Damages for Unpaid OT Wages SASKATCHEWAN: SARM Mulls Suit Over Land Transfer Agreements SEASIDE ROOFING: Fails to Pay Proper Overtime Rate, Laborer Says SINGAPORE AIRLINES: Settles Class Action in Australia SONIC DRIVE-IN: Accused of Making Employees Work Off the Clock SOUTHERN RESPONSE: Canterbury Homeowners Attend Meeting STERLING JEWELERS: Judge Dismisses Gender Discrimination Claim TAKEDA PHARMACEUTICAL: Faces Antitrust Suit Over ACTOS, ACTOSplus TARGET CORP: Faces "Crawford" Suit in Tennessee Over Data Breach TOYS DISTRIBUTION: Inspectors Found Unsafe Levels of Lead in Toys TRANSOCEAN LTD: Judge Dismisses Securities Class Action UNITED STATES: ACLU Files Class Action v. Secret Service Agents VERTRUE INC: Webb Klase & Lemond Files Class Action VITAL PHARMACEUTICALS: Court Refused to Certify "Karhu" Class WASTE MANAGEMENT: Faces New "Mesidor" Discrimination Suit in Fla. WELLS FARGO: Accused of Violating Labor Laws in California WHITEHAVEN COAL: Law Firm Examines Grounds for Class Action WINCO FOODS: Sued by DFEH Director Over FEHA and ADA Violations ZIMMER INC: Faces Product Liability Suit Over Knee Implant Asbestos Litigation ASBESTOS UPDATE: 2 Adversary Suits in CP Hall Ch. 11 Case Junked ASBESTOS UPDATE: Ford Motor Suspects It was Target of Fibro Attys ASBESTOS UPDATE: Union Carbide Recorded $501-Mil. Liabilities ASBESTOS UPDATE: Union Carbide Had $91MM Insurance Receivables ASBESTOS UPDATE: Exelon Corp. Unit Reserves $90MM for PI Claims ASBESTOS UPDATE: Ingersoll-Rand Recorded $846.2-Mil Liabilities ASBESTOS UPDATE: Cliffs Natural Resources Has 50 Pending Cases ASBESTOS UPDATE: "Hokanson" Suit Remanded to N.J. State Court ASBESTOS UPDATE: Preference Granted in "Kestenbaum" Suit ASBESTOS UPDATE: NY Court Flips Ruling in Reinsurance Suit ASBESTOS UPDATE: Bankrupt's Suit v. Condo Owner Remanded ASBESTOS UPDATE: Ruling in Monongahela Insurance Suit Affirmed ASBESTOS UPDATE: Defendants in Ala. PI Suits Win Summary Judgment ASBESTOS UPDATE: 11th Cir. Affirms Misrepresentation Suit Ruling ASBESTOS UPDATE: Limitations Bar Claims v. Federal-Mogul ASBESTOS UPDATE: "Phillips" Suit Remanded to Calif. State Court ASBESTOS UPDATE: "Baldwin" Suit Remanded to Del. State Court ASBESTOS UPDATE: Ruling in Homeowners' Insurance Suit Affirmed ASBESTOS UPDATE: Toro Company's Bid to Dismiss "Soucy" Denied ASBESTOS UPDATE: Bid to Exclude Testimony in Utah PI Suit Denied ASBESTOS UPDATE: Md. Court Denies Bid to Remand "Citrano" Suit ASBESTOS UPDATE: Research Says Fibro Causes Autoimmune Responses ASBESTOS UPDATE: Fibro Slows Down St. Nicholas House Demolition ASBESTOS UPDATE: Fibro Drilling Mud Exposure a Concern Years Later ASBESTOS UPDATE: Fibro Delays Reopening of Tyne Tunnels ASBESTOS UPDATE: Council Considering Abatement at Windsor Center ASBESTOS UPDATE: Bid to Reclaim Fibro Care Costs Pending ASBESTOS UPDATE: Expert Denies Writing Letter During Trial ASBESTOS UPDATE: Geologists Take on Key Health Problem ASBESTOS UPDATE: Wantirna Reserve Fenced Off After Fibro Detected ASBESTOS UPDATE: Half of Coventry Schools Still Contain Fibro ASBESTOS UPDATE: Cancer Scare at STATIN, Fibro Found on Premises ASBESTOS UPDATE: Treatment for Fibro-Link Cancer Evaluated ASBESTOS UPDATE: Port Lincoln Hospital Fibro Clean-up Underway ASBESTOS UPDATE: Fibro Dispute at Historic Younkers Bldg. Heats Up ASBESTOS UPDATE: Fibro-Related Death Leads to Lawsuit v. Dupont ASBESTOS UPDATE: East Cannington Resident Fears Fibro Exposure ASBESTOS UPDATE: Fibro Found in Greyfriars Bus Station ASBESTOS UPDATE: Revolutionary Treatment Gives Victims New Life ASBESTOS UPDATE: Pennsylvania Man Files Fibro Exposure Complaint ASBESTOS UPDATE: EPA Confirms Interstate Waste Load Had Fibro ASBESTOS UPDATE: Madisonville Bldg. Site of Fibro Probe ASBESTOS UPDATE: Jurors Hear Late Victim's Testimony in Trial ********* AMERICAN PIZZA: Uses Flawed Method for Reimbursement, Driver Says ----------------------------------------------------------------- Mike Gassel, individually and on behalf of similarly situated persons v. American Pizza Partners, L.P., American Restaurant Partners, L.P., and RMC American Management, Inc., Case No. 1:14-cv-00291-PAB-BNB (D. Colo., January 31, 2014) is brought by a former employee of the Defendants, who worked as a delivery driver at their Pizza Hut restaurant in Greeley, Colorado, from October 2007 to September 2012. The Defendants employ delivery drivers, who use their own automobiles to deliver pizza and other food items to customers, Mr. Gassel says. He contends that instead of reimbursing delivery drivers for the reasonably approximate costs of the business use of their vehicles, the Defendants use a flawed method to determine reimbursement rates that provides an unreasonably low rate beneath any reasonable approximation of the expenses they incur that the drivers' unreimbursed expenses cause their wages to fall below the federal and Colorado minimum wage during some or all workweeks. The Defendants operate approximately 130 Pizza Hut franchise restaurants in seven states including Colorado, Montana, Oklahoma and Texas. The Defendants' Pizza Hut restaurants employ delivery drivers, who all have the same primary job duty: to deliver pizzas and other food items to customers' homes or workplaces. The Plaintiff is represented by: Richard M. Paul III, Esq. Jack D. McInnes, Esq. PAUL McINNES LLP 2000 Baltimore, Suite 100 Kansas City, MO 64108 Telephone: (816) 981-8100 Facsimile: (816) 981-8101 E-mail: paul@paulmcinnes.com mcinnes@paulmcinnes.com - and - Mark A. Potashnick, Esq. WEINHAUS & POTASHNICK 11500 Olive Blvd., Suite 133 St. Louis, MO 63141 Telephone: (314) 997-9150 Facsimile: (314) 997-9170 E-mail: markp@wp-attorneys.com ASSOCIATION LAW: Accused of Violating Fair Debt Collection Act -------------------------------------------------------------- Marie R. Prinsen and Yann M. Balu, on behalf of themselves and all others similarly situated v. Association Law Group, P.L., a Florida Professional Limited Company, Case No. 2:14-cv-14047-JEM (S.D. Fla., February 1, 2014) alleges violations of the Fair Debt Collection Practices Act. The Plaintiffs are represented by: J. Garry Rooney, Esq. ROONEY AND ROONEY PA 2145 14th Avenue Second Floor, Suite 20 Historic Courthouse Executive Center Vero Beach, FL 32960-4414 Telephone: (772) 778-5400 Facsimile: (772) 778-5290 E-mail: attorneys@rooneyandrooneylaw.com - and - Leo Wassner Desmond, Esq. 5070 N. Highway A1A, Suite D Vero Beach, FL 32963 Telephone: (772) 234-5150 Facsimile: (772) 234-5321 E-mail: lwd@verobeachlegal.com The Defendant is represented by: John Cody German, Esq. COLE SCOTT KISSANE PA 9150 South Dadeland Boulevard, Suite 1400 Miami, FL 33156 Telephone: (305) 350-5300 E-mail: Cody.German@csklegal.com ATMEL CORP: Faces "Guerrini" Suit Over Closure of Silicon Plant --------------------------------------------------------------- A U.S.-based semiconductor manufacturer promoted a straw buyer for its largest and costliest European plant in order to shut the facility and duck its responsibility to pay as much as $700 million to laid-off union workers, a class action claims in Federal Court, reports Dan McCue at Courthouse News Service. Named plaintiff Jean Yves Guerrini, one of 750 workers at the Lfoundry Rousset SAS in Rousset, France, claims that the plant owner, the Atmel Corp. of San Jose, Calif., conspired to fraudulently sell the silicon wafer facility to a buyer that could ill afford the investment. The desired result, Guerrini claims, was to bankrupt the unit so that Atmel could avoid making redundancy payments to union employees, as required by French law and the facility's collective bargaining agreement. "To affect this plan, board members of Atmel designed a sophisticated scheme," Guerrini says in the lawsuit. "First, Atmel had to choose a co-conspirator that would pose as a serious and solvent buyer in order to lure the employees of the Rousset Wafer Unit into accepting to transfer." This acceptance is a critical part of the firm's collective redundancy plan. To advance the scheme, Guerrini claims, Atmel retained the services of an advisory firm, nonparty ATREG, specializing in outsourcing in the semiconductor industry. "Atmel selected the ideal candidate to be its co-conspirator: Lfoundry GMBH, a company with virtually no experience in the field of semiconductors and whose affiliate was on the verge of bankruptcy," Guerrini says. Named as defendants are Atmel Corp., Atmel Rousset SAS, and Lfoundry GMBH. To get the Lfoundry/Rousses workers to go along with the transfer agreement, Atmel misrepresented the supposed buyer's financial health, its ability to assume Atmel's obligations under the collective bargaining agreement, and promised that up to 180 of the plant's workers would be bought out after the jobs became redundant and eliminated, according to the 54-page lawsuit. "In reality, as plaintiffs later discovered, Lfoundry GMBH had barely any record at all in the semiconductor field and was in a financially unsound position," Guerrini claims. He says that in addition to avoiding the costly payments to the union members who lost their jobs -- a number that would swell from 180 to 750 with the plant's closure -- Atmel engaged in several illegal transactions with Lfoundry that would allow it to strip the shutter facility of all of its assets. Why go to such lengths? According to Guerrini, Atmel had taken several steps in recent years to streamline its manufacturing operations, by selling several fabricating facilities in the United Kingdom and Germany, the ultimate goal being to boost its share price and reward its shareholders. Initially, he says, the plan was to keep the French manufacturing plant, which had received $82 million in support from French public authorities and had contracts with several French customers, including the French military. But despite these sales, by the end of 2008, Atmel's stock price was still a pathetic $3.13. It was then, Guerrini claims, that the company's officers decided it needed to get the Rousset plant off its books. "However, closing down the Rousset Wafer Unit would have been so costly that it would have defeated the purpose of a cost-cutting strategy to increase Atmel's stock price," according to the complaint. "Atmel was faced with a dilemma. On the one hand if it shut down the wafer-manufacturing until it would have to pay a costly redundancy plan to the employees that would be terminated. On the other hand if it sold the Rousset Wafer Unit to a credible investor it would create a strong competitor," Guerrini claims. "That is why Atmel chose not to pursue either of these routes. Instead Atmel designed a careful plan to dispose of the Rousset Wafer Unit by fraudulently conveying it to a third party hired to shut it down. ATREG's mission was to assist Atmel in finding an acquirer that could fool the employees of the Rousset Wafer Unit and lead it to bankruptcy. "As a direct and proximate result of defendants' enterprise and wrongful conduct, Plaintiff Lfoundry Rousset (current name of the Rousset wafer unit) went bankrupt and the class action plaintiff and the class he seeks to represent have suffered or are about to suffer damages as a consequence of the termination of their employment . . . without payment of a collective redundancy plan to which they were legally entitled." Guerrini seeks class certification and damages for RICO fraud, illegal contract, common law fraud, intentional interference with contract and civil conspiracy. He also seeks a declaration that the stock purchase agreement between the alleged conspirators is void because it was entered into for illegal purposes. The Plaintiff is represented by: Philippe Jean Joseph Pradal, Esq. PRADAL & ASSOCIATES, PLLC 112 W 34th Street New York, NY, 14850 Telephone: (917) 750-3106 E-mail: contact@pradallaw.com BROWN-FORMAN CORP: Sued by Bartender Over Jack Daniels Accident --------------------------------------------------------------- Adam Nies, 403 139th Street, Ocean City, Maryland 21842 v. Brown- Forman Corporation, P.O. Box 1080, Louisville, KY 40201, Case No. 1:14-cv-00319-GLR (D. Md., January 31, 2014) concerns a personal injury, specifically, a severe hand injury including laceration, tendon and nerve damage, and scarring, sustained by the Plaintiff while he was working as a bartender at The Greene Turtle restaurant in Ocean City, Maryland. At the time of his injury, Mr. Nies says he was attempting in proper fashion to manually open a previously unopened bottle of Jack Daniels "Old No. 7" Tennessee Whiskey, manufactured and sold to TGT by the Defendant, for use at the restaurant/bar. He alleges that the subject bottle was manufactured in a defective manner, and contained manufacturing defects at the time it was sold to TGT. Brown-Forman Corporation is a Delaware corporation, having its principal place of business in Kentucky. The Company is a diversified manufacturer, producer, and seller of a variety of consumer brands, including Jack Daniels "Old No. 7" Tennessee Whiskey. The Company markets, distributes, and sells its products throughout the United States. The Plaintiff is represented by: Bruce Frederick Bright, Esq. Kevin Preston Gregory, Esq. AYRES JENKINS GORDY AND ALMAND PA 6200 Coastal Hwy., Suite 200 Ocean City, MD 21842 Telephone: (410) 723-1400 Facsimile: (410) 723-1861 E-mail: bbright@ajgalaw.com kgregory@ajgalaw.com The Defendant is represented by: Mark Anthony Kozlowski, Esq. LAW OFFICES OF JONATHAN P. STEBENNE 100 South Charles Street Suite 1101-Tower II Baltimore, MD 21201 Telephone: (410) 752-0575 Facsimile: (603) 334-7065 E-mail: mark.kozlowski@libertymutual.com CARRIER IQ: Wants Court to Approve Arbitration Bid in Privacy Suit ------------------------------------------------------------------ Julia Love, writing for The Recorder, reports that software company Carrier IQ and a host of cellphone manufacturers fought to convince a federal judge on March 12 that a massive privacy class action should be knocked into arbitration. The companies argue that plaintiffs' claims must be ejected from federal court because they signed contracts containing arbitration clauses when they bought their phones. But plaintiffs counter that the contract is irrelevant because it was struck between consumers and their carriers, which are not defendants in the case. They claim the installation of Carrier IQ's tracking software, which logged keystrokes and other data, violated their privacy. Lawyers flooded the courtroom of U.S. District Judge Edward Chen on March 12 to argue the motion to compel arbitration in In re Carrier IQ Inc. Consumer Privacy Litigation, 12-2330, which both sides acknowledge would wipe out the multidistrict litigation if granted. Sitting around the defense table were attorneys from Fenwick & West for Carrier IQ; Munger, Tolles & Olson for HTC America; Covington & Burling for Huawei Devices USA; Greenberg Traurig for LG Electronics MobileComm U.S.A.; and Skadden, Arps, Slate, Meagher & Flom for Samsung Telecommunications America. Lawyers at Pearson Simon & Warshaw and Hagens Berman Sobol Shapiro appeared for the plaintiffs. Carrier IQ lawyer Rodger Cole, who argued for the defendants, told Judge Chen that plaintiffs cannot escape arbitration because their claims against the manufacturers and the Sunnyvale-based software company are entwined with their service agreements. The defense is drawing on the doctrine of equitable estoppel, which holds that plaintiffs cannot cite a contract to bring claims while distancing themselves from another part of the document. Although Carrier IQ and the manufacturers were not privy to the contract, they should be able to invoke the arbitration clause "to avoid eviscerating the intent of the parties when they entered into the arbitration agreement," Mr. Cole said. Judge Chen pushed back against that argument. He questioned whether the plaintiffs, who filed statutory claims under the Electronic Communications Privacy Act and other laws, were really trying to have it both ways with their service agreements. "If the claim is based on the statute, and there are no contract-based claims, I'm not sure where the inconsistency would be," he said. But Mr. Cole warned that such a narrow construction of equitable estoppel would deal a devastating blow to arbitration agreements. "Plaintiffs could avoid arbitration agreements just by not asserting breach-of-contract claims," he said. Manufacturers installed Carrier IQ's software at the request of carriers. But Hagens Berman partner Robert Lopez -- robl@hbsslaw.com -- stressed that the program collected far more information than what the carriers sought. "The carriers were looking for very benign sorts of network diagnostic materials," he said. "That's why we didn't sue them." Lopez said the plaintiffs suspect Carrier IQ intercepted messages in the hopes of eventually selling targeted ads, much like Google does with its Gmail service. But Mr. Cole wrote off the allegations about Carrier IQ's conduct as a "red herring." "That is not a question before this court [Wednes] day," he said. "That is a substantive question that will be decided in this case by the arbitrator." DR. PHONE FIX: Fails to Pay Proper Overtime Rate, Suit Claims ------------------------------------------------------------- Adriel Angel Robothan, on his own behalf and all similarly situated individuals v. Dr. Phone Fix, Inc., a Florida profit corporation, William Daragan, and Timothy Phelps, Case No. 0:14-cv-60262-RNS (S.D. Fla., February 1, 2014) alleges that the Plaintiff worked for the Defendants in excess of 40 hours per week but no payments, and provisions for payment, have been made by the Defendants to properly compensate him at the statutory rate of one and one-half times his regular rate for those hours worked in excess of 40 hours per work week. Dr. Phone Fix, Inc., is a Florida Foreign Profit corporation. The Individual Defendants are residents of Broward County, Florida, and are managing agents, directors or owners of DR. The Plaintiff is represented by: Elliot Kozolchyk, Esq. KOZ LAW, P.A. 320 S.E. 9th Street Fort Lauderdale, FL 33316 Telephone: (786) 924-9929 Facsimile: (786) 358-6071 E-mail: ekoz@kozlawfirm.com - and - Richard Celler, Esq. CELLER LEGAL GROUP 7450 Griffin Road, Suite 230 Davie, FL 33314 Telephone: (954) 243-4295 Facsimile: (954) 337-2771 E-mail: richard@floridaovertimelawyer.com EBAY INC: 9th Circuit Rejects Contract Breach Claims ---------------------------------------------------- Scott Graham, writing for The Recorder, reports that a San Diego lawyer's claim that virtual auctioneer eBay breaches its contract with millions of sellers ran into a marble wall on March 12 in a Ninth Circuit courtroom. Roy Katriel is trying to bring a class action against eBay Inc. on the ground that the company helps bidders obtain the lowest sale price possible, despite promising in its user agreement to remain neutral in all transactions. "What they put in the agreement is very specific. They said, 'We are not involved in the actual transaction,'" Mr. Katriel told the court on March 12. "Now it turns out they are." Under eBay's process, bidders enter the maximum they're prepared to bid. The company's software then discloses only so much as necessary to beat the previous high bid. So if a user authorizes a $50 bid, and the previous high bid is only $40, the user gets the item for $41. That shortchanges sellers, Mr. Katriel alleges in Block v. eBay. There's one glaring problem with his argument. "Doesn't everybody who enters a bid on eBay understand what the system is?" Judge Stephen Reinhardt asked. Mr. Katriel acknowledged that eBay explains the process, but says it does so "on some unindexed page" that isn't linked to its user agreement. And the user agreement explicitly sets out the entirety of the agreement, he contended. Mr. Reinhardt said that he's not personally familiar with eBay, and Judge Jerome Farris didn't sound like a power seller, either. But it's clear eBay isn't deceiving anybody, Mr. Farris told Mr. Katriel. Besides, "if we do what you're asking us to do, goodbye eBay, isn't that right?" No, Mr. Katriel argued, eBay would simply have to amend its user agreement and reserve the right to act as a proxy. The third member of the panel, visiting U.S. District Judge Paul Huck of Florida, sounded even more skeptical than Messrs. Reinhardt and Farris. He compared eBay to a mediation neutral that simply shuttles offers back and forth between parties, with "no dog in the fight." But, Mr. Katriel argued, if a party told the mediator, "I'll pay up to $80, but try to get it for me for less . . . he'd be working on your behalf." Cooley partner John Dwyer -- dwyerjc@cooley.com -- representing eBay, had a far easier time. In fact, he faced zero questions during his 10-minute argument. He said eBay's user agreement "strongly recommends" that users also read about the automatic bidding process, which can be accessed via a drop-down menu. "He never alleges they were misled about how the automatic bidding system works," Mr. Dwyer said. The statement about staying out of the bidding process is only a limitation of liability that makes clear eBay isn't acting as a fiduciary like some traditional auction houses, he said. "What it's saying is, 'Hey, if you think you're with Christie's or Sotheby's, you're not.'" EOG RESOURCES: Removed "Lawyer" Suit to District of North Dakota ---------------------------------------------------------------- The purported class action lawsuit titled Lawyer, et al. v. EOG Resources, Inc., Case No. 53-2014-CV-00043, was removed from the Northwest Judicial District, County of Williams, State of North Dakota to the U.S. District Court for the District of North Dakota (Northwestern). The District Court Clerk assigned Case No. 4:14- cv-00009-DLH-CSM to the proceeding. The Complaint alleges that EOG improperly flared gas and failed to pay the Plaintiffs and the putative class members royalties on gas flared from wells operated by EOG in North Dakota. The Plaintiffs are represented by: Cody L. Balzer, Esq. BALZER LAW FIRM, PC 1302 Cleveland, Ave. Loveland, CO 80537 Telephone: (970) 203-1515 E-mail: cody@balzerlaw.com - and - Derrick L. Braaten, Esq. Lindsey R. Nieuwsma, Esq. BAUMSTARK BRAATEN LAW PARTNERS 109 N. 4th Street, Suite 100 Bismarck, ND 58501 Telephone: (701) 221-2911 Facsimile: (701) 221-5842 E-mail: derrick@baumstarkbraaten.com lindsey@baumstarkbraaten.com - and - Britton D. Monts, Esq. THE MONTS FIRM 401 Congress Avenue, Suite 1540 Austin, TX 78701 Telephone: (512) 474-6092 E-mail: bmonts@themontsfirm.com - and - Matthew J. Kelly, Esq. TARLOW & STONECIPHER, PLLC 1705 West College Street Bozeman, MT 59715 Telephone: (406) 586-9714 E-mail: mkelly@lawmt.com The Defendant is represented by: Lawrence Bender, Esq. Michael D. Schoepf, Esq. FREDRIKSON & BYRON, P.A. 200 North 3rd Street, Suite 150 P.O. Box 1855 Bismarck, ND 58502-1855 Telephone: (701) 221-4020 E-mail: lbender@fredlaw.com mschoepf@fredlaw.com - and - Van H. Beckwith, Esq. BAKER BOTTS L.L.P. 2001 Ross Avenue, Suite 600 Dallas, TX 75201 Telephone: (214) 953-6500 E-mail: van.beckwith@bakerbotts.com - and - Bill Kroger, Esq. Jason Newman, Esq. BAKER BOTTS L.L.P. One Shell Plaza 910 Louisiana Houston, TX 77002 Telephone: (713) 229-1234 E-mail: bill.kroger@bakerbotts.com jason.newman@bakerbotts.com FIFTH THIRD BANK: Check-Cashing Fee Suit Remanded to State Court ---------------------------------------------------------------- A $4 check-cashing fee that Fifth Third Bank charges those who do not have accounts with them should be handled in a Florida state court, a federal judge ruled, reports Dan McCue at Courthouse News Service. Brian McDaniel sued Fifth Third Bank in November 2013, claiming the bank unlawfully deducts $4 to $10 from checks presented to it by non-account holders, despite the fact the parties have no contractual relationship and never agreed to such deductions. McDaniel, who says he had the fee deducted when he cashed a $75 check at a Fifth Third Bank branch in July 2012, said the bank must pay or settle a check according to its terms -- in other words, in full. Hoping to represent a class, McDaniel sued in the Circuit Court of Orange County, Fla. Fifth Third Bank removed the case to the Middle District of Orlando, but U.S. District Judge Gregory Presnell in Orlando remanded the case. Because the parties have agreed that compensatory and statutory damages would not exceed $2.9 million, jurisdiction turns on whether punitive damages could exceed $2 million, if they are recoverable at all. After reviewing McDaniel's claims, Presnell concluded they would not. To begin wit, McDaniel's fraud and fraud in inducement claims are deficient on their face, according to the ruling. Additionally, the statutory limit on punitive damages under Florida's Consumer Collection Protection Act is $1.5 million. "Simply put, McDaniel does not appear to have viable claims, and the only claims that could result in sufficient punitive damages to confer federal jurisdiction fail as a matter of law," Presnell wrote. "Therefore, McDaniel's motion to remand to state court must be granted." Brian McDaniel, individually, and on behalf of all others similarly situated v. Fifth Third Bank, Case No. 6:13-cv-01878- GAP-GJK, in the United States District Court for the Middle District of Florida, Orlando Division. FLORIDA: Same-Sex Couples File Suit Over Gay Marriage Ban --------------------------------------------------------- John Pacenti, writing for Daily Business Review, reports that eight same-sex couples have filed a federal lawsuit challenging Florida's refusal to recognize out-of-state marriages, saying it violates their constitutional rights. The lawsuit differs from the one filed in January by other gay and lesbian couples in Miami-Dade Circuit Court that directly challenges the state ban on gay marriage. All of the federal plaintiffs are gay couples who were married out of state. They include Akerman attorney Richard Milstein and his partner of 12 years, Eric Hankin, a Miami public schoolteacher. The lawsuit is being spearheaded by the American Civil Liberties Union of Florida and SAVE, a lesbian, gay, bisexual and transgender rights organization based in South Florida. The lawsuit filed on March 12 in Tallahassee federal court was assigned to U.S. District Judge Robert L. Hinkle, a Clinton appointee. "Each of these couples has their own story of how the state's discriminatory refusal to recognize their marriages has impacted their lives," said Daniel Tilley, LGBT rights attorney for the ACLU of Florida. He said the couples have all the rights and responsibilities of marriage in the states where they exchanged vows, and the federal government recognizes their marriages. "It's time for Florida to stop the harmful practice of treating committed couples as if they are strangers," Mr. Tilley said. States that don't recognize gay marriage have faced numerous lawsuits since the U.S. Supreme Court struck down the federal Defense of Marriage Act as unconstitutional last year. Howard Simon, executive director of the ACLU of Florida, said, "Sadly, Florida refuses to recognize those marriages, often at significant cost to their families." Numerous Challenges The lead plaintiff is Sloan Grimsley, a firefighter from Palm Beach Gardens who is married to Joyce Albu, a consultant assisting parents of children with developmental disorders. The couple is concerned that if something happened to Sloan in the line of duty, Albu would not receive the financial support offered by the state, Mr. Grimsley said. "I'm proud of the work that I do protecting my community, but the law in Florida doesn't let me protect my own family," Mr. Grimsley said. "We just want the peace of mind of knowing that those vows we took to care for one another aren't dependent on where we are." The lawsuit is the latest in a groundswell of challenges in the divisive gay marriage debate. In the last month, similar lawsuits have been filed in Alabama and Indiana. In Kentucky, a federal judge ordered the state to recognize same-sex marriages performed legally in other states and countries. The lawsuit names Gov. Rick Scott, Attorney General Pam Bondi and other top Florida officials as defendants. It asks the judge to declare Florida's refusal to recognize same-sex marriage as an unconstitutional violation of equal protection and due process rights. The lawsuit also asks for a ruling requiring the state to recognize same-sex marriages performed elsewhere. Seventeen states and the District of Columbia allow gay marriage. A separate lawsuit filed earlier this year in Miami-Dade Circuit Court challenges the DOMA-based ban on same-sex marriage that Florida voters added to the state Constitution in 2008. Kunal Parker, a law professor at the University of Miami School of Law, said the federal lawsuit is interesting because it doesn't directly challenge Florida's ban on gay marriage. "It chips away at the ban," Mr. Parker said. "But these arguments really are about equal protection and due process." FRESH FARMS: Class Seeks to Recover Illinois-Mandated Overtime -------------------------------------------------------------- Adolfo Alvirde, Jose Eduardo Alvirde, Octavio Oviedo, Sergio Moreno, Francisco Ponton Gonzales, Oswaldo Diaz, Javier Olivares, Victor Hugo Arteaga Castillo, Antonio Rangel, on behalf of themselves and all other persons similarly situated, known and unknown v. Fresh Farms International Market, Inc., Dean Svigos, individually, and Mike Svigos, individually, Case No. 1:14-cv- 00715 (N.D. Ill., January 31, 2014) accuses the Defendants of willfully failing to pay the Plaintiffs and other similarly situated employees the federal and Illinois-mandated overtime wages for all time worked. Fresh Farms International Market is an Illinois Corporation with its principal place of business in Wheeling, Illinois. Since at least 1995, the Defendants have operated at least three Fresh Farms grocery stores located in Chicago, Wheeling, and Niles, Illinois. Fresh Farms is owned and operated by Dean Svigos and Mike Svigos. Fresh Farms sells deli and bakery items, produce, dairy, and groceries that you would find in a local grocery store. The Plaintiffs are represented by: Alex R. Thiersch, Esq. Renee E. Coover, Esq. THIERSCH & ASSOCIATES 180 N. LaSalle St., Suite 3700 Chicago, IL 60601 Telephone: (312) 981-0990 Facsimile: (312) 753-6001 E-mail: thiersch@thierschlaw.com rcoover@thierschlaw.com - and - John Moran, Esq. Matthew Layman, Esq. THE MORAN LAW GROUP 309 W. Washington, Suite 900 Chicago, IL 60606 Telephone: (312) 630-0200 E-mail: mtl1981@gmail.com GARY MELIUS: Oheka Castle Owner Accused of Cheating on Wages/Tips ----------------------------------------------------------------- The owner of Oheka Castle -- America's second-largest private home and an inspiration for "The Great Gatsby" -- cheats his workers on wages and tips, a class action claims in New York Federal Court. The lawsuit comes a week after the castle's owner was shot in the head on the castle's grounds by a masked gunman who remains at large, according to Nick Divito at Courthouse News Service. Named plaintiff Michael Ernano, who worked as a server and bartender at the popular wedding destination, sued Gary Melius, his sons-in-law John Anthony Dipetra and Fabian Santibanez, and the castle's catering company, Oheka Management Corp. The castle, which according to the lawsuit is valued at more than $43 million, was one of the inspirations for F. Scott Fitgerald's novel and was used as the setting for Orson Welles' 1941 film "Citizen Kane" as the palatial estate, Xanadu. With 32 guestrooms, the castle hosts catered events for as many as 400 diners, and can accommodate up to 1,000 guests, according to the lawsuit. "Along with the incredible opulence of Oheka Castle comes a hefty price tag reaping substantial revenues for defendants Gary Melius and the Oheka Entities," the complaint states. "On an episode of the reality television program, Bridezillas, one bride-to-be mortgaged her house in order to finance her fairy tale wedding at the enchanting Oheka Castle." According to the complaint, Melius has boasted that revenue came to $3.6 million in 2011 and hoped to increase that to more than $3.8 million in 2012. "Despite earning millions from the labor of their servants, behind the castle walls," the lawsuit states, Melius and his team "keep more of those revenues for themselves and cheat workers of wages and tips." Ernano claims that he and other workers were not paid for overtime worked, nor for all the hours they worked, that they were not paid in a timely manner, and that their tips were stolen. Ernano claims castle managers required workers to carry over their overtime hours into subsequent weeks to avoid paying overtime, and that workers whose hours approached 40 hours in a work week were required to clock out of their "biometric timekeeping system and continue working." Ernano says he was forced to work at least four shifts without pay during his probationary period. He claims that not only did Melius keep cash tips left for him by patrons, but also pocketed a 22 percent "service charge" that was tacked onto customers' bills who use the castle's catering services. "Defendants have led patrons to believe that the service charges would be paid to the service staff," the lawsuit states. "However, defendants did not remit any of those charges to the service staff." Melius, 69, was in the parking lot of the Long Island castle in Huntington, N.Y., when he was shot in the head on Feb. 24. Melius survived. Ernano seeks class certification and damages for violations of the federal Fair Labor Standards Act and state labor laws. Also named as defendants are castle manager Kathy Thompson; Oheka Management Corp.; Oheka Catering Inc.; Oheka Management LLC; and Oheka Catering LLC. The Plaintiff is represented by: Christopher Marlborough, Esq. THE MARLBOROUGH LAW FIRM, P.C. 555 5th Avenue, FL 14 New York, NY 10017-9257 GENERAL ELECTRIC: Faces Class Actions Over Fukushima Disaster ------------------------------------------------------------- UPI reports that two class-action lawsuits have been filed in New York City against General Electric Co. over the Fukushima nuclear disaster in Japan, court documents show. In one case, lead plaintiff Mitsuru Okura alleges GE and GE- Hitachi failed to properly design, build and maintain the nuclear power plant destroyed by the 9.0-magnitude earthquake and subsequent tsunami that struck Japan on March 11, 2011, Courthouse News Service reported on March 12. A summons and notice filed in New York County Supreme Court seeks compensatory damages of at least $3 million per plaintiff. The filing did not state the number of people included in the class but the news service noted more than 100,000 people were evacuated following the disaster. Mr. Okura alleges that because of the companies' negligence and recklessness, he and other class members suffered "personal injury, mental anguish, emotional distress, property damage, business interruption, loss of business, loss of income, economic injuries, and ongoing long-term physical, mental and emotional health problems," the document states. Besides GE, Mr. Okura served notice to GE-Hitachi Energy Holdings LLC, GE-Hitachi Nuclear Energy Americas LLC, GE-Hitachi Nuclear Energy International and ABC Corps. 1-50, Courthouse News Service said. The second case was brought against the same defendants by Sasaki Body Ltd. and Mihana Ltd. It seeks $5 million in damages per class member. GENERAL MOTORS: Merchant Law Group Commences Recall Class Action ---------------------------------------------------------------- Merchant Law Group LLP commenced a Canada-wide class action on March 13 against General Motors, concerning the recent recall of an ignition-switch affecting 1.6 million GM vehicles worldwide and allegedly linked to 13 accidental deaths. "The ignition switch defect is a widespread problem affecting more than 235,000 General Motors vehicles in Canada. Owners of these GM vehicles are at risk and can experience a sudden unexpected loss of power and engine shut down due to the ignition defect alleged by this class action. Our class action seeks compensation for affected vehicle owners and proper repair of these GM vehicles," stated Tony Merchant, Q.C., earlier on March 13. In part, this national class action asserts that these GM vehicles suffer from a design defect which puts drivers at risk of the ignition switch disengaging from the "ON" position to the "OFF" position while driving, resulting in: a) loss of electrical power, b) loss of power-steering function, c) loss of electrical brake-assisting, and/or d) loss of air-bag function. For more information on the GM Ignition Class Action (whether engine shut down has been experienced or not), please visit: https://www.merchantlaw.com/classactions/gmignition.php GM Models affected by the ignition switch defect include: 2005 to 2004 Chevrolet Cobalt 2006 to 2007 Chevrolet HHR 2005 to 2007 Pontiac G5 2006 to 2007 Pontiac Solstice 2003 to 2007 Saturn Ion 2006 to 2007 Saturn Sky Merchant Law Group LLP is a Canadian class action firm, with 12 offices across Canada from Montreal to Victoria. Merchant Law Group LLP is well known for pursuing class action lawsuits in Canada including litigation regarding GM Gasket Manifolds, Hip Implants, Vioxx, Hollinger, Residential Schools, and various other cases. Tony Merchant is known to be one of Canada's most active litigators with more than 600 reported cases in leading Case Law Journals, having argued thousands of cases before the Canadian and American Courts, in Trial and Administrative Courts, and the Courts of Appeal of various American and Canadian jurisdictions, the Federal Court of Canada, and the Supreme Court of Canada. Tony Merchant, Q.C., has a long history in pursuing public policy cases and is a former elected Member of the Legislative Assembly (M.L.A.) GENERAL MOTORS: May Face Criminal Inquiry Over Car Shutdowns ------------------------------------------------------------ Sue Reisinger, writing for Corporate Counsel, reports that Michael Millikin, General Motors Co.'s general counsel, now has a new problem to contend with -- a possible criminal inquiry by the U.S. Department of Justice into the timeliness of GM's response to consumer complaints of sudden and sometimes-fatal car shutdowns. Under the Transportation Recall Enhancement, Accountability and Documentation Act of 2000, known as the TREAD Act, an auto company can face criminal penalties if it does not report to regulators a defect that led to serious injury or death within five days of learning of the incident. Bloomberg News reported the opening of the DOJ inquiry earlier this week, based on unnamed sources. And The New York Times corroborated the investigation on March 12, according to its own sources. But GM spokesman Alan Adler told CorpCounsel.com on March 13, "We have not been informed of a Justice Department investigation." It wasn't as though Mr. Millikin didn't have plenty to deal with already, related to a defective ignition switch that resulted in what GM now says were 12 deaths and numerous crashes and injuries. GM has recalled 1.6 million cars to repair the problem. Details are in its recall letter. The DOJ inquiry goes atop Mr. Millikin's already sizable inbox: Earlier last week, GM named Mr. Millikin and outside counsel Anton Valukas -- avalukas@jenner.com -- of Jenner & Block to lead an internal investigation into how the company handled complaints about the defect that may have begun as early as 2001. The National Highway Traffic and Safety Administration has opened an investigation into why GM took so long to admit and fix the problem. The House Energy and Commerce Committee has opened an investigation into why GM and NHTSA took so long to address the problem. Plaintiffs lawyers across the country are lining up aggrieved clients to sue GM, which until now has been steadily recovering from its 2009 bankruptcy and government bailout. The lawsuits could be an especially sticky problem for Mr. Millikin and GM. Under the bankruptcy restructuring, the "new GM" accepted no responsibility for prebankruptcy defects or repairs, which remained with the "old GM." Experts are saying suits over the decade-old ignition defect could throw GM's bankruptcy into question and reopen liability issues the company thought it had put to rest, according to a story in Wednesday's New York Times. If GM knew about the ignition switch defect at the time and didn't disclose it, or the potential for litigation over it, then, "You open up the bankruptcy and start all over again," John Pottow, a lawyer specializing in bankruptcy and business law at the University of Michigan Law School, told the Times. GM's Adler said on March 13, "We have no comment on any matters in litigation." Some auto-safety advocates are urging GM to avoid this particular issue by waiving its postbankruptcy immunity, according to a story in the March 12 USA Today. Clarence Ditlow, who runs the Center for Auto Safety, and John Claybrook, a former head of NHTSA, have asked GM to set up a $1 billion fund to cover the ignition liability, the story said. Meanwhile, bipartisan leaders of the House committee scrutinizing the company's conduct have written a letter to GM management seeking more information on the ignition problem. The letter asks the company to brief committee staff members by March 18, and to deliver requested documents by March 25. Among items being requested are all field reports related to the ignitions, all related documents submitted to NHTSA, a detailed time line of all related communications between GM and NHTSA, and all communications to or from GM related to the ignitions. And every day seems to bring a new revelation. Transportation Secretary Anthony Foxx was asked about the GM situation during budget testimony before a Senate appropriations subcommittee on March 13. He said GM hadn't given federal regulators enough data to open a formal investigation, but vowed that NHTSA is "conducting an ongoing aggressive investigation into the timing of the recall," according to the Detroit News. With GM under such heavy scrutiny, Mr. Millikin probably shouldn't plan a vacation any time soon. Boyer Named New Global Safety Head The Associated Press reports that General Motors named a new head of global safety on March 18 as part of its ongoing effort to repair the damage from last month's recall of 1.6 million small cars. The company has admitted it knew about defective ignition switches 11 years ago but failed to recall the cars until now. The problem has been linked to more than a dozen deaths. Here is some background on GM's new vice president of global vehicle safety. NAME: Jeffrey Boyer AGE: 58 EDUCATION: Bachelor's degree in electrical engineering, General Motors Institute (now Kettering University), 1979; master of business administration, Michigan State University, 1993. CAREER: Boyer joined GM in 1974 as a co-op student and has held various engineering and leadership positions at the company. Most recently, he served as director of engineering operations and systems development, 2011-present; executive director of global interior engineering and safety performance, 2006-2011; and executive director of advanced purchasing, 2004-2006. FAMILY: Wife Dianne; three sons. GLAXOSMITHKLINE: Faces Suit Over Paxil-Linked Birth Defects ----------------------------------------------------------- Jon Campisi, writing for The Pennsylvania Record, reports that an Ohio woman claims in a newly filed products liability suit that her child was born with infant respiratory distress syndrome and a ventricular septal defect, diagnoses she blames on the fact that she took the antidepressant drug Paxil during pregnancy. Kathryn Kiker, who resides in Columbus, OH, is suing drugmaker GlaxoSmithKline over claims that her child's birth defects are directly attributed to the defendant's medication. The medication "paroxetine," which is marketed under the brand name Paxil, is a selective serotonin reuptake inhibitor that was first approved for use in the United States by the Food and Drug Administration back in 1992 for the treatment of depression in adults. The drug, however, has never been approved by the FDA for use by pregnant women, the lawsuit claims. The plaintiff says her family physician prescribed her the pharmaceutical, which she continued to ingest while she was pregnant with her child, identified in the suit only as "C.S." She gave birth to C.S. in the spring of 2001, records show. "At the time Paxil was prescribed to Mrs. Kiker, GSK knew through pre-market studies and post-marketing studies and reports that Paxil was associated with a significant increased risk of cardiac birth defects in babies whose mothers ingested Paxil during pregnancy," the complaint reads. "Notwithstanding this knowledge, GSK aggressively and actively promoted Paxil for use with pregnant women." The drug company, the lawsuit alleges, encouraged its sales force to promote Paxil to pregnant women and touted the medication as being a safer alternative to other similar drugs for women who were pregnant. "Indeed, GSK even suggested that Paxil was safer and more efficacious than other SSRIs on the market, such as Prozac and Zoloft," the complaint states. "In fact, none of this was true." The defendant's "illegal and improper" marketing of drugs such as Paxil were done to give a "false impression of both the safety and efficacy of the drug to the medical community, prescribing doctors and patients," the lawsuit says. The complaint goes on to allege that GSK did not begin to inform doctors of the serious risk associated with Paxil until September 2005, when third party research was released showing the association between Paxil and cardiac birth defects. The complaint says that prior to Mrs. Kiker's pregnancy with C.S., the defendant had the "knowledge, the means and the duty to provide the medical community and the consuming public with a stronger warning regarding the association between Paxil and birth defects through all means necessary including but not limited to labeling, continuing education, symposiums, posters, sales calls to doctors, advertisements and promotional materials, etc. GSK breached this duty." The suit contains counts of negligence and negligence per se, negligent pharmaco-vigilance, strict liability, failure to warn, breach of express and implied warranties, fraud, negligent infliction of emotional distress, negligent design, negligent misrepresentation, and violations of unfair trade practices and consumer protection laws. The plaintiff seeks unspecified past and future general damages and economic damages, earnings losses, medical expenses, punitive damages, attorneys' fees and costs. The plaintiff is being represented by attorneys Bryan F. Aylstock and R. Jason Richards of the Pensacola, FL firm Aylstock, Witkin, Kreis & Overholtz. The federal case number is 2:14-cv-01445-CMR. GOOGLE INC: Search Engines Being Linked to Revenge Porn Site ------------------------------------------------------------ David Lee at Courthouse News Service reports that after suing a "revenge porn" site in a class action, a Texas woman is going after Yahoo and Google in Federal Court, for allegedly linking to sexually explicit images of her. Hollie Toups, sued the search engine operators March 6, 2014, in Beaumont, Texas, Federal Court. She also sued the Web site myex.com. In January 2013, Toups and 15 other women sued Texxxan.com and web host GoDaddy.com, among others, in Orange County (Texas) Court. The women alleged their intimate photos and private facts were published on Texxxan.com without authorization and that the site is "significantly designed to cause severe embarrassment, humiliation, and emotional distress to all of the women plaintiffs." The class claimed Texxan.com served no useful, social or economic purpose -- that it was "merely a blight upon society and a sick, cowardly enterprise." Orange County Court Judge Buddie Hanh blocked the relaunching of the site three months later, issuing a temporary injunction. In the new lawsuit, Toups claims Yahoo and Google continue to host and/or link to photographs to which she holds copyrights. "Toups has provided proper notice to each of these defendants, requesting that they take down all links that would show these copyrighted photos, and all images showing these copyrighted images," the complaint states. "All of the defendants refuse to do so, despite receiving proper notice and a demand to do so." Yahoo and Google did not immediately respond to requests for comment March 6 evening. Toups seeks damages for breach of copyright and a permanent injunction that stops the hosting and linking of the images. The Plaintiff is represented by: John Morgan, Esq. 2175 North St. Beaumont, TX 77701 Telephone: (409) 239-5984 GRACO INC: Judge Dismisses Antitrust Class Action ------------------------------------------------- Karne O. Newburn, Esq., at McDermott Will & Emery, reports that on March 11, 2014, Judge Ann Montgomery of the District of Minnesota dismissed a putative antitrust class action against Graco Inc. and its distributors that accused Graco of buying two of its closest competitors in the spray foam equipment market for the purposes of raising prices and reducing product options. Insulate SB Inc. v. Abrasive Products & Equipment et al., case number 0:13-cv-02664. The plaintiff alleged that after Graco purchased its rivals, it conspired with its distributors to boycott competitors. The lawsuit followed Graco's FTC settlement which bars it from pressuring distributors into not carrying its competitors' equipment products. The court held that the plaintiff's allegations, which occurred four years prior to filing the suit, were barred by the statute of limitations, and that even if the claims were not time-barred, the plaintiff's allegations were speculative and conclusory. The court also dismissed the plaintiff's request for injunctive relief, finding the remedy drastic for the situation and stating that "Graco's acquisition occurred over five years ago, and divestiture would impose obvious hardship on Graco employees and distributors." HOFFMAN-LAROCHE: Jury Returns $1.59MM Verdict in Accutane Suit -------------------------------------------------------------- Charles Toutant, writing for New Jersey Law Journal, reports that a New Jersey jury on March 11 returned a $1.59 million verdict for a woman who developed bowel disease after using the acne drug Accutane -- the seventh plaintiff victory in as many suits against the manufacturers that have been tried to conclusion. The Atlantic County jury found after a month-long trial that the drug's makers, Hoffman-LaRoche and Roche Laboratories, failed to provide plaintiff Kamie Kendall Ries with adequate warning of the health risks. Ms. Ries, of Salt Lake City, who began using Accutane at the age of 12 in the 1990s, later developed ulcerative colitis and had to have her colon removed. The suit heartened attorneys for plaintiffs in the roughly 7,000 Accutane cases pending in New Jersey and elsewhere. The latest verdict affirms that "Accutane's role as a cause of ulcerative colitis is a settled issue," says plaintiff lawyer David Buchanan -- dbuchanan@seegerweiss.com -- of Seeger Weiss in New York. "Roche's continued denials in the face of seven juries in New Jersey, and one in Florida, stating otherwise is a continuing insult to the many who have who have already suffered so much due to this drug." Ms. Ries, like the other plaintiffs, contends that Accutane was sold with an inadequate warning of the risk of colitis. In Ms. Ries' case, The jury's finding that the inadequacy of warnings extended to 1998, when Ms. Ries was prescribed Accutane, will help plaintiffs in future cases, says Mr. Buchanan's co-counsel, Michael Hook of Hook Bolton in Pensacola, Fla. Roche spokeswoman Tara Iannuccillo said, "We are disappointed in the verdict in light of the clear Accutane warnings and the science showing no link between Accutane and inflammatory bowel disease. Roche intends to appeal." With Roche not talking settlement, the plaintiffs will seek to streamline the litigation through motion practice and trying more cases together in the future, Mr. Buchanan says. The verdict comes after a $10.5 million award in 2008 was overturned in 2010. The Appellate Division found that Superior Court Judge Carol Higbee improperly restricted the defense from presenting statistics about the total numbers of Accutane users. Roche then took the case to the Supreme Court on a statute of limitations issue, and the court held that the suit was timely filed. Of the eight Accutane trials in New Jersey, one of the eight ended in a hung jury in December 2011. In each of the other seven, including Ms. Ries' case, juries found Roche failed to provide adequate working of the risk of bowel disease Of 13 plaintiffs in those seven cases, nine received monetary awards. The other four were found not to have proven proximate cause. Two other plaintiff verdicts have been overturned. Andrew McCarrell saw his 2007 verdict for $2.6 million vacated but he won almost ten times that much, $25 million, in a second trial in 2010. An $11.8 million verdict for three plaintiffs from Florida -- Lance Sager, Jordan Speisman and Kelly Mace -- was reversed in 2012 based on an application of Florida law on proximate cause. The appeals court cited testimony by the three prescribing physicians that a stronger label warning would not have kept them from prescribing Accutane. It's been nearly nine years since all New Jersey suits alleging Accutane has a link to bowel disease were centralized before Higbee. Over time, she has rankled Roche lawyers, both in her rulings and in her demeanor, which they say have demonstrated partiality toward the plaintiffs. In 2012, Roche sought to have her disqualified, citing her comments about the litigation at a defense bar conference and her criticism of the company for not settling. The Supreme Court denied the request this past January. Lead defense counsel on the case are Orlando Richmond Sr. of -- orlando.richmond@butlersnow.com -- Butler Snow in Jackson, Mississippi; Russell Hewit of Dughi Hewit Domalewski in Cranford; Paul Schmidt -- pschmidt@cov.com -- of Covington & Burlington in Washington; and Michelle Bufano -- mbufano@gibbonslaw.com -- of Gibbons in Newark. HOME SHOPPING: Emeril Brand Knives Were Made in China, Not Germany ------------------------------------------------------------------ Courthouse News Service reports that a federal class action claims Home Shopping Network, Martha Stewart Living Omnimedia, Emeril's Homebase, et al., claim their Emeril brand kitchen knives are made in Solingen, Germany, though they are made in China. ITALIAN COLORS: Ban on Swipe Fees Unconstitutional, Retailers Say ----------------------------------------------------------------- Retailers sued California, Texas and Florida, claiming state laws prohibiting "swipe fee" surcharges for credit card purchases are unconstitutional, as they have the same effect as offering a "discount" for using cash: the only difference is in the speech, reports Elizabeth Warmerdam, writing for Courthouse News Service. Small businesses in California, Texas and Florida filed separate federal complaints against their states, claiming that laws prohibiting credit card surcharges violate the First Amendment and are unconstitutionally vague. The plaintiffs claim that a federal judge already has struck down as unconstitutional a similar law in New York. The separate lawsuits filed in Sacramento, Austin and Tallahassee federal courts make similar claims. "Every time a consumer uses a credit card to make a purchase, the merchant incurs a fee -- known colloquially as a 'swipe fee,'" lead plaintiff Italian Colors Restaurant says in its lawsuit against California Attorney General Kamala Harris. "These fees are typically passed on to all consumers in the form of higher prices for goods and services. Both state and federal law, however, permit merchants to pass swipe fees on to only those consumers who pay with credit cards. Merchants may do so by charging two different prices depending on how the consumer pays: a higher price for using a credit card, and a lower price for using other payment methods (cash, a personal check, or a debit card). But, in California, merchants may engage in dual pricing only if they communicate the difference between the cash price and the credit price using the right language: A California law allows merchants to offer 'discounts' for using cash or a debit card, yet makes it illegal to impose 'surcharges' for using a credit card -- even though the conduct in both cases (the use of dual pricing) is the same. "That 'virtually incomprehensible distinction between what a vendor can and cannot tell its customers' has already caused one federal court to strike down New York's indistinguishable statute as an impermissible restriction on free speech and as unconstitutionally vague. Expressions Hair Design v. Schneiderman, - F. Supp. 2d -, 2013 WL 5477607, *1 (S.D.N.Y. Oct. 3, 2013). And the only other federal court to consider state no-surcharge laws has signaled its agreement, calling the statutes 'anti-consumer' and 'irrational,' and finding 'good reason to believe'" that the remaining no-surcharge laws will be overturned. In re Payment Card Interchange Fee & Merchant Discount Antitrust Litig., - F. Supp. 2d -, 2013 WL 6510737, *19-*20 (E.D.N.Y. Dec. 13, 2013). "California's no-surcharge law, CAL. CIV. CODE Section 1748.1, is no different. Like New York's, it violates the First Amendment to the U.S. Constitution and is unconstitutionally vague. The plaintiffs are merchants who seek a declaration that the law is unconstitutional and an injunction preventing the State of California from enforcing the law against them." A credit surcharge and a cash discount are "identical in every way except one: the label that the merchant uses to communicate that price difference," the law suit states. The retailers and small businesses say these labels matter because consumers react differently to surcharges and discounts, even if the ultimate pricing information is the same. "In one study, 74 percent of consumers had a negative or strongly negative reaction to credit surcharges, while fewer than half had a negative or strongly negative reaction to cash discounts. That difference -- the difference in how the same pricing information is understood by consumers -- influences their behavior, making 'surcharges' a much more effective way to communicate the costs of credit to consumers," the complaint states. Italian Colors Restaurant, a family business in Oakland, has found that patrons are generally sympathetic when they learn about the high cost of swipe fees on small businesses and may take that information into account when buying goods and services elsewhere, the lawsuit states. California's no-surcharge law was enacted in 1985, at the urging of the credit card industry. Around the same time, the major credit card companies changed their contracts with merchants to include no-surcharge rules, according to the complaint. However, under the terms of a national class action settlement in January 2013, Visa and MasterCard agreed to drop their contractual no-surcharge rules. In December 2013, in response to a class action lawsuit initiated by Italian Colors Restaurant, American Express also agreed to drop its surcharge ban. "As a result, state no-surcharge laws -- previously redundant because of contractual no-surcharge rules -- have now gained added importance. And as they did in the 1980s, credit-card companies are once again seeking to discourage dual pricing by pushing state legislation that dictates the labels that merchants can use for such systems," the complaint states. Small businesses in California cannot take full advantage of the victories against the credit card companies because they are still not allowed to label the cost differences between credit and cash purchases as a surcharge under California's no-surcharge law, the lawsuit states. Although the law allows dual pricing, it does not convey the costs of credit to consumers and is so vague that many businesses are afraid to have any dual pricing at all for fear of running afoul of the law, the lawsuit states. "The upshot, then, is that merchants end up passing on swipe fees to all consumers by raising the prices of goods and services across the board. This means that consumers are unaware of how much they pay for credit and have no incentive to reduce their credit-card use because they will pay the same price regardless. As a result, swipe fees have soared. "Swipe fees thus function as an invisible tax, channeling vast amounts of money from consumers to some of the nation's largest banks and credit-card companies," the complaint states. Plaintiffs in all three states seek declarations that each state's no-surcharge law is unconstitutional and an injunction enjoining enforcement. The California businesses are represented by: Edward S. Zusman, Esq. MARKUN ZUSMAN FRENIERE & COMPTON LLP 465 California Street, Suite 500 San Francisco, CA 94104 Telephone: (415) 438-4515 Facsimile: (415) 434-4505 E-mail: ezusman@mzclaw.com JAMES HARDIE: Misrepresents Durability of Siding, Suit Claims ------------------------------------------------------------- Steven Schindler v. James Hardie Building Products, Inc., Case No. 0:14-cv-00285-MJD (D. Minn., January 31, 2014) arises from the Company's sale of fiber cement exterior siding ("Siding"). James Hardie Building Products, Inc. manufactured, advertised, sold, and distributed the Siding throughout the United States for installation on homes, commercial buildings, and other structures. The Siding was installed on the Plaintiff's home and remains there as of January 31, 2014. Mr. Schindler contends that James Hardie's Siding has not lived up to its representations and, given the early and severe deterioration that requires unexpected maintenance and premature repair and replacement, has not proven to be of value when compared to other siding products. He adds that the Company also failed to use an appropriate primer for the Siding at the time of manufacture, which exacerbates or accelerates the cracking, flaking, delamination, and discoloration problems. The Plaintiff is represented by: Charles N. Nauen, Esq. Robert K. Shelquist, Esq. Karen H. Riebel, Esq. Scott A. Moriarity, Esq. LOCKRIDGE GRINDAL NAUEN P.L.L.P. 100 Washington Avenue South, Suite 2200 Minneapolis, MN 55401 Telephone: (612) 339-6900 Facsimile: (612) 339-0981 E-mail: cnnauen@locklaw.com rkshelquist@locklaw.com riebekh@locklaw.com samoriarity@locklaw.com - and - Lawrence Deutsch, Esq. Shanon J. Carson, Esq. Jacob Polakoff, Esq. BERGER & MONTAGUE, P.C. 1622 Locust Street Philadelphia, PA 19103 Telephone: (215) 875-3000 Facsimile: (215) 875-4604 E-mail: ldeutsch@bm.net scarson@bm.net jpolakoff@bm.net - and - Michael A. McShane, Esq. AUDET & PARTNERS, LLP 221 Main Street, Suite 1460 San Francisco, CA 94105 Telephone: (415) 982-1776 Facsimile: (415) 576-1776 E-mail: mmcshane@audetlaw.com - and - Charles J. LaDuca, Esq. CUNEO GILBERT & LADUCA, LLP 507 C Street NE Washington, D.C. 20002 Telephone: (202) 789-3960 Facsimile: (202) 789-1813 E-mail: charlesl@cuneolaw.com - and - Charles E. Schaffer, Esq. LEVIN FISHBEIN SEDRAN & BERMAN 510 Walnut Street, Suite 500 Philadelphia, PA 19106 Telephone: (215) 592-1500 Facsimile: (215) 592-4663 E-mail: cschaffer@lfsblaw.com - and - Shawn J. Wanta, Esq. Frances Baillon, Esq. BAILLON THOME JOZWIAK MILLER & WANTA, LLP 222 South Ninth Street, Suite 2955 Minneapolis, MN 55402 Telephone: (612) 252-3570 E-mail: sjwanta@baillonthome.com febaillon@baillonthome.com - and - Clayton D. Halunen, Esq. HALUNEN & ASSOCIATES 1650 IDS Center 80 S 8th Street Minneapolis, MN 55402 Telephone: (612) 605-4098 Facsimile: (612) 605-4099 E-mail: halunen@halunenlaw.com JANSSEN PHARMACEUTICALS: Parents Get $3MM Award in Topamax Case --------------------------------------------------------------- P.J. D'Annunzio, writing for The Legal Intelligencer, reports that the parents of a child born with a cleft lip and palate linked to the mother's use of the anti-seizure drug Topamax during pregnancy have received a $3 million jury award in a failure-to-warn case in Philadelphia. The jury's award March 7 in Anderson v. Janssen Pharmaceuticals marks the third Topamax-related verdict issued against Janssen Pharmaceuticals, the Johnson & Johnson subsidiary that manufactures the drug. The 12-person jury handed up the verdict in Philadelphia Court of Common Pleas Judge Ramy I. Djerassi's courtroom. One of the attorneys representing the plaintiffs in the case, Rosemary Pinto of Philadelphia-based Feldman & Pinto, said that four Topamax cases have gone to trial in Philadelphia so far, and the three that have resulted in awards for the plaintiffs ended up in the multimillion-dollar range. The other cases that rendered verdicts were Powell v. Janssen Pharmaceuticals, producing an $11 million award Nov. 18, and Czimmer v. Ortho-McNeil-Janssen Pharmaceuticals, which resulted in a $4 million award Oct. 31. Ms. Pinto, who noted that she is involved in approximately 40 to 50 additional Topamax cases in Philadelphia, said it was likely that the string of verdicts would prompt a greater willingness on behalf of the defendants to settle. "It's reasonable to conclude that parties will come together after these verdicts," Ms. Pinto said. "I would hope that Johnson & Johnson would accept responsibility and that we won't have to have any more trials." Drinker Biddle & Reath attorney Kenneth Murphy -- Kenneth.Murphy@dbr.com -- represented Janssen in Anderson and declined to comment. Plaintiffs attorney Claudine Q. Homolash, who handles products liability cases, observed that the verdicts might cause a change in Janssen's attitude toward taking Topamax cases to trial. Ms. Homolash was not involved in the Anderson litigation. "I think the fact that there have been three plaintiffs verdicts in the Topamax litigation should cause Johnson & Johnson and Janssen some serious concern," Ms. Homolash said, which may cause them "to revisit how they want to handle some of these cases." In terms of Janssen's defense arguments in the Topamax cases, Ms. Homolash said, "From my understanding, the defense is that it's the mother's fault, and that defense doesn't appear to be working." Several products liability defense attorneys outside of the Topamax litigation declined to offer comments on the issue. The jury in Anderson divided the verdict into $1.5 million for non-economic losses and $1.5 million for future health care expenses. Ms. Pinto said she could not comment as to whether there were any pretrial settlement offers. Plaintiffs Kelly Anderson and her husband argued in their pretrial memorandum that Anderson's ingestion of Topamax during the first trimester of her pregnancy caused their baby's birth defects. Ms. Anderson, who took Topamax to treat her migraine headaches, learned she was pregnant Dec. 26, 2007. Court papers said that Anderson called her neurologist, Dr. Veronica Sosa, to discuss tapering off, but not eliminating, her Topamax use with the belief that her migraines would improve during pregnancy. Court papers said that Mrs. Anderson's obstetrician told her that Topamax was safe to take during pregnancy. The plaintiffs argued Janssen did not adequately warn about the potential risks associated with Topamax until the label was changed in March 2011. The plaintiffs alleged that Janssen knew about the risk of birth defects associated with Topamax as early as a decade before the label change, as evidenced by internal Janssen documents. Janssen employees also acknowledged Topamax's potential to cause birth defects, court papers said, pointing to the testimony of Cathy Ellis, who served as Janssen's associate director of regulatory affairs. "She testified that based on preclinical information at the time, Topamax 'was known to cause some birth defects' in humans as early as 1996," court papers said. However, Janssen's experts testified that it is uncertain as to whether exposure to Topamax during pregnancy causes birth defects, court papers said. In the defendant's pretrial memorandum, Janssen said that one of Mrs. Anderson's doctors informed her of the potential risks associated with taking Topamax during pregnancy and that Ms. Anderson "repeatedly refused" to go off the drug, despite her doctor's warnings. Additionally, the defendant argued that Dr. Sosa knew of the risks Topamax potentially posed when it was labeled as a pregnancy Category C drug before it was changed to Category D, and informed Mrs. Anderson to stop taking Topamax during pregnancy. "Accordingly, Dr. Sosa knew of and understood the precise warnings of which [the] plaintiffs complain," defense papers said. "Janssen's warnings were, therefore, adequate." Janssen maintained that a change to a different warning label for Topamax would not have affected Mrs. Anderson's decision to remain on the drug because she relied on the advice of her obstetrician or she needed the drug for relief of her migraine symptoms. "Mrs. Anderson's conduct, such as her failure to heed the warnings Janssen provided with Topamax and/or heed the warnings concerning the drug's side effects provided by her prescribing physicians, not only prevents [the] plaintiffs from meeting their burden of proof, but also demonstrates Mrs. Anderson herself was negligent," defense papers said. Ms. Pinto reiterated that juries have found in three trials that Topamax is a teratogen, a substance that causes birth defects, and that its warnings aren't strong enough. "This third verdict shows that Janssen and Johnson & Johnson's defensive strategy of placing the blame on the mothers and the doctors is not going to work," Ms. Pinto said. JPMORGAN CHASE: Wins Final OK of Suit Over Force-Placed Insurance ----------------------------------------------------------------- On top of a $300 million settlement related to force-placed hazard insurance, JPMorgan Chase owes more than $20 million in attorneys' fees, reports Deshayla Strachan at Courthouse News Service, citing a federal court ruling. Salvatore Saccoccio represents a class of 762,390 people who claimed that the bank forced borrowers to buy inflated insurance policies in a scheme with a company called Assurant. The 2012 complaint alleged that Chase let Assurant force new coverage on the properties of borrowers in the event of a lapse or detection of insufficient coverage, in exchange for having Assurant insure its entire mortgage portfolio. Assurant paid Chase commissions on these policies, but the class said they were actually kickbacks. . . . alleged subsidiaries to cover its entire mortgage portfolio. In exchange for this policy, Chase granted Assurant the exclusive right to force new coverage on borrowers' properties in the event of lapse or the detection of insufficient coverage. In turn, Assurant provided with commissions or "kickbacks" on the policies and entered into exclusive reinsurance agreements with Chase. In July 2013, Chase agreed to pay $300 million to Saccoccio and the class of 762,390. It includes the class member will recover 12.5 percent of the net premium charged, less any refund made to them during the period. The settlement also imposes a six-year injunction against Chase and Assurant from inflating premiums imposed on mortgagors. U.S. District Judge Frederico Moreno gave the deal, which carries an additional $20 million for class counsel, preliminary approval in October and granted final approval. The 27-page opinion rejects 16 objections to the settlement, including one challenge to the process of having class members submit claims to receive compensation. Submitting claims is appropriate since the defendants said they would need a thousand people a month to identify class members by manually reviewing files. Saccoccio will take home a $5,000 service award, according to the ruling. The settlement agreement covers all borrowers nationwide who had a hazard insurance policy force-placed on residential property by Chase between Jan. 1, 2008, and Oct. 4, 2013, who either paid the premium of the policy to Chase or were charged a premium and still owe at least some portion of the premium. Force-placed insurance lawsuits have rocked banks like Chase across the country. The ability to force-place hazard insurance is a typical clause in most mortgage loan contracts, as it is considered a method of protecting the lender's interest in the secured property. In these cases, borrowers claim that the insurance provides a financial benefit to the banks or their affiliates and at rates that far exceed borrower-purchased hazard insurance, while providing substantially less coverage. A pending multidistrict litigation against five lenders, including Bank of America, CitiBank, Wells Fargo, HSBC Bank and Chase also accused the banking giants of forced-placed insurance. Judge Moreno noted that the case against Chase and Assurant was spun off from one against five lenders. The case is Salvatore Saccoccio, et al. v. JPMorgan Chase Bank, N.A., et al., Case No. 13-21107-CIV-MORENO, in the United States District Court for the Southern District of Florida, Miami Division. KANGADIS FOOD: Class Action Over Adulterated Olive Oil Can Proceed ------------------------------------------------------------------ Lisa Hoffman, writing for National Law Journal, reports that consumers who bought what they thought was 100 percent pure olive oil that allegedly contained a far cheaper substitute can press on with their class action against Kangadis Food Inc., a federal judge has ruled. U.S. District Judge Jed Rakoff of the Southern District of New York refused to grant summary judgment to Kangadis on March 5, and certified the plaintiffs as a class. The case is Joseph Ebin v. Kangadis Food Inc. The plaintiffs contend they and uncounted others in New York, New Jersey and perhaps other states relied on the "100 Percent Olive Oil" labels that appeared on five sides of the Capatriti tins in deciding to purchase the product. The complaint alleges that a scientific analysis of the contents found not pure olive oil but an industrially processed substance known as olive pomace oil, produced from olive pits and leftover skins and treated with chemical solvents to produce a largely tasteless oil that is higher in trans fats and lower in antioxidents. Pomace oil is also about half as costly as pure olive oil, the judge's memorandum says. The plaintiffs allege that Kangadis, a food import and distribution company, violated consumer protection laws and committed breaches of warranties. In its argument for summary judgment, Kangadis argued that pomace is, legally, olive oil and that plaintiffs cannot prove the tins they purchased did not contain 100 percent pure olive oil. L&B INDUSTRIAL: Class Suit Seeks Minimum and Overtime Wages ----------------------------------------------------------- Courthouse News Service reports that L&B Industrial and Apache Energy Services LLC, dba AES Safety Services, stiffed workers for overtime, paid less than minimum wage and violated other labor laws, a class action claims in Texas Federal Court. LEXISNEXIS RISK: Sued Over Unlawful Use of "Esteem" Database ------------------------------------------------------------ G. Tsang, individually and on behalf of classes of similarly situated individuals v. LexisNexis Risk Solutions Inc.; and First Advantage Background Services, Corp., Case No. 4:14-cv-00493-DMR (N.D. Cal., January 31, 2014) arises out of the alleged ownership, operation, and unlawful use of the "Esteem" "retail theft contributory database" by the Defendants, and the unlawful use of Esteem consumer reports by retail merchant members of the Esteem database, all to the detriment of the Plaintiff and the Class. The Esteem database is a database comprised exclusively of information derived from the input of participating retail merchants, specifically their detention records for alleged incidents of shoplifting, fraud, and theft. The vast majority, if not all, of the detention records in the database relate to alleged crimes that were never criminally prosecuted and for which no criminal conviction ever resulted. First Advantage purchased the Esteem database from LexisNexis in early 2013. LexisNexis Risk Solutions Inc. is a Georgia corporation headquartered in Atlanta, Georgia. First Advantage Background Services Corp. is a corporation headquartered and incorporated in the state of Florida. The Defendants have done business in the state of California by, among other things, providing consumer reports, including consumer reports at issue in this litigation, to California employers. The Plaintiff is represented by: Jeffrey F. Keller, Esq. Eric A. Grover, Esq. Carey G. Been, Esq. KELLER GROVER LLP 1965 Market Street San Francisco, CA 94103 Telephone: (415) 543-1305 Facsimile: (415) 543-7861 E-mail: jfkeller@kellergrover.com eagrover@kellergrover.com cbeen@kellergrover.com LIFELOCK INC: Faces Arizona Suit Alleging It Defrauded Investors ---------------------------------------------------------------- LifeLock Inc. defrauded investors, a class action claims in Arizona Federal Court, reports Courthouse News Service. LITTLE INDIA: Class Seeks to Recover Unpaid Overtime and Wages -------------------------------------------------------------- Santiago Torralba, Alejandro Zacatenco, On behalf of themselves and those similarly situated v. Little India Stores Inc., Little India Grocery Inc., Sushma Gupta, Shipra Doe, and Rajan Doe, Case No. 1:14-cv-00595-RMB (S.D.N.Y., January 31, 2014) alleges that the Plaintiffs are entitled to unpaid wages from the Defendants for their work, and for overtime work for which the Plaintiffs did not receive overtime pay. The Defendants owned and operated the Little India Stores during the relevant period. The Plaintiffs are represented by: Joshua Adam Butnick, Esq. LAW OFFICE OF JOSHUA A. BUTNICK P.C. 40 Wall St., 28th Floor New York, NY 10005 Telephone: (212) 362-1197 E-mail: JButnick@Butnicklaw.com MCDONALD'S CORP: Seven Class Actions Filed Over Wage Theft ---------------------------------------------------------- Justin Scuiletti, writing for PBS, reports that on March 13, seven class-action lawsuits were filed against McDonald's by employees who allege the company has committed wage theft violations. The suits, filed in New York, California and Michigan, claim the fast food giant made employees work off the clock, reduced hours on time cards and refused to pay workers for overtime. Additional claims specific to some of the suits allege that some workers were not getting timely brakes, receiving reimbursement for uniform cleaning or were not paid until customers came into the store -- even if the employees had been there earlier. If the allegations are true, such actions would stand in violation of the Federal Labor Standards Act, which, according to the Department of Labor, "establishes minimum wage, overtime pay, recordkeeping, and youth employment standards affecting employees in the private sector and in Federal, State, and local governments." In a statement, McDonald's says they are reviewing the allegations: "McDonald's and our independent owner-operators share a concern and commitment to the well-being and fair treatment of all people who work in McDonald's restaurants. We are currently reviewing the allegations in the lawsuits. McDonald's and our independent franchisees are committed to undertaking a comprehensive investigation of the allegations and will take any necessary actions as they apply to our respective organizations." MINNESOTA: Attorney Files Class Action Over Driving Classes ----------------------------------------------------------- Abby Simons, writing for StarTribune, reports that a Minnesota attorney has filed a class-action lawsuit demanding that 36 law enforcement agencies refund the proceeds garnered from offering safe driving classes in lieu of traffic tickets. Attorney Erick Kaardal on March 13 announced the lawsuit filed in southeast Minnesota's Third Judicial District on behalf of nine plaintiffs who seek to have money paid the program returned to them and other Minnesotans who have taken similar classes. The 90- page complaint that alleges law enforcement agencies participated in "false representation" by claiming the classes were legal when they weren't. The classes are the subject of at least three bills currently circulating in the Minnesota Legislature. Two bills seek to pull the classes into conformity with state law, while a third looks to deem them illegal. District Judge James Fabian ordered the Wabasha County sheriff's safe driving class to a halt after two county commissioners sued, alleging that law enforcement for years flouted a state law that prohibits such classes. Judge Fabian called the program "a continued and repeated trespass on the laws of the state of Minnesota." The programs allow drivers to keep tickets off their records in exchange for paying to take a class ranging in price from $75-125. From 2010 to 2012, such classes raised about $1.6 million, according to a report by State Auditor Rebecca Otto. While about a third of the proceeds from most traffic tickets go to the state, most jurisdictions kept all of the fees generated from their classes. Ms. Otto repeatedly warned that such "off the books" alternatives were illegal. In the two months since Fabian's ruling, most of the remaining cities and counties closed similar safe driving classes. However, nine remain in operation. Mr. Kaardal demands more than $1 million on behalf of his clients and is seeking more to join the class. MOY TOY: Removed "Eagles" Suit to Middle District of Tennessee -------------------------------------------------------------- The class action lawsuit titled Eagles Nest, LLC, et al. v. Moy Toy, LLC, et al., Case No. 2013-CH-717, was removed from the Chancery Court of Cumberland County, Tennessee, to the U.S. District Court for the Middle District of Tennessee (Cookeville). The District Court Clerk assigned Case No. 2:14-cv-00010 to the proceeding. The Plaintiffs are represented by: David T. Black, Esq. Melanie E. Davis, Esq. KIZER & BLACK, PLLC 329 Cates Street Maryville, TN 37801-4903 Telephone: (865) 980-1609 Facsimile: (865) 980-1640 E-mail: peggys@usit.net mdavis@kizer-black.com The Defendants are represented by: Gregory C. Logue, Sr., Esq. Lindy Degnan Harris, Esq. WOOLF, MCCLANE, BRIGHT, ALLEN & CARPENTER, PLLC 900 Riverview Tower 900 S. Gay Street Knoxville, TN 37902 Telephone: (865) 215-1000 Facsimile: (865) 215-1001 E-mail: logueg@wmbac.com lharris@wmbac.com NATIONAL COLLEGIATE: Limits Aid to College Athletes, Suit Says -------------------------------------------------------------- Jon Chown, writing for Courthouse News Service, reports that The National Collegiate Athletic Association (NCAA) and its five biggest football conferences collude to limit financial aid to college athletes at far below market levels, a former running back for the West Virginia Mountaineers claims in a California federal antitrust class action. Shawne Alston sued the NCAA, the Pac 12, the Big Ten, the Big 12, the Southeastern Conference and the Atlantic Coast Conference, in a 120-page lawsuit. His lead counsel is Jon T. King, with Hagens Berman Sobol Shapiro, of Berkeley. Alston claims that the NCAA and its power conferences violate the Sherman antitrust Act by colluding to cap the financial aid given to players at a level below what it costs them to attend college, and far below what the competitive market would pay. He seeks two specific remedies: an injunction to restrain the NCAA and its power conferences from continuing to limit financial aid at its current level; and damages for the difference between the grants-in-aid awarded and the cost of attendance. Alston played running back for the Mountaineers from 2009-2012. According to the lawsuit, he had to borrow more than $5,000 to cover the difference between his scholarship and what it cost to attend school. He wants the power football schools to be ordered, or at least able, to include the actual cost of attendance, and possibly more, in their scholarships. "Division I football . . . generates billions of dollars a year in revenue. Not a single dollar of that revenue, however, would exist if it were not for the efforts of the . . . football players themselves," the complaint states. Alston then lists the eye-popping revenue reported by some top football programs for the 2011-12 season: Texas with $109 million in revenue and $82 million in profit; Michigan with $85 million in revenue and $59 million in profit; and Alabama with $82 million in revenue and $47 million in profit. The top five revenue-producing football programs include Auburn, with $77 million in revenue and $39 million in profit, and Georgia, with $75 million in revenue and $51 million in profits, according to the complaint. According to Alston's figures, the top five football schools enjoy a more than healthy 65 percent profit margin from their football programs: reporting $277 million in combined profits from $428 million in combined revenue. "While players scrimp, coaches and universities most certainly do not," Alston says in the complaint. "The average salary for major college football coaches is over $2 million, with some coaches earning over $7 million." Alston observes that Alabama Coach Nick Saban, who makes $7 million, was given a $1.5 million raise that would have translated to $17,000 for each player on his team on scholarship. Assistant coaches are making as much as $4 million per year, conference commissioners are making millions per year and athletic directors are also bringing home giant paychecks. NCAA officials do quite well, too, according to the complaint, which says that NCAA President Mark Emmert earns $1.67 million per year. All of this is possible due to enormous television contracts. ESPN and other networks pay billions of dollars for rights to broadcast games, while players struggle to make ends meet, and can lose their scholarships and their right to play at all for something so simple as accepting a junker car from a booster, to get to practice. Many coaches and others in NCAA leadership have even acknowledged the problem. The lawsuit cites more than a decade of such comments. It claims that Emmert said in December 2013: "We've been working on that for 2� years. They were talking about that long before I showed up. We don't need a lawsuit to do the right thing. That's important for people to know." Citing the "robust competition" among the schools and conferences to recruit players, Alston suggests that this robust system be enlarged, in line with antitrust law, so that the conferences "compete among themselves . . . as to the financial aid terms that conference members will make available to college football players. Such incremental competition would allay the fears (even though unfounded) of those that decry the repercussions of an instantaneous transition to a wide-open free market, with every school making its own independent decisions." Co-counsel includes attorneys with Pearson, Simon & Warshaw, of San Francisco. The Plaintiff's lead counsel is: Jon T. King, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 715 Hearst Ave., Suite 202 Berkeley, CA 94710 Telephone: (510) 725-3000 Facsimile: (510) 725-3001 E-mail: jonk@hbsslaw.com NESTLE USA: Alleged Chocolate Cartel Wins Favorable Judgment ------------------------------------------------------------ Writing for Courthouse News Service, Rose Bouboushian reports that a federal judge melted down claims that Hershey, Mars and Nestle ran a $726 million chocolate cartel, finding that "nothing scandalous or improper has been discovered." The multidistrict litigation sprang from 91 separate civil actions first brought in 2007 against Hershey, Mars, Nestle and Cadbury. Cadbury settled for $1.3 million and was dismissed from the case in 2011, and a year later U.S. District Judge Christopher Conner certified a class of direct purchasers: those who directly purchased standard and king-size candy bars for resale from the defendants. An expert for the plaintiffs had estimated damages at $726 million. The confectioneries later moved for summary judgment as to the direct-purchaser class and the individual purchaser plaintiffs. The latter include major supermarkets and pharmacies like Kroger, Safeway, CVS and Rite Aid, but a civil action from Associated Wholesale Grocers is not included. After mediation proved unsuccessfully this fall, Conner granted the motions on Feb. 26. Hershey and the others may have upped prices "with awareness of their competitors' pricing decisions," and may have been "influenced or motivated" by their competitors' actions, but other variables were also at play, according to the ruling. These factors include rising input costs, like raw materials, labor, health and energy costs. The judge tossed aside the claim that the chocolatiers relied solely on "an attractive opportunity for us to catch people by surprise," as one top Mars executive put it. "The overt evidence before the court establishes that defendants' actions, while parallel, were nonetheless the result of reasoned, independent business mindedness," Conner wrote. "Quite simply, plaintiffs have failed to establish that defendants' actions were unreasonable or irrational in the competitive market." Although Canadian affiliates of the defendants were charged in a price-fixing scheme to which Hershey Canada pleaded guilty last June, Conner said the purchasers failed to show "any tie" between the Canadian and American goings-on. (Emphasis in original.) "Initially, plaintiffs' claims of a domestic price-fixing conspiracy were quite plausible," Conner wrote. "The Canadian trade spend conspiracy raised the specter of Sherman Act violations in our contiguous marketplace." He added: "Despite diligent efforts on the part of plaintiffs' counsel and nearly unfettered access to defendants' records, plaintiffs are before the court with nothing more than speculation as to the who, what, when, where, and how of the communications that allegedly facilitated the parallel price increases. Nothing scandalous or improper has been discovered within our borders, and no evidence permits a reasonable inference of a price-fixing agreement." The original four defendants controlled more than 80 percent of the $16 billion U.S. chocolate market in 2006, and half the world market, according to one 2007 class action filed in New Jersey. Conner's ruling makes no mention of indirect purchasers, a portion of the action in which he reopened discovery in August. The case is In Re: Chocolate Confectionary Antitrust Litigation, Case No. 1:08-mdl-01935-CCC, in the United States District Court for the Middle District of Pennsylvania. NORTHWESTERN MGMT: Fails to Pay Proper OT, Dental Assistant Says ---------------------------------------------------------------- Michelle Findlay Lindo, on her own behalf and all similarly situated individuals v. Northwestern Management Services, LLC d/b/a Gentle Dental, a Florida Limited Liability Corporation, Case No. 0:14-cv-60263-FAM (S.D. Fla., February 1, 2014) alleges that during the Plaintiff's employment, the Defendant failed to compensate her and similarly situated non exempt dental assistants at rate of one and one-half times her regular rate for all hours worked in excess of 40 hours in a single work week. Northwestern Management Services, LLC, doing business as Gentle Dental, is a Florida Limited Liability Corporation engaged in business in Florida, with a place of business in Broward County. The Plaintiff is represented by: Elliot Kozolchyk, Esq. KOZ LAW, P.A. 320 S.E. 9th Street Fort Lauderdale, FL 33316 Telephone: (786) 924-9929 Facsimile: (786) 358-6071 E-mail: ekoz@kozlawfirm.com - and - Richard Celler, Esq. CELLER LEGAL GROUP 7450 Griffin Road, Suite 230 Davie, FL 33314 Telephone: (954) 243-4295 Facsimile: (954) 337-2771 E-mail: richard@floridaovertimelawyer.com PEPSICO INC: Faces "Sciortino" Suit Over Pepsi's Caramel Coloring ----------------------------------------------------------------- Stacy Sciortino and Arielle Weinstock, Individually and on Behalf of All Others Similarly Situated v. Pepsico, Inc., Case No. 3:14- cv-00478-EMC (N.D. Cal., January 31, 2014) seeks to recover damages and remedy in connection with Pepsi's continuing failure to warn individuals in California of their exposure to the dangerous chemical 4-Methylimidazole when consuming Pepsi's products: Pepsi, Diet Pepsi, and Pepsi One. 4-methylimidazole (4-MEI) is a chemical compound that forms during the manufacturing of certain types of caramel coloring (known as Class III and Class IV caramel coloring) that are used to color cola-type beverages and other foods. On United States product labels it appears simply as "caramel coloring." 4-MEI is a chemical known to cause cancer and is contained in the Products in an amount sufficient to expose California consumers to substantial health risks. PepsiCo, Inc. is a North Carolina corporation headquartered in Purchase, New York. The Company manufacturers, distributes, markets, advertises, and sells the Products throughout California and the rest of the United States. The Plaintiffs are represented by: Christopher M. Burke, Esq. Hal D. Cunningham, Esq. SCOTT+SCOTT, ATTORNEYS AT LAW, LLP 707 Broadway, Suite 1000 San Diego, CA 92101 Telephone: (619) 233-4565 Facsimile: (619) 233-0508 E-mail: cburke@scott-scott.com hcunningham@scott-scott.com - and - Joseph P. Guglielmo, Esq. SCOTT+SCOTT, ATTORNEYS AT LAW, LLP The Chrysler Building 405 Lexington Avenue, 40th Floor New York, NY 10174 Telephone: (212) 223-6444 Facsimile: (212) 223-6334 E-mail: jguglielmo@scott-scott.com - and - David R. Scott, Esq. SCOTT+SCOTT, ATTORNEYS AT LAW, LLP 156 South Main Street P.O. Box 192 Colchester, CT 06415 Telephone: (860) 537-5537 Facsimile: (860) 537-4432 E-mail: david.scott@scott-scott.com - and - Stanley D. Saltzman, Esq. Marcus J. Bradley, Esq. William A. Baird, Esq. Kiley L. Grombacher, Esq. MARLIN & SALTZMAN, LLP 29229 Canwood Street, Suite 208 Agoura Hills, CA 91301 Telephone: (818) 991-8080 Facsimile: (818) 991-8081 E-mail: ssaltzman@marlinsaltzman.com mbradley@marlinsaltzman.com tbaird@marlinsaltzman.com kgrombacher@marlinsaltzman.com - and - Marcus Joseph Bradley, Esq. SCHWARTZ, DANIELS & BRADLEY 29229 Canwood Street Agoura Hills, CA 91301 Telephone: (310) 478-5838 Facsimile: (310) 478-1232 E-mail: mbradley@marlinsaltzman.com The Defendant is represented by: Christopher Chorba, Esq. GIBSON, DUNN & CRUTCHER LLP 333 South Grand Avenue Los Angeles, CA 90071 Telephone: (213) 229-7000 Facsimile: (213) 229-7520 E-mail: cchorba@gibsondunn.com PFIZER INC: Faces "Lemaire" Suit in Louisiana Over Lipitor Drug --------------------------------------------------------------- Rebecca Lemaire and Brian Lemaire, 108 Lapin Road, Breaux Bridge, Louisiana 70571 v. Pfizer Inc., 235 East 42nd Street, New York, New York 10017, Case No. 6:14-cv-00155-RFD-CMH (W.D. La., January 31, 2014) is an action for damages suffered by the Plaintiff as a proximate result of the Defendant's alleged negligent and wrongful conduct in connection with the design, testing, and labeling, of Lipitor (also known chemically as Atorvastatin Calcium). Lipitor is prescribed to reduce the amount of cholesterol and other fatty substances in the blood. Lipitor is an HMG-CoA reductase inhibitor and a member of the drug class known as statins. New York-based Pfizer Inc. produces, mafnufactures, distributes, advertises, promotes, supplies and sells Lipitor to distributors and retailers for resale to physicians, hospitals, pharmacies, and medical practitioners. The Plaintiffs are represented by: Stephen J. Herman, Esq. HERMAN HERMAN & KATZ LLC 820 O'Keefe Avenue New Orleans, LA 70113 Telephone: (504) 581-4892 Facsimile: (504) 561-6024 E-mail: Sherman@hhklawfirm.com - and - Robert K. Jenner, Esq. Lindsey M. Craig, Esq. JANET, JENNER & SUGGS, LLC 1777 Reisterstown Road, Suite 165 Baltimore, MD 21208 Telephone: (410) 653-3200 Facsimile: (410) 653-9030 E-mail: RJenner@myadvocates.com LCraig@myadvocates.com POWER & LIGHT: Faces Class Action Over Racial Discrimination ------------------------------------------------------------ Lawyer Herald reports that on March 10, in federal court, a class- action lawsuit has been brought against the owners of Kansas City's Power & Light Entertainment District over allegations that tactics against African-Americans are being done to limit the number of tenants of their kind at the district, the Kansas City Star said. Dante AR Combs and Adam S Williams, who leads the lawsuit, claimed that there were three instances that happened between 2010 or 2011 wherein the two experienced racial discrimination despite the fact that they both wore proper attire and were in their best conduct. Combs and Williams said in the lawsuit that they were denied admission or were singled out to be harassed in nightclubs within the entertainment district. Lawyer Linda Dickens, who represents another plaintiff, former Power & Light Entertainment District employee Glen Cusimano, said that his client had an altercation with a rabbit, or a street term used to label Caucasian men hired to create a disturbance for the sole purpose of having African-Americans arrested or ejected from the area. Ms. Dickens added that his client was fired as a result of the altercation. "(African-Americans, more frequently than members of other races), suffered injuries including, but not limited to: inconvenience, insult, humiliation, embarrassment, emotional distress and other actual damages, which in sum exceed $5 million," the lawsuit claimed. The Cordish Cos officials, whose company owns and operates the entertainment district, had said that the lawsuit was baseless, The Kansas City Star had quoted them. Asset Management director Zed Smith, whose company is an affiliate of Cordish, said, "We all work collaboratively to ensure that the guest experience is excellent for all of our customers. We take pride in our customer service and the customer service of our tenants, and we vigorously deny this trumped-up and meritless claim." The Kansas City Star noted that the district earlier received a discrimination complaint in 2009 regarding the area's dress code. Although Cordish has denied the allegations, the company modified the district's dress code, and a settlement was reached in 2010. PUDA COAL: Judge Dismisses Securities Class Action -------------------------------------------------- Jan Wolfe, writing for The Litigation Daily, reports that a federal judge in Manhattan on March 11 dismissed a class action lawsuit alleging that a unit of CITIC Group Corporation, a massive state-owned Chinese investment company, facilitated securities fraud on the part of Puda Coal Inc. Puda Coal was a U.S.-listed Chinese company that collapsed in an accounting scandal in 2011, triggering a slew of shareholder class actions and a U.S. Securities and Exchange Commission lawsuit. Puda Coal's chairman, Ming Zhao, is alleged to have transferred the company's most important subsidiary to himself and then forged documents to conceal the scheme from shareholders. As Barron's reported, CITIC loaned money to Zhao before its collapse, but the investment giant wasn't targeted in the SEC complaint. In April 2013 a Puda shareholder represented by the Rosen Law Firm filed class action claims against CITIC Group subsidiary CITIC Trust Co., alleging that it aided and abetted Puta Coal's deceit in violation of U.S. securities laws. CITIC's lawyer, Carl Oberdier -- cwo@oberdier.com -- of the small Manhattan firm Oberdier Ressmeyer, moved to dismiss on jurisdictional grounds. Mr. Oberdier also argued that the shareholder failed to point to any evidence that CITIC knowingly or negligently assisted Zhao's scheme. U.S. District Judge Katherine Forrest adopted both arguments in the March 11 ruling. She concluded that she doesn't have jurisdiction over CITIC, because its conduct wasn't aimed at the U.S. and it didn't aid Puda Coal "in a manner that might have some effect in the United States." She also concluded that the facts alleged in the complaint "are equally consistent with CITIC's ignorance of Zhao's fraud." RANCHO FEEDING: Health Officials Issue Recall for Beef Jerky ------------------------------------------------------------ The Associated Press reports that health officials have issued another recall for a food product processed by a Northern California slaughterhouse. The Monterey County Health Department said in a statement on March 17 that it was recalling Krave Jerky's garlic chili pepper beef jerky processed at Rancho Feeding Corporation in Petaluma, Calif. The agency said it was recalling the 3.25-ounce jerky product because of safety concerns. The product was distributed nationwide and will bear the mark "EST 18951." Rancho Feeding Corporation halted operations last month after a series of recalls, including one on Feb. 10 for 8.7 million pounds of beef that had been processed from diseased animals without a complete inspection. Health officials have not received any reports of illness caused by the products. REAL CHINESE: Suit Seeks to Recover Damages for Unpaid OT Wages --------------------------------------------------------------- Carlos Zevallos, and other similarly-situated individuals v. Real Chinese Food Corporation d/b/a China Wok Take Out Leon Chau Yuen a/k/a Leo Yuen, Ye Zhou Chiao Xiaojun a/k/a Iza, Individually, Case No. 1:14-cv-20400-CMA (S.D. Fla., January 31, 2014) seeks to recover money damages for unpaid overtime wages under the laws of the United States. Real Chinese Food Corporation, doing business as China Wok Take Out, is a Florida corporation, having its main place of business in Miami-Dade County, Florida, where the Plaintiff worked. The Individual Defendants are directors or owners of China Wok. The Plaintiff is represented by: Zandro E. Palma, Esq. ZANDRO E. PALMA, P.A. 3100 South Dixie Highway, Suite 202 Miami, FL 33133 Telephone: (305) 446-1500 Facsimile: (305) 446-1502 E-mail: zep@thepalmalawgroup.com The Defendants are represented by: Peter Theodore Mavrick, Esq. PETER T. MAVRICK PA 1620 W Oakland Park Boulevard, Suite 300 Fort Lauderdale, FL 33311 Telephone: (954) 564-2246 E-mail: peter@mavricklaw.com SASKATCHEWAN: SARM Mulls Suit Over Land Transfer Agreements ----------------------------------------------------------- Austin M. Davis, writing for The Regina Leader-Post, reports that confusion over 79-year-old land transfer agreements has the Saskatchewan Association of Rural Municipalities (SARM) threatening the provincial government with a class-action lawsuit. Despite the strong language in a resolution passed on March 11 at SARM's annual convention, both sides would rather resolve the matter over Prairie Farm Rehabilitation Act (PFRA) pastures through discussions over legal action. "That's the last resort. I'm positive we can sit down and discuss things and work things out," said Fred Baran, a councillor in the RM of Dundurn. PFRA operated 61 pastures in Saskatchewan, covering 1.78 million acres. The community pastures system was originally created to rehabilitate land affected by severe drought and soil erosion. The land is being transferred from the federal government to the province. The March 11 resolution on PFRA pastures was brought forward by the RMs of Mount Hope, Reno and Heart's Hill. Mr. Baran addressed his concerns during a bear-pit session with provincial cabinet on March 12. He produced minutes from a 1939 Land Utilization Board (LUB) meeting that said if the transferred land was no longer being used for a specific purpose, "that the rural municipality be offered a lease on these lands or on their request the title be transferred back to them." Some of the 61 pastures have already been transferred, but the lands around Dundurn are still in federal control. Mr. Baran wants to see Dundurn's 34 quarter sections of land returned to patrons within the municipality to give aspiring cattle farmers a low-cost way to enter the business. Premier Brad Wall said his government has explored ways to turn Crown land over to producers since 2007. "The government has a significant holding of land in this province, and I'm not sure that's the role of government, but some of it's very important in terms of the livestock business. And longstanding arrangements, we'll respect those," Mr. Wall said. Lyle Stewart, minister of agriculture, responded twice to Mr. Baran's questions and comments. When the session was over, they met privately to discuss Mr. Baran's concerns and the LUB minutes. "Part of the problem is the length of time since these lands were transferred," Mr. Stewart said. "In this case, it seems to be a matter of RM notes, and in some cases minutes of meetings, differing from the provincial and federal take on what happened. We're just not sure. Nobody here is trying to be unreasonable." As the federal government reverts ownership of pasture lands back to the province, Stewart said the plan is to lease them to patron groups. Mr. Stewart is hopeful resolving the issue won't require a lawsuit. Saskatchewan will have control of all 61 pastures by 2018. SEASIDE ROOFING: Fails to Pay Proper Overtime Rate, Laborer Says ---------------------------------------------------------------- Rogelio Tamanis, on behalf of himself and all similarly situated individuals v. Seaside Roofing, Inc., a Florida corporation; and Joseph W. Snyder, individually, Case No. 2:14-cv-14044-JEM (S.D. Fla., January 31, 2014) is brought on behalf of similarly situated laborers of the Defendants, who performed more than 40 hours of work on and off the clock but were not paid one and one half times their hourly rate for all hours worked beyond 40 within any work week. Seaside Roofing, Inc., is a Florida for Profit Corporation with its principal place of business in Martin County, Florida. The Company does business as a roof repair and installation contractor, ordering fabricating and installing goods made in Intra-state commerce and selling the goods and services to customers. Joseph W. Snyder is the majority shareholder, officer, director or manager of the Company. The Plaintiff is represented by: Christopher C. Copeland, Esq. CHRISTOPHER C COPELAND, P.A. 824 W Indiantown Rd. Jupiter, FL 33458 Telephone: (561) 691-9048 Facsimile: (866) 259-0719 E-mail: Chris@CopelandPA.com ChrisCopeland@MyFloridaCounsel.com SINGAPORE AIRLINES: Settles Class Action in Australia ----------------------------------------------------- Kevin Lim, writing for Channel News Asia, reports that Singapore Airlines Cargo has settled a class action suit in Australia and will make a financial provision of approximately S$6 million in its current financial year. "Under the terms of the proposed resolution, Singapore Airlines Cargo in no way admits any wrongdoing or liability with regard to any claims made in the action," the cargo arm of Singapore Airlines said in a statement on March 14. The terms of the proposed resolution are confidential and subject to the approval of the Federal Court of Australia, SIA Cargo added. The suit against SIA Cargo and a group of other airlines in Australia started in 2007 following competition investigations in the air cargo sector. SONIC DRIVE-IN: Accused of Making Employees Work Off the Clock -------------------------------------------------------------- Courthouse News Service reports that Sonic Drive-In makes employees work off the clock and illegally deducts presumed tips from their paychecks, a class action claims in Alabama Federal Court. SOUTHERN RESPONSE: Canterbury Homeowners Attend Meeting ------------------------------------------------------- Georgina Stylianou, writing for stuff.co.nz, reports that constant delays, a lack of control and sheer frustration have prompted about 200 Canterbury homeowners to attend a meeting about a class action against Southern Response. Christchurch law firm GCA Lawyers, headed by Grant Cameron, has taken on the case which claims breach of contract by way of unjustifiable delays in processing and settling earthquake claims. Many people spoken to by The Press at the meeting, held at the Westpac Business Hub on March 13, said they still did not know if their homes would be rebuilt or repaired. Jenny and Ron Harris spent about $200,000 making alterations to their Mount Pleasant home with a view to sell and downsize for their retirement. The earthquakes "wrecked it", Ron Harris said, and negotiations with their insurer had so far failed to reach a satisfactory outcome. Like many other claimants, class action was seen as a last resort. "But we've just had enough," Jenny Harris said. Mr. Cameron told the claimants that a class action against their insurer "is the mechanism that will break this impasse". Class actions were "big and ugly from a defendant's point of view", he said. Southern Response would not like any court action that included "interpretation of policies", he said, and could move to settle rather than have a court decision "set a precedent for hundreds of other claimants". Graham Bloomfield, spokesman for the Honour Your Policy Action group that has brought the action, urged frustrated policy holders "not to be intimidated". Some homeowners believed joining the legal fight could "further threaten their position". "We need to readdress the balance of power," he said. STERLING JEWELERS: Judge Dismisses Gender Discrimination Claim -------------------------------------------------------------- John Caher, writing for New York Law Journal, reports that a major gender discrimination claim involving some 44,000 women and the nation's largest speciality retail jeweler has been dismissed because the Equal Employment Opportunity Commission failed to prove that it conducted a nationwide investigation before accusing Sterling Jewelers of violating its employees' rights. Western District Judge Richard Arcara last week embraced a magistrate judge's report castigating the EEOC for not fully investigating the claims and attempting to introduce evidence it had withheld from the company in discovery. Magistrate Judge Jeremiah McCarthy also found it "more than a little ironic" for the EEOC to accuse Sterling of stonewalling when it repeatedly erected roadblocks to the company's efforts to obtain information. Equal Employment Opportunity Commission v. Sterling Jewelers, 09-cv-00706, began about nine years ago when 19 female employees at stores in New York and seven other states filed charges with the EEOC alleging they were denied equal pay and promotion opportunities because of their gender. Their claims were investigated out of the EEOC's Buffalo office and resulted in an action in 2008 accusing the company of unlawful employment practices throughout its nationwide network of 1,700 stores, including the Kay Jewelers chain. Sterling moved for summary judgment, arguing that EEOC's claims of nationwide discrimination could not stand without evidence of a nationwide investigation of the company's employment practices. Judge McCarthy agreed in a report affirmed by Judge Arcara. At the outset, Judge McCarthy addressed the EEOC's claim that the courts had no business inquiring into the sufficiency of its probes. Here, the magistrate judge said the question wasn't so much whether EEOC conducted a credible nationwide investigation, but whether it conducted a nationwide investigation at all. Congress has tasked the EEOC with enforcing Title VII of the Civil Rights Act, which prohibits private employers from discriminating against employees based on gender, race and religion. That same landmark statute imposes a heightened duty on the agency to investigate its claims prior to filing suit and also requires a good-faith effort to meet and negotiate a resolution with the defendant. Judge McCarthy said the EEOC bore the burden of proving that it satisfied all necessary conditions to filing a claim, including the administrative obligation to fully investigate. He said that in this case, EEOC admitted it had "little investigative material in the files" and that the investigator had little recollection of what his probe several years earlier had entailed. The magistrate judge said that while the EEOC accuses Sterling of "gamesmanship" and attempting to divert the court's attention from the merits of the claims, "it ignores the fact that the absence of a nationwide pre-suit investigation is a defense to the EEOC's nationwide pattern-or-practice claim." Judge McCarthy also took exception to the EEOC's assertion that "Sterling stonewalled the EEOC at every turn" in its attempt to obtain nationwide pay and promotion data. He said the agency made a tactical decision not to subpoena information from Sterling and to rely instead on a statistical analysis prepared by its expert. Judge McCarthy said the agency, despite his warnings, attempted to use that data against Sterling after refusing to disclose it in discovery. "On June 26, 2013, I again warned that the EEOC 'can't use a privilege as both a sword and a shield,'" McCarthy wrote in the report adopted by Judge Arcara. "[T]he EEOC may not now oppose Sterling's motion for summary judgment by relying upon the information which it withheld from Sterling in discovery." In recommending summary judgment, Judge McCarthy said, "the EEOC has already had one opportunity to conduct a pre-suit investigation and to provide discovery as to the scope of that investigation. Once is enough." Anna Marie Pohl, an attorney with the EEOC's district office in Manhattan and lead counsel in the case, said the agency maintains that it conducted a full, nationwide investigation. "We are exploring our options," she said. In a brief asking Judge Arcara to reject the report, EEOC trial attorney Konrad Batog argued judicial review of the agency's investigative efforts is not permitted. "Allowing review of the EEOC's investigation invites endless disputes about the details of the investigation and shifts the focus away from the alleged discrimination at issue," Mr. Bartog wrote. Gerald Maatman Jr., a partner at Seyfarth Shaw and lead counsel for Sterling, said the ruling has implications for employers nationwide "because the issue is what are the rules and obligations of the government when it sues in the public interest." "When the EEOC files a lawsuit the scope of the lawsuit can't exceed the scope of the pre-lawsuit investigation," said Mr. Maatman, who works in the Chicago and New York offices and concentrates on defense of employment discrimination claims. "You cannot file a lawsuit and then fish for more theories, fish more claimants and make the lawsuit bigger than the pre lawsuit investigation." Also representing Sterling were Jeffrey Klein -- jeffrey.klein@weil.com -- of Weil, Gotshal & Manges in Manhattan and Scott Horton -- shorton@jaeckle.com -- of Jaeckle Fleischmann & Mugel in Buffalo. By adopting Judge McCarthy's recommendations, Judge Arcara has handed the EEOC the latest in a string of losses. The agency saw a pregnancy bias case against Bloomberg LP unravel in September, after a judge concluded that EEOC lawyers didn't put Bloomberg on fair notice of the claims or try to negotiate prior to filing suit. A month earlier, CRST Van Expedited Inc. won a substantial attorney fee award from the EEOC in a case where a judge faulted the agency for using the discovery process to find potential plaintiffs. The EEOC was also dealt a loss last year in a similar case against the Freeman Companies. The EEOC did get some good news last month, however, when the U.S. Court of Appeals for the Seventh Circuit ruled that failure on the agency's part to mediate with defendants shouldn't constitute grounds for dismissal of a subsequent lawsuit. TAKEDA PHARMACEUTICAL: Faces Antitrust Suit Over ACTOS, ACTOSplus ----------------------------------------------------------------- International Union of Operating Engineers Local 132 Health and Welfare Fund, Individually and on Behalf of All Others Similarly Situated v. Takeda Pharmaceutical Co. Ltd.; Takeda America Holdings, Inc.; Takeda Pharmaceuticals, U.S.A., Inc.; Takeda Development Center Americas, Inc.; Mylan, Inc.; Mylan Pharmaceuticals Inc.; Actavis Plc F/K/A Actavis, Inc.; Watson Laboratories, Inc.; Ranbaxy Laboratories, Ltd.; Ranbaxy, Inc.; Ranbaxy Pharmaceuticals, Inc.; Teva Pharmaceutical Industries, Ltd.; and Teva Pharmaceuticals USA, Inc., Case No. 1:14-cv-00644- RA-RLE (S.D.N.Y., January 31, 2014) is an antitrust action in connection with the alleged restraint of competition in the market for ACTOS and ACTOSplus. The lawsuit arises out of the Defendants' alleged overarching anticompetitive scheme to allocate, and unreasonably delay competition in, the market for pioglitazone hydrochloride tablets, which Takeda sells under the brand name ACTOS, and further anticompetitive agreements between Takeda and each of Mylan and Teva to allocate, and unreasonably delay competition in, the market for the fixed dose combination product containing both pioglitazone hydrochloride and metformin (biguanide), which Takeda sells under the brand name ACTOplus met. Doctors prescribe ACTOS for the improvement of glycemic control in patients with Type 2 diabetes, either as a monotherapy treatment or as a combination therapy consisting of two separate drugs -- pioglitazone hydrochloride together with sulfonylurea, metformin, or insulin. Doctors prescribe ACTOplus met as a fixed dose combination of pioglitazone hydrochloride and metformin to improve blood sugar control in adults with Type 2 diabetes who are already either taking ACTOS and metformin separately or taking metformin alone and it is not controlling blood glucose at normal levels. Takeda Pharmaceutical Company Limited is a Japanese company headquartered in Osaka, Japan. Takeda America Holdings, Inc. is a wholly-owned subsidiary of Takeda Pharmaceutical Company Limited and the United States parent corporation of Takeda Pharmaceuticals U.S.A., Inc. and Takeda Development Center Americas, Inc. Takeda America Holdings, Inc. is a New York corporation based in New York City. Takeda Pharmaceuticals U.S.A., Inc., formerly known as Takeda Pharmaceuticals North America, Inc., is a Delaware corporation headquartered in Deerfield, Illinois. Takeda Development Center Americas, Inc., formerly known as Takeda Global Research and Development Center, Inc., is a Delaware corporation also headquartered in Deerfield, Illinois. The Plaintiff is represented by: John A. Kehoe, Esq. GIRARD GIBBS LLP 711 Third Avenue, 20th Floor New York, NY 10017 Telephone: (212) 798-0159 Facsimile: (212) 867-1767 E-mail: jak@girardgibbs.com - and - Daniel C. Girard, Esq. Dena C. Sharp, Esq. Scott M. Grzenczyk, Esq. GIRARD GIBBS LLP 601 California Street, 14th Floor San Francisco, CA 94108 Telephone: (415) 981-4800 Facsimile: (415) 981-4846 E-mail: dcg@girardgibbs.com chc@girardgibbs.com smg@girardgibbs.com - and - Peter Safirstein, Esq. Domenico Minerva, Esq. MORGAN & MORGAN 28 West 44th Street, Suite 2001 New York, NY 10036 Telephone: (212) 564-1637 E-mail: psafirstein@forthepeople.com dminerva@forthepeople.com The Takeda Entities are represented by: Jeffrey Ira Weinberger, Esq. MUNGER, TOLLES & OLSON (LA) 355 South Grand Avenue, 35th Floor Los Angeles, CA 90071-1560 Telephone: (213) 683-9127 Facsimile: (213) 683-5127 E-mail: jeffrey.weinberger@mto.com Actavis PLC, formerly known as Actavis, Inc., and Watson Laboratories, Inc. are represented by: Steven Craig Sunshine, Esq. SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP (DC) 1440 New York Avenue N.W. Washington, DC 20005 Telephone: (202) 371-7000 E-mail: steve.sunshine@skadden.com - and - Karen Hoffman Lent, Esq. SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP (NYC) Four Times Square New York, NY 10036 Telephone: (212) 735-3000 Facsimile: (917) 777-3276 E-mail: karen.lent@skadden.com The Teva Entities are represented by: Joseph Serino, Jr., Esq. KIRKLAND & ELLIS LLP (NYC) 601 Lexington Avenue New York, NY 10022 Telephone: (212) 446-4913 Facsimile: (212) 446-6460 E-mail: jserino@kirkland.com TARGET CORP: Faces "Crawford" Suit in Tennessee Over Data Breach ---------------------------------------------------------------- Jerry Crawford, on behalf of himself and all others similarly situated v. Target Corporation, Case No. 2:14-cv-02071-SHM-dkv (W.D. Tenn., January 31, 2014) arises from the data breach at Target stores in late 2013. The Plaintiff is represented by: David A. McLaughlin, Esq. Peter B. Gee, Jr., Esq. MORGAN & MORGAN-MEMPHIS, LLC 40 S. Main Street, Suite 2600 One Commerce Square Memphis, TN 38103 Telephone: (901) 217-7000 Facsimile: (901) 333-1897 E-mail: dmclaughlin@forthepeople.com pgee@forthepeople.com - and - John A. Yanchunis, Esq. Tamra Givens, Esq. MORGAN & MORGAN COMPLEX LITIGATION GROUP 201 North Franklin Street, 7th Floor Tampa, FL 33602 Telephone: (813) 223-5505 Facsimile: (813) 223-5402 E-mail: jyanchunis@forthepeople.com tgivens@forthepeople.com TOYS DISTRIBUTION: Inspectors Found Unsafe Levels of Lead in Toys ----------------------------------------------------------------- Elizabeth Warmerdam at Courthouse News Service reports that the federal government found unsafe levels of lead and other toxins and dangers in 61 of 66 imported toys they inspected at four California companies' warehouses, federal prosecutors say in a lawsuit. U.S. Attorney Andre Birotte Jr. sued four companies and six people in Federal Court. They want these defendants ordered to stop importing and selling the children's toys: Toys Distribution Inc. dba TDI International, and its officers Loan Tuyet Thai, Lan My Lam and Paul Phuong; S & J Merchandise Inc. and its officer Cuc T. Thai; BLJ Apparel Inc. and its officer Luan Luu; and All Seasons Sales Inc. and its officer Tom Liu. U.S. Consumer Product Safety Commission inspectors have collected 66 samples of TDI's consumer since 2008 at TDI's warehouses at the Port of Loa Angeles/Long Beach and Los Angeles, the complaint states. It continues: "In total the CPSC found 61 of these samples to be children's products in violation of CPSC statutes and regulations. The violative samples included children's products and toys with illegal levels of total lead content, lead paint, and phthalates; toys intended for children under three years of age that contain small parts; infant rattles which may cause choking and/or suffocation; and children's products and toys lacking required certification based on third-party testing and lacking tracking labels. The CPSC issued a total of 23 Letters of Advice ('LOAs') from June 14, 2008 to September 14, 2011, notifying the TDI defendants of the violations." Toys Distribution imported motorized and "pull-back" toy cars with impermissible levels of lead and small parts hazards, toy musical instruments with small parts, dolls with illegal levels of lead and phthalates, and rattles that failed to meet the infant rattle standards, according to the Justice Department. S & J Merchandise's illegal toys included numerous models of toys cars, a toy telephone, and plastic dolls. All Seasons Sales' unsafe toys included a children's kitchen set and police set that both exceeded the lead content limit, according to the Justice Department. "CPSC and our federal law enforcement partners are committed to keeping dangerous toys out of the marketplace all year long," CPSC Acting Chairman Robert Adler said in a statement accompanying the 27-page lawsuit. "Manufacturers, importers and retailers need to know that CPSC and the Justice Department are actively enforcing the Consumer Product Safety Improvement Act, a law that has strengthened the nation's product safety net." S & J Merchandise, BLJ Apparel and All Season Sales, and individual defendants Tom Liu and Luan Luu agreed to settle the litigation and be bound by a consent decree enjoining them from committing violations of the CPSA and FHSA, according to the Justice Department. The proposed consent decree has not yet been filed with the court for judicial approval. Toys Distribution and individual defendants Loan Tuyet Thai, Lan My Lam, Paul Phuong and Cuc T. Thai have not agreed to a settlement. TRANSOCEAN LTD: Judge Dismisses Securities Class Action ------------------------------------------------------- Jan Wolfe, writing for The Litigation Daily, reports that in a case of awkward timing, a judge on March 11 dismissed a securities class action against Transocean Ltd. on the basis of an appellate decision that the U.S. Supreme Court agreed to consider reversing just the day before. In a 10-page ruling, U.S. District Judge Lorna Schofield in Manhattan dismissed as time-barred claims that Transocean misled shareholders about its safety record. Judge Schofield based her decision on a June 2013 ruling by the U.S. Court of Appeals for the Second Circuit, which adopted a defendant-friendly approach to determining whether the statute of repose for securities claims could be tolled in litigation against IndyMac. The Supreme Court granted cert in that case, Public Employees' Retirement System of Mississippi v. IndyMac MBS Inc., on March 10. Transocean is one of the world's largest offshore drilling contractors and was the owner of the Deepwater Horizon oil rig at the center of BP plc's 2010 oil spill in the Gulf of Mexico. In the aftermath of the Deepwater Horizon disaster, Scott + Scott brought a securities class action on behalf of shareholders of GlobalSantaFe Corp, which Transocean acquired in 2007. The suit alleged that Transocean falsely stated in proxy statements relating to the merger that it was in compliance with environmental laws. The first judge assigned to the case, Laura Taylor Swain, ruled in 2011 that one of Scott + Scott's two named plaintiffs didn't have standing. Soon after, Transocean's defense lawyers at Munger Tolles & Olson moved to dismiss the case, arguing that the remaining named plaintiff didn't join the case within the applicable three-year statute of repose (statutes of repose are like statutes of limitations, except less easily tolled). By early 2013, it was clear that the case would live or die on one question: Did the commencement of the class action toll the statute of repose for all putative class members? That exact issue was before the Second Circuit in consolidated securities class action litigation against now-defunct IndyMac and its underwriters, so Swain stayed Transocean's motion to dismiss until she could see how the Second Circuit would rule. The Second Circuit ultimately decided last June that the filing of a class action doesn't toll the statute of repose. It appeared that Scott + Scott's case was toast. But on March 10 the Supreme Court gave the plaintiffs a glimmer of hope by agreeing to decide the question once and for all. Scott + Scott quickly fired off a letter to Judge Schofield, who inherited the Transocean case from Swain, informing her of the cert grant in IndyMac. "This is significant because if the Supreme Court reverses IndyMac's holding . . . then defendants' motion will lack a legal foundation," the lawyers wrote. Judge Schofield's ruling on March 11 didn't include any mention of the Supreme Court's decision. But the Transocean plaintiffs will inevitably appeal her ruling to the Second Circuit, which can stay the case pending a ruling from the high court in IndyMac. From Scott + Scott's perspective, it probably doesn't matter who issues the stay, as long as the case survives long enough to be revived, potentially, by the Supreme Court's ruling. Scott + Scott's Geoffrey Johnson -- gjohnson@scott-scott.com -- declined to comment. Transocean's lawyer, John Spiegel -- John.Spiegel@mto.com -- of Munger Tolles, referred The Litigation Daily to a Transocean spokesperson, who told The Litigation Daily the company is "pleased with the judge's decision to dismiss the case." UNITED STATES: ACLU Files Class Action v. Secret Service Agents --------------------------------------------------------------- NBC reports that the ACLU visited Southern Oregon University to talk about a local free speech class action lawsuit that's headed to the Supreme Court. Back in 2004 when President George W. Bush visited Jacksonville to campaign for his re-election police officers and Secret Service agents allegedly used riot control methods on protesters outside the Jacksonville Inn. Protesters say the agents and officers assaulted them but allowed Bush supporters to stay standing near the President. The ACLU Foundation of Oregon filed the federal lawsuit. It will be argued before the U.S. Supreme Court on March 26. The justices will consider whether or not to release the federal government from the lawsuit. Local and state law enforcement agencies are also named in the lawsuit. VERTRUE INC: Webb Klase & Lemond Files Class Action --------------------------------------------------- Atlanta law firm Webb, Klase & Lemond, LLC on March 13 disclosed that it has filed a class action lawsuit against Vertrue, Inc., Adaptive Marketing, LLC, Velo Holdings, MasterCard International, Inc., MyLife.com, Inc., and Oak Investment Partners. The suit states that Vertrue partners with MyLife.com and other deceptive online businesses to trick consumers into unknowingly joining Vertrue's "consumer savings clubs." According to the lawsuit, most club "members" never make use of their savings club "memberships" and cancel their subscriptions immediately upon learning of the fraudulent charges. According to the lawsuit, MasterCard earns fees by processing Vertrue's charges while knowing they are fraudulent and processing such plainly illegitimate charges violates MasterCard's agreements. The lawsuit further states that Vertrue's parent company, Velo Holdings, and MyLife.com's investor-owner Oak Investment Partners, which invested $25 million in MyLife in 2007, also participate in Vertrue's improper practices. The case, Chi v. Vertrue, Inc., et al., was filed in the United States District Court of the Northern District of Georgia, Atlanta Division, on February 28, 2014 and has been given case number 1:14-cv-00614-TWT. The lawsuit proposes a class action on behalf of all consumers nationally who have been harmed by these practices. The new complaint alleges that Vertrue's "savings clubs," administered by its subsidiaries such as Adaptive Marketing, LLC, include At Home Rewards, At Home Rewards+, BusinessMax, Cross Country Savings, DealMax, Home Savings Mall, Food and Flix, Getaway and Save, Leisure Exclusives, My Great Deals, Passport to Fun, Passport to Fun+, SavingsAce, SavingSmart, Shopping Essentials, Shopping Essentials+, Simply You, Today's Escapes, Today's Escapes+, ValueMax, and Your Savings Club. The lawsuit states that when consumers purchase goods and services from MyLife.com and Vertrue's other online partners they encounter confusing, obscured ads for Vertrue's "savings clubs." Consumers click through these ads without realizing that they have accidentally "joined" one of Vertrue's clubs, according to the lawsuit. The lawsuit also states that consumers who accidentally join Vertrue's clubs are charged recurring monthly fees of $20 or more until they affirmatively cancel their "memberships." Vertrue's entire business model is based around this deceptive practice, and Vertrue's co-conspirators, including MasterCard, knowingly facilitate and profit from Vertrue's fraudulent activities. The lawsuit states that MasterCard approves such unauthorized charges, and profits from them, even though this violates MasterCard's own rules regarding protection of private customer credit card data. The suit asserts that the other Defendants are vital to the improper billing scheme. First, Vertrue transmits a consumer's credit card data to the related credit card network, which the complaint alleges was MasterCard. MasterCard verifies the consumer's identity and, the lawsuit states, analyzes the transaction to determine whether it is fraudulent. MasterCard transmits the relevant data to the cardholder's issuing bank which, if it authorizes the charge, sends a verification message to MasterCard, which then informs the issuing bank that the charge has been authorized, according to the suit. The suit claims that the issuing bank then informs Vertrue of the authorization, at which point the purchase is completed and the issuing bank and MasterCard subsequently "clear" and "settle" all of Vertrue's charges for that day, at which point the illicitly obtained funds are sent to Vertrue. The suit contends that all the Defendants are well aware of the illegal scheme, but they nonetheless participate in order to obtain substantial transaction fees. Vertrue is a subsidiary of Velo Holdings, an investment group also named as a Defendant in the lawsuit, that acquired Vertrue in 2007. According to the lawsuit, Velo and Oak Investment, MyLife.com's senior investor-owner, were fully aware that Vertrue's business model relied on consumer fraud when they acquired their positions in these online companies. The suit asserts that these investors nevertheless controlled, participated in, and profited from Vertrue and MyLife for years while doing nothing to curb the companies' highly illegal business practices. If you have unknowingly joined one of Vertrue's savings clubs and wish to discuss this action, or if you have any questions concerning this press release, please contact Webb, Klase & Lemond by e-mail at contact@WebbLLC.com or by calling (770) 444-9325. Webb, Klase & Lemond, LLC is a law firm that practices complex litigation with a focus on litigation arising from wrongful deprivations by corporate and government entities. VITAL PHARMACEUTICALS: Court Refused to Certify "Karhu" Class ------------------------------------------------------------- Judge James I. Cohn of the United States District Court for the Southern District of Florida refused to certify a class in the lawsuit initiated by Adam Karhu against Vital Pharmaceuticals, Inc., doing business as VPX Sports. Judge Cohn ruled that although Mr. Karhu satisfied the requirements of Rule 23(a) of the Federal Rules of Civil Procedure with regard to the Proposed Classes, he failed to establish that common issues predominate and that a class action is the superior means of resolving this controversy under Rule 23(b)(3), or that certification of a Rule 23(b)(2) class is appropriate. Vital Pharmaceuticals, Inc., is a Florida corporation that manufactures and markets a dietary supplement called VPX Meltdown Fat Incinerator. VPX advertises that consumers can use Meltdown to "burn fat" and achieve rapid fat loss. In his complaint Mr. Karhu, a New York resident who purchased Meltdown, claims that the product is ineffective for its advertised purpose. He filed the lawsuit on April 3, 2013, to recover damages based upon VPX's alleged false advertisements, and to enjoin any further misrepresentations. The case is Adam Karhu, on behalf of himself and all others similarly situated v. Vital Pharmaceuticals, Inc., d/b/a VPX Sports, Case No. 13-60768-CIV-COHN/SELTZER, in the United States District Court for the Southern District of Florida. WASTE MANAGEMENT: Faces New "Mesidor" Discrimination Suit in Fla. ----------------------------------------------------------------- Jean Mesidor v. Waste Management, Inc. of Florida, a Florida Corporation, Case No. 9:14-cv-80137-KAM (S.D. Fla., February 1, 2014) alleges that the Plaintiff was subjected to harassment and disparate treatment in the terms and conditions of his employment based on his national origin (Haitian). Mr. Mesidor filed his initial action on June 22, 2011, as one of 98 Plaintiffs (Case No. 9:11-CV-80723). On September 13, 2013, he became one of 79 Plaintiffs, whose claim was severed by Judge Ryskamp (Case No. 9:11-CV-80723 [DE-381]). He now files this action pursuant to the September 13, 2013 Order denying Plaintiffs' motion for class certification and granting Defendant's motion to sever and for separate trials. The Plaintiff is represented by: Dedrick D. Straghn, Esq. 26 S.W. 5th Ave. Delray Beach, FL 33444 Telephone: (561) 789-5232 Facsimile: (561) 272-0774 E-mail: dstraghn@yahoo.com The Defendant is represented by: James Clark Polkinghorn, Esq. Candice C. Pinares-Baez, Esq. Cathy Mattson Stutin, Esq. FISHER & PHILLIPS 450 E Las Olas Boulevard, Suite 800 Fort Lauderdale, FL 33301 Telephone: (954) 525-4800 Facsimile: (954) 525-8739 E-mail: jpolkinghorn@laborlawyers.com cpinares-baez@laborlawyers.com cstutin@laborlawyers.com WELLS FARGO: Accused of Violating Labor Laws in California ---------------------------------------------------------- Wells Fargo Bank stiffed employees for overtime and violated other labor laws, a class action claims in California Federal Court, according to Courthouse News Service. WHITEHAVEN COAL: Law Firm Examines Grounds for Class Action ----------------------------------------------------------- Catherine Clifford, writing for ABC News, reports that a lawyer says his firm is examining if there are grounds for a class action against Whitehaven Coal over blasting and dust concerns at its Werris Creek operation. Partner with Shine Lawyers, John Palmieri, says he's been approached by a number of residents who are worried about the situation. On March 11, up to 60 residents attended a meeting in Werris Creek with Nationals' member for Tamworth, Kevin Anderson and Whitehaven representatives. Mr. Palmieri says a range of issues are being looked at, including alleged damage to property from mine explosions, monitoring and dust levels. Mr. Palmieri says a number of issues are being explored. Whitehaven Coal's Executive General Manager of Operations, Jamie Frankcombe, declined to be interviewed. However, he said the March 11 meeting provided a technical briefing for Werris Creek residents where experts provided formal presentations. He says the experts delivered facts around blasting, soil engineering, the geology of the Werris Creek area and building structures. Mr. Frankcombe says Whitehaven's blasting is carried out within guidelines and in accordance with the mine's license conditions. He says the company handles individual complaints on a case-by- case basis. WINCO FOODS: Sued by DFEH Director Over FEHA and ADA Violations --------------------------------------------------------------- Phyllis W. Cheng, in her official capacity as Director of the California Department of Fair Employment and Housing, an agency of the state of California, on behalf of Real Parties in Interest and all Similarly Situated Individuals v. Winco Foods, LLC; Winco Holdings, Inc., Case No. 3:14-cv-00483-JST (N.D. Cal., January 31, 2014) seeks to enforce the interests of the state of California in the California Fair Employment and Housing Act and the Americans with Disabilities Act to correct an alleged pattern or practice of discrimination by the Defendants against a group or class of persons. The Real Parties in Interest are Cristina Verduzco and Angelina Gonzalez-Diaz. The Defendants have maintained multiple policies and practices that unlawfully discriminate against employees with non-work- related disabilities, including pregnancy, in violation of the FEHA, California's Pregnancy Disability Leave law, the California Family Rights Act and the ADA, Ms. Cheng alleges. She adds that the Defendants' policies and practices constitute per se violations of these laws, as they require those disabled employees to take leave from work without considering reasonable accommodations until they are fully released to work or "100% healed." Phyllis W. Cheng is the Director of the California Department of Fair Employment and Housing, a state agency charged with enforcing FEHA. DFEH's enforcement of FEHA is an exercise of the police power of the state of California to protect the civil rights of all Californians to seek, obtain, and hold employment without discrimination or abridgment on account of, inter alia, disability and sex. Winco Foods, LLC is a Delaware corporation headquartered in Idaho and doing business in and throughout the state of California. Winco Holdings, Inc. is an Idaho corporation headquartered in Idaho and doing business in and throughout the state of California. The Defendants operate retail grocery stores, including warehouse distribution centers, in Idaho, Nevada, Washington, Oregon, California, Arizona and Utah. Ms. Cheng is represented by: Alexandra Rose Seldin, Esq. Julia Louise Montgomery, Esq. DEPARTMENT OF FAIR EMPLOYMENT & HOUSING 2218 Kausen Drive, Suite 100 Elk Grove, CA 95758 Telephone: (619) 985-3608 Facsimile: (888) 382-5293 E-mail: alexandra.seldin@dfeh.ca.gov julie.montgomery@dfeh.ca.gov The Defendants are represented by: Kristina M. Launey, Esq. SEYFARTH SHAW LLP 400 Capitol Mall, Suite 2350 Sacramento, CA 95814-4428 Telephone: (916) 448-0159 Facsimile: (916) 558-4839 E-mail: klauney@seyfarth.com - and - Nick C. Geannacopulos, Esq. Courtney Bohl, Esq. Laura J. Maechtlen, Esq. Robert Brian Wong, Esq. SEYFARTH SHAW LLP 560 Mission Street, 31st Floor San Francisco, CA 94105 Telephone: (415) 397-2823 Facsimile: (415) 397-8549 E-mail: ngeannacopulos@seyfarth.com Cbohl@seyfarth.com lmaechtlen@seyfarth.com bwong@seyfarth.com ZIMMER INC: Faces Product Liability Suit Over Knee Implant ---------------------------------------------------------- Jon Campisi, writing for The Pennsylvania Record, reports that a Montgomery County man has filed a products liability lawsuit against anjustice pendulum logo Indiana-based manufacturer of orthopedic implants over allegations that an artificial knee made by the defendant failed while inside the plaintiff's body. Ron Hyman, of Huntingdon Valley, Pa., filed the suit in U.S. District Court in Philadelphia over allegations that Zimmer Inc., and subsidiaries Zimmer Holdings Inc. and Zimmer US Inc., were negligent when they put on the market an artificial knee device that was surgically implanted into the plaintiff's leg, and which broke, moved, failed, ruptured and/or cracked while Hyman was walking in the spring of 2012. The plaintiff ended up having to undergo a follow-up surgery in April of that year to replace the faulty device, the complaint states. The lawsuit says that since the failure of the defendant's product, Mr. Hyman has experienced substantial pain and stiffness in his knee, which affects his ability to conduct daily activities and to operate his business. "Following the replacement of the Zimmer product, Plaintiff continues to have trouble with his knee," the complaint reads. The lawsuit says that as the makers and distributors of the product, Zimmer knew or should have known that unless the device was carefully and properly designed, manufactured and fabricated, it would constitute an "unreasonable risk of substantial bodily harm to those who used it for the purposes for which it was made and intended." The suit contains counts of strict products liability, negligence and breach of warranties. The complaint accuses the defendant of failing to exercise reasonable care in the design, testing, manufacture, sale and/or certification of the knee implant, and it says that in connection with the sale of its products, the company warranted that its reconstructive orthopedic knee implant was without defect, was of good and merchantable quality and was safe for its intended use. As a result of the defendants' actions, Mr. Hyman suffered personal injuries, experienced great pain and suffering, required additional knee revision surgery and incurred medical expenses. The plaintiff also has additional scar tissue in his right knee and required a "lengthy and protracted" rehabilitation preventing him from performing his activities of daily living, the complaint states. Mr. Hyman seeks an unspecified amount of damages for past and future medical expenses and loss of earning capacity, as well as general damages for physical and emotional pain and suffering. He also seeks litigation costs and attorney fees. The lawsuit was filed by attorney Kenneth S. Saffren of the Jenkintown, Pa. firm Saffren & Weinberg. The federal case number is 2:14-cv-01388-SD. Asbestos Litigation ASBESTOS UPDATE: 2 Adversary Suits in CP Hall Ch. 11 Case Junked ---------------------------------------------------------------- Judge A. Benjamin Goldgar of the U.S. Bankruptcy Court for the Northern District of Illinois, Eastern Division, issued a ruling on March 12, 2014, granting motions to dismiss adversary complaints of James Shipley filed in the Chapter 7 case of The C.P. Hall Company, a defunct distributor of raw asbestos products. Mr. Shipley, as representative of his late wife's estate, filed a proof of claim in the bankruptcy case for $3,362,465 asserting damages for personal injuries of his wife. Mr. Shipley filed an adversary complaint against certain personal injury creditors represented by Cooney & Conway. In his complaint, Mr. Shipley sought a determination that he had a lien on certain insurance proceeds, that any lien the creditors had was invalid, and that to the extent both he and the creditors had liens, his was superior to theirs. Mr. Shipley also objected to the creditors' claim totaling $121,610, 107. In September 2013, Mr. Shipley filed another adversary complaint, this one against the creditors represented by the O'Brien Law Firm. The new complaint differed somewhat from the first complaint. Mr. Shipley sought a determination only that any lien the creditors claimed to have on certain insurance proceeds was invalid. He also objected to the creditors' claim totaling $30,900,000. The Bankruptcy Court noted that the main bone of contention between the parties, ironically, is not the sufficiency of the process but rather the sufficiency of service. Mr. Shipley takes the position that Rule 7004(b)(8) of the Federal Rules of Bankruptcy Procedure entitled him to serve the creditors by serving their lawyers because the lawyers were the creditors' "agents" for purposes of the rule. The creditors disagree. Judge Goldgar ruled that because the process itself was insufficient, service of process necessarily failed to confer personal jurisdiction over the defendants. There is consequently no need at this juncture to reach the sufficiency of service as sufficiency of service will be a question for another day should Shipley choose the same method of serving his amended complaints, Judge Goldgar said. Accordingly, Judge Goldgar granted the motions of the defendant creditors to dismiss the adversary complaints of Mr. Shipley, and quashed the process in both adversary proceedings. The Court granted Mr. Shipley has leave to file amended complaints bearing proper captions, and new summonses may issue. The adversary proceedings are JAMES SHIPLEY, Plaintiff, v. COONEY & CONWAY CREDITORS, Defendants, No. 13 A 1070, and JAMES SHIPLEY, Plaintiff, v. O'BRIEN CREDITORS, Defendants, No. 13 A 1156 (In re In re: THE C.P. HALL COMPANY, Chapter 7, Debtor, No. 11-B- 26443)(N.D. Ill.). A full-text copy of Judge Goldgar's memorandum opinion is available at http://is.gd/rBuzvDfrom Leagle.com. ASBESTOS UPDATE: Ford Motor Suspects It was Target of Fibro Attys ----------------------------------------------------------------- John O'Brien, writing for Legal Newsline, reported that Ford Motor Company wants to know the specific conduct exhibited by asbestos attorneys who, according to a federal bankruptcy judge, created "a startling pattern of misrepresentation" while pursuing their clients' claims against multiple companies. Ford moved to unseal evidence presented during Garlock Sealing Technologies' bankruptcy case. In 2013, the company submitted the evidence in an effort to prove prior recoveries against the company in civil courts had been inflated because asbestos attorneys withheld evidence that their clients could blame other companies for their asbestos exposure. In an order released in January, U.S. Bankruptcy Judge George Hodges agreed with Garlock's argument but did not release the specific evidence cited. Legal Newsline, which was kept out of the courtroom during the trial by Hodges, has filed a motion to unseal the evidence. Ford is wondering if it, like Garlock, has paid more than it should have. "Having reviewed the scant information presently available, it appears that Ford may have been induced into inflated settlements in some of the same cases examined by this court," attorneys for the company wrote. "This Honorable Court having found that '(i)t appears certain that more extensive discovery would show more extensive abuse,' Ford must be granted access to the information currently under seal. Indeed, this pattern of misrepresentations may have affected Ford in circumstances not yet ascertainable." Hodges' order spurned asbestos attorneys who requested Garlock place more than $1 billion in a trust for present and future asbestos claimants. Hodges instead ruled that the amount of previous awards and settlements paid by the company in the civil justice system were not reliable because plaintiffs attorneys had withheld exposure evidence in order to maximize recovery against Garlock. He ruled that Garlock needed to put $125 million in its bankruptcy trust and that math produced by plaintiffs attorneys wasn't reliable because Garlock had suffered large jury verdicts as a result of claimants previously focusing their lawsuits on Garlock while losing evidence to other asbestos exposure in the process. "This occurrence was a result of the effort by some plaintiffs and their lawyers to withhold evidence of exposure to other asbestos products and to delay filing claims against bankrupt defendants' asbestos trusts until after obtaining recoveries from Garlock," Hodges wrote. Garlock brought evidence to the bankruptcy hearing demonstrating that the last 10 years of its participation in the asbestos litigation system "was infected by the manipulation of exposure evidence by plaintiffs and their lawyers." According to Garlock's evidence, one firm issued to its clients 23 pages of directions on how to testify. Evidence also showed one lawyer stated, "My duty to these clients is to maximize their recovery, okay, and the best way for me to maximize their recovery is to proceed against solvent viable non-bankrupt defendants first, and then, if appropriate, to proceed against bankrupt companies." Hodges permitted Garlock to bring evidence proving that roughly 220 settled cases withheld evidence. Then after settlement, clients made claims against roughly 20 companies' bankruptcy trusts. "It appears certain that more extensive discovery would show more extensive abuse," Hodges continued. "But that is not necessary because the startling pattern of misrepresentation that has been shown is sufficiently persuasive. "While it is not suppression of evidence for a plaintiff to be unable to identify exposures, it is suppression of evidence for a plaintiff to be unable to identify exposure in the tort case, but then later to be able to identify it in Trust claims. It is that practice that prejudiced Garlock in the tort system." Ford routinely finds itself as a defendant in asbestos lawsuits. Plaintiffs allege they were exposed to the material while working with or around chrysotile-containing brake pads. "(L)egitimate concerns about the disclosure of other information shown to fall within an exception can and should be addressed by redacting information, where necessary, or placing limits on subsequent disclosure," the company argues. "But a blanket refusal to disclose this information -- to enable asbestos claimants and their attorneys to sweep this information back under the rug -- will ensure that any 'unlawful injur(ies)' to Ford remain unredressed." Garlock has filed sealed lawsuits against the asbestos firms it alleges committed fraud. The lawsuits were filed under seal because they contained information previously determined by Hodges that should remain confidential. A hearing on Legal Newsline's motion is scheduled for April 17. Also seeking information from the bankruptcy proceeding is health insurer Aetna. The company says it is the health insurer of many asbestos claimants and thus has subrogation rights for claims against Garlock. Aetna says it has provided millions of dollars in benefits to plan members to treat their asbestos-related diseases. "The public is presumptively entitled to access judicial records," attorneys for Aetna and The Rawlings Company wrote. "Rule 2019 Statements, along with the exhibits filed but not placed on the electronic docket, are judicial records. There is no countervailing interest to overcome the presumption that movants, as members of the public, are entitled to access the Rule 2019 Statements." ASBESTOS UPDATE: Union Carbide Recorded $501-Mil. Liabilities ------------------------------------------------------------- Union Carbide Corporation's asbestos-related liability for pending and future claims was $501 million, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2013. The Company is and has been involved in a large number of asbestos-related suits filed primarily in state courts during the past three decades. These suits principally allege personal injury resulting from exposure to asbestos-containing products and frequently seek both actual and punitive damages. The alleged claims primarily relate to products that UCC sold in the past, alleged exposure to asbestos-containing products located on UCC's premises, and UCC's responsibility for asbestos suits filed against a former UCC subsidiary, Amchem Products, Inc. ("Amchem"). In many cases, plaintiffs are unable to demonstrate that they have suffered any compensable loss as a result of such exposure, or that injuries incurred in fact resulted from exposure to the Company's products. The Company expects more asbestos-related suits to be filed against UCC and Amchem in the future, and will aggressively defend or reasonably resolve, as appropriate, both pending and future claims. Based on a study completed by Analysis, Research & Planning Corporation ("ARPC") in January 2003, the Company increased its December 31, 2002 asbestos-related liability for pending and future claims for the 15-year period ending in 2017 to $2.2 billion, excluding future defense and processing costs. Since then, the Company has compared current asbestos claim and resolution activity to the results of the most recent ARPC study at each balance sheet date to determine whether the accrual continues to be appropriate. In addition, the Company has requested ARPC to review the Corporation's historical asbestos claim and resolution activity each year since 2004 to determine the appropriateness of updating the most recent ARPC study. In November 2011, the Company requested ARPC to review its historical asbestos claim and resolution activity and determine the appropriateness of updating its December 2010 study. In response to that request, ARPC reviewed and analyzed data through October 31, 2011. In January 2012, ARPC stated that an update of its study would not provide a more likely estimate of future events than the estimate reflected in its December 2010 study and, therefore, the estimate in that study remained applicable. Based on the Corporation's own review of the asbestos claim and resolution activity and ARPC's response, the Company determined that no change to the accrual was required. At December 31, 2011, the Company's asbestos-related liability for pending and future claims was $668 million. In October 2012, the Company requested ARPC to review its historical asbestos claim and resolution activity and determine the appropriateness of updating its December 2010 study. In response to that request, ARPC reviewed and analyzed data through September 30, 2012. In December, 2012, based upon ARPC's December 2012 study and the Corporation's own review of the asbestos claim and resolution activity for 2012, it was determined that no adjustment to the accrual was required at December 31, 2012. The Company's asbestos-related liability for pending and future claims was $602 million at December 31, 2012. In October 2013, the Company requested ARPC to review its historical asbestos claim and resolution activity and determine the appropriateness of updating its December 2012 study. In response to that request, ARPC reviewed and analyzed data through September 30, 2013. In December, 2013, ARPC stated that an update of its study would not provide a more likely estimate of future events than the estimate reflected in its December 2012 study and, therefore, the estimate in that study remained applicable. Based on the Corporation's own review of the asbestos claim and resolution activity and ARPC's response, the Company determined that no change to the accrual was required. The Corporation's asbestos-related liability for pending and future claims was $501 million at December 31, 2013. At December 31, 2013, approximately 19 percent of the recorded liability related to pending claims and approximately 81 percent related to future claims. At December 31, 2012, approximately 18 percent of the recorded liability related to pending claims and approximately 82 percent related to future claims. Union Carbide Corporation makes the legos of the chemicals world. The company, a subsidiary of Dow Chemical, turns out building- block chemicals such as ethylene and propylene, which are converted into widely used plastics resins, primarily polyethylene. The chemical company is also a leading producer of ethylene oxide and ethylene glycol used to make polyester fibers and antifreeze, respectively. Union Carbide makes solvents and intermediates (such as oxo aldehydes and esters), vinyl acetate monomer, water-soluble polymers, and polyolefin-based compounds. ASBESTOS UPDATE: Union Carbide Had $91MM Insurance Receivables -------------------------------------------------------------- Union Carbide Corporation's total receivables from insurance policies for asbestos-related liability was $91 million, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2013. At December 31, 2002, the Company increased the receivable for insurance recoveries related to its asbestos liability to $1.35 billion, substantially exhausting its asbestos product liability coverage. The insurance receivable related to the asbestos liability was determined by the Company after a thorough review of applicable insurance policies and the 1985 Wellington Agreement, to which the Corporation and many of its liability insurers are signatory parties, as well as other insurance settlements, with due consideration given to applicable deductibles, retentions and policy limits, and taking into account the solvency and historical payment experience of various insurance carriers. The Wellington Agreement and other agreements with insurers are designed to facilitate an orderly resolution and collection of the Company's insurance policies and to resolve issues that the insurance carriers may raise. In September 2003, the Company filed a comprehensive insurance coverage case, now proceeding in the Supreme Court of the State of New York, County of New York, seeking to confirm its rights to insurance for various asbestos claims and to facilitate an orderly and timely collection of insurance proceeds (the "Insurance Litigation"). The Insurance Litigation was filed against insurers that were not signatories to the Wellington Agreement and/or did not otherwise have agreements in place with the Corporation regarding their asbestos-related insurance coverage, in order to facilitate an orderly resolution and collection of such insurance policies and to resolve issues that the insurance carriers may raise. Since the filing of the case, the Corporation has reached settlements with several of the carriers involved in the Insurance Litigation and continues to pursue settlements with the remaining carriers. The Company's receivable for insurance recoveries related to its asbestos liability was $25 million at December 31, 2013 and $25 million at December 31, 2012. At December 31, 2013 and 2012, all of the receivable for insurance recoveries was related to insurers that are not signatories to the Wellington Agreement and/or do not otherwise have agreements in place regarding their asbestos- related insurance coverage. In addition to the receivable for insurance recoveries related to its asbestos liability, the Corporation had receivables for defense and resolution costs submitted to insurance carriers that have settlement agreements in place regarding their asbestos- related insurance coverage. At December 31, 2013, the Company's total receivables for asbestos-related liability was $91 million. The decrease in 2013 in the receivables for asbestos-related costs was principally due to the resolution of receivables related to two insolvent insurance carriers. The pretax impact for defense and resolution costs, net of insurance, was $107 million in 2013, $100 million in 2012 and $88 million in 2011, and was reflected in "Cost of sales" in the consolidated statements of operations. After a review of its insurance policies, with due consideration given to applicable deductibles, retentions and policy limits, and after taking into account the solvency and historical payment experience of various insurance carriers; existing insurance settlements; and the advice of outside counsel with respect to the applicable insurance coverage law relating to the terms and conditions of its insurance policies, the Corporation continues to believe that its recorded receivable for insurance recoveries from all insurance carriers is probable of collection. The amounts recorded by the Company for the asbestos-related liability and related insurance receivable described above were based upon current, known facts. However, future events, such as the number of new claims to be filed and/or received each year, the average cost of disposing of each such claim, coverage issues among insurers, and the continuing solvency of various insurance companies, as well as the numerous uncertainties surrounding asbestos litigation in the United States, could cause the actual costs and insurance recoveries for the Company to be higher or lower than those projected or those recorded. Because of the uncertainties described above, the Company's management cannot estimate the full range of the cost of resolving pending and future asbestos-related claims facing UCC and Amchem. The Company's management believes that it is reasonably possible that the cost of disposing of the Corporation's asbestos-related claims, including future defense costs, could have a material impact on the Company's results of operations and cash flows for a particular period and on the consolidated financial position of the Corporation. While it is not possible at this time to determine with certainty the ultimate outcome of any of the legal proceedings and claims referred to in this filing, management believes that adequate provisions have been made for probable losses with respect to pending claims and proceedings, and that, except for the asbestos- related matters described above, the ultimate outcome of all known and future claims, after provisions for insurance, will not have a material adverse impact on the results of operations, cash flows and financial position of the Corporation. Should any losses be sustained in connection with any of such legal proceedings and claims in excess of provisions provided and available insurance, they will be charged to income when determinable. Union Carbide Corporation makes the legos of the chemicals world. The company, a subsidiary of Dow Chemical, turns out building- block chemicals such as ethylene and propylene, which are converted into widely used plastics resins, primarily polyethylene. The chemical company is also a leading producer of ethylene oxide and ethylene glycol used to make polyester fibers and antifreeze, respectively. Union Carbide makes solvents and intermediates (such as oxo aldehydes and esters), vinyl acetate monomer, water-soluble polymers, and polyolefin-based compounds. ASBESTOS UPDATE: Exelon Corp. Unit Reserves $90MM for PI Claims --------------------------------------------------------------- Exelon Corporation's subsidiary, Exelon Generation Company, LLC, had reserved approximately $90 million in total for asbestos- related bodily injury claims, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2013. Generation maintains a reserve for claims associated with asbestos-related personal injury actions in certain facilities that are currently owned by Generation or were previously owned by Commonwealth Edison Company (ComEd) and PECO Energy Company. The reserve is recorded on an undiscounted basis and excludes the estimated legal costs associated with handling these matters, which could be material. At December 31, 2013 and 2012, Generation had reserved approximately $90 million and $63 million, respectively, in total for asbestos-related bodily injury claims. As of December 31, 2013, approximately $19 million of this amount related to 224 open claims presented to Generation, while the remaining $71 million of the reserve is for estimated future asbestos-related bodily injury claims anticipated to arise through 2050, based on actuarial assumptions and analyses, which are updated on an annual basis. On a quarterly basis, Generation monitors actual experience against the number of forecasted claims to be received and expected claim payments and evaluates whether an adjustment to the reserve is necessary. On November 22, 2013, the Supreme Court of Pennsylvania held that the Pennsylvania Workers Compensation Act does not apply to an employee's disability or death resulting from occupational disease, such as diseases related to asbestos exposure, which manifests more than 300 weeks after the employee's last employment-based exposure, and that therefore the exclusivity provision of the Act does not apply to preclude such employee from suing his or her employer in court. The Supreme Court's ruling reverses previous rulings by the Pennsylvania Superior Court precluding current and former employees from suing their employers in court, despite the fact that the same employee was not eligible for workers compensation benefits for diseases that manifest more than 300 weeks after the employee's last employment-based exposure to asbestos. Currently, Exelon, Generation and PECO are unable to predict whether and to what extent they may experience additional claims in the future as a result of this ruling; as such no increase to the asbestos-related bodily injury liability has been recorded as of December 31, 2013. Increased claims activity resulting from this ruling could have a material adverse impact on Exelon, Generation's and PECO's future results of operations and cash flows. Since 1993, BGE and certain Constellation (now Generation) subsidiaries have been involved in several actions concerning asbestos. The actions are based upon the theory of "premises liability," alleging that BGE and Generation knew of and exposed individuals to an asbestos hazard. In addition to BGE and Generation, numerous other parties are defendants in these cases. Approximately 486 individuals who were never employees of BGE or certain Constellation subsidiaries have pending claims each seeking several million dollars in compensatory and punitive damages. Cross-claims and third-party claims brought by other defendants may also be filed against BGE and certain Constellation subsidiaries in these actions. To date, most asbestos claims which have been resolved have been dismissed or resolved without any payment by BGE or certain Constellation subsidiaries and a small minority of these cases has been resolved for amounts that were not material to BGE or Generation's financial results. Discovery begins in these cases after they are placed on the trial docket. At present, only two of the pending cases are set for trial. Given the limited discovery in these cases, BGE and Generation do not know the specific facts that are necessary to provide an estimate of the reasonably possible loss relating to these claims; as such, no accrual has been made and a range of loss is not estimable. The specific facts not known include: * the identity of the facilities at which the plaintiffs allegedly worked as contractors; * the names of the plaintiffs' employers; * the dates on which and the places where the exposure allegedly occurred; and * the facts and circumstances relating to the alleged exposure. Insurance and hold harmless agreements from contractors who employed the plaintiffs may cover a portion of any awards in the actions. Exelon Corporation (Exelon) is an energy provider and holding company for several energy businesses. Exelon is engaged in the energy generation business through its Exelon Generation Company, LLC (Generation) subsidiary; wholesale and retail energy sales through its Constellation business unit, and the energy delivery business through its Baltimore Gas and Electric (BGE), Commonwealth Edison Company (ComEd) and PECO Energy Company (PECO) subsidiaries. It operates in 47 states, the District of Columbia and Canada. Exelon Generation has approximately 35,000 megawatts of owned capacity. Constellation provides energy products and services to approximately 100,000 business and public sector customers and approximately 1 million residential customers. Exelon's utilities deliver electricity and natural gas to more than 6.6 million customers in central Maryland, northern Illinois and southeastern Pennsylvania. On March 12, 2012, Constellation Energy Group, Inc. merged into Exelon. ASBESTOS UPDATE: Ingersoll-Rand Recorded $846.2-Mil Liabilities --------------------------------------------------------------- Ingersoll-Rand plc (IR-Ireland) recorded $846.2 million for its total asbestos-related liabilities, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2013. Certain wholly-owned subsidiaries of the Company are named as defendants in asbestos-related lawsuits in state and federal courts. In virtually all of the suits, a large number of other companies have also been named as defendants. The vast majority of those claims have been filed against either Ingersoll-Rand Company (IR-New Jersey) or Trane U.S. Inc. (Trane) and generally allege injury caused by exposure to asbestos contained in certain historical products sold by IR-New Jersey or Trane, primarily pumps, boilers and railroad brake shoes. Neither IR-New Jersey nor Trane was a producer or manufacturer of asbestos, however, some formerly manufactured products utilized asbestos-containing components such as gaskets and packings purchased from third-party suppliers. The Company engages an outside expert to assist in calculating an estimate of the Company's total liability for pending and unasserted future asbestos-related claims and annually performs a detailed analysis with the assistance of an outside expert to update its estimated asbestos-related assets and liabilities. The methodology used to project the Company's total liability for pending and unasserted potential future asbestos-related claims relied upon and included the following factors, among others: * the outside expert's interpretation of a widely accepted forecast of the population likely to have been occupationally exposed to asbestos; * epidemiological studies estimating the number of people likely to develop asbestos-related diseases such as mesothelioma and lung cancer; * the Company's historical experience with the filing of non malignancy claims and claims alleging other types of malignant diseases filed against the Company relative to the number of lung cancer claims filed against the Company; * the outside expert's analysis of the number of people likely to file an asbestos-related personal injury claim against the Company based on such epidemiological and historical data and the Company's most recent three-year claims history; * an analysis of the Company's pending cases, by type of disease claimed and by year filed; * an analysis of the Company's most recent three-year history to determine the average settlement and resolution value of claims, by type of disease claimed; * an adjustment for inflation in the future average settlement value of claims, at a 2.5% annual inflation rate, adjusted downward to 1.5% to take account of the declining value of claims resulting from the aging of the claimant population; and * an analysis of the period over which the Company has and is likely to resolve asbestos-related claims against it in the future. At December 31, 2013, over 80 percent of the open claims against the Company are non-malignancy claims, many of which have been placed on inactive or deferral dockets and the vast majority of which have little or no settlement value against the Company, particularly in light of recent changes in the legal and judicial treatment of such claims. At December 31, 2013, the Company recorded $846.2 million for its total asbestos-related liabilities and $321.8 million for its total asset for probable asbestos-related insurance recoveries. The Company's asbestos insurance receivable related to IR-New Jersey and Trane was $137.6 million and $172.0 million at December 31, 2013, and $125.5 million and $194.8 million at December 31, 2012, respectively. For the year ended December 31, 2013, the total cost associated with the settlement and defense of asbestos-related claims after insurance recoveries was $56.2 million. IR-New Jersey records income and expenses associated with its asbestos liabilities and corresponding insurance recoveries within discontinued operations, as they relate to previously divested businesses, primarily Ingersoll-Dresser Pump, which was sold in 2000. Income and expenses associated with Trane's asbestos liabilities and corresponding insurance recoveries are recorded within continuing operations. Trane has now settled claims regarding asbestos coverage with most of its insurers. The settlements collectively account for approximately 95% of its recorded asbestos-related insurance receivable as of December 31, 2013. Most of Trane's settlement agreements constitute "coverage-in-place" arrangements, in which the insurer signatories agree to reimburse Trane for specified portions of its costs for asbestos bodily injury claims and Trane agrees to certain claims-handling protocols and grants to the insurer signatories certain releases and indemnifications. Trane remains in litigation in an action that Trane filed in November 2010 in the Circuit Court for La Crosse County, Wisconsin, relating to claims for insurance coverage for a subset of Trane's historical asbestos-related liabilities. On January 12, 2012, IR-New Jersey filed an action in the Superior Court of New Jersey, Middlesex County, seeking a declaratory judgment and other relief regarding the Company's rights to defense and indemnity for asbestos claims. The defendants are several dozen solvent insurance companies, including companies that have been paying a portion of IR-New Jersey's asbestos claim defense and indemnity costs. The action involves certain of IR-New Jersey's unexhausted insurance policies applicable to the asbestos claims that are not subject to any settlement agreement. The responding defendants generally challenged the Company's right to recovery, and raised various coverage defenses. In December 2013, IR-New Jersey filed a similar action in the same court against an insurer that was not a party to the 2012 action. The Company continually monitors the status of pending litigation that could impact the allocation of asbestos claims against the Company's various insurance policies. The Company has concluded that its IR-New Jersey insurance receivable is probable of recovery because of the following factors: * a review of other companies in circumstances comparable to IR-New Jersey, including Trane, and the success of other companies in recovering under their insurance policies, including Trane's favorable settlement discussed above; * the Company's confidence in its right to recovery under the terms of its policies and pursuant to applicable law; and * the Company's history of receiving payments under the IR-New Jersey insurance program, including under policies that had been the subject of prior litigation. The amounts recorded by the Company for asbestos-related liabilities and insurance-related assets are based on currently available information. The Company's actual liabilities or insurance recoveries could be significantly higher or lower than those recorded if assumptions used in the calculations vary significantly from actual results. Key variables in these assumptions include the number and type of new claims to be filed each year, the average cost of resolution of each such new claim, the resolution of coverage issues with insurance carriers, and the solvency risk with respect to the Company's insurance carriers. Furthermore, predictions with respect to these variables are subject to greater uncertainty as the projection period lengthens. Other factors that may affect the Company's liability include uncertainties surrounding the litigation process from jurisdiction to jurisdiction and from case to case, reforms that may be made by state and federal courts, and the passage of state or federal tort reform legislation. The aggregate amount of the stated limits in insurance policies available to the Company for asbestos-related claims acquired over many years and from many different carriers, is substantial. However, limitations in that coverage, primarily due to the considerations described above, are expected to result in the projected total liability to claimants substantially exceeding the probable insurance recovery. Ingersoll-Rand plc (IR-Ireland) is a diversified, global company that provides products, services and solutions to enhance the comfort of air in homes and buildings, transport and protect food and perishables, secure homes and commercial properties. IR- Ireland operates in four business segments: Climate Solutions, Residential Solutions, Industrial Technologies and Security Technologies. It generates revenue and cash primarily through the design, manufacture, sale and service of a diverse portfolio of industrial and commercial products that include Club Car, Ingersoll-Rand, Schlage, Thermo King and Trane. On September 30, 2011, IR-Ireland completed the transaction to sell 60% in the Hussmann business. In December 2013, the Company announced that it has completed the spinoff of the Company's commercial and residential security businesses named Allegion. ASBESTOS UPDATE: Cliffs Natural Resources Has 50 Pending Cases -------------------------------------------------------------- Cliffs Natural Resources Inc. continues to defend itself against approximately 50 cases alleging asbestos exposure, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2013. The Cleveland-Cliffs Iron Company and/or The Cleveland-Cliffs Steamship Company have been named defendants in 489 actions brought from 1986 to date by former seamen claiming damages for various illnesses allegedly suffered as the result of exposure to airborne asbestos fibers while serving as crew members aboard the vessels previously owned or managed by our entities until the mid- 1980s. All of these actions have been consolidated into multidistrict proceedings in the Eastern District of Pennsylvania, along with approximately 30,000 other cases from various jurisdictions that were filed against other defendants. Through a series of court orders, the docket has been reduced to approximately 3,500 active cases. The Company is a named defendant in approximately 50 cases. These cases are in the discovery phase. The court has dismissed the remainder of the cases without prejudice. Those dismissed cases could be reinstated upon application by plaintiffs' counsel. The claims against our entities are insured in amounts that vary by policy year; however, the manner in which coverage will be applied remains uncertain. Our entities continue to vigorously contest these claims and have made no settlements on them. Cliffs Natural Resources Inc. is an international mining and natural resources company. The Company is an iron ore producer and a producer of metallurgical coal. The Company's operations are organized according to product category and geographic location: U.S. Iron Ore, Eastern Canadian Iron Ore, North American Coal, Asia Pacific Iron Ore, Asia Pacific Coal, Latin American Iron Ore, Ferroalloys, and its Global Exploration Group. The Company operates in four segments: U.S. Iron Ore, Eastern Canadian Iron Ore, North American Coal and Asia Pacific Iron Ore. In the United States, it operates five iron ore mines in Michigan and Minnesota, five metallurgical coal mines located in West Virginia and Alabama and one thermal coal mine located in West Virginia. It also operates two iron ore mines in Eastern Canada that primarily provide iron ore to the seaborne market for Asian steel producers. On May 12, 2011, the Company completed the acquisition of Consolidated Thompson Iron Mining Limited. ASBESTOS UPDATE: "Hokanson" Suit Remanded to N.J. State Court ------------------------------------------------------------- Judge Mary L. Cooper of the U.S. District Court for the District of New Jersey remanded to state court the asbestos-related personal injury action styled KAY HOKANSON, as Attorney-in-Fact of CLARENCE RALPH HOSFORD, and Individually, Plaintiff, v. KERR CORPORATION; PATTERSON COMPANIES, INC., Individually and as successor to Patterson Dental Company; PATTERSON DENTAL SUPPLY, INC.; and GROBET USA, Defendants, CIVIL ACTION NO. 13-4534 (MLC)(D.N.J.), abiding by the line of "cases holding that a non- forum defendant cannot remove a case where there are unserved forum defendants." A full-text copy of Judge Cooper's March 10, 2014, memorandum opinion is available at http://is.gd/lKam1dfrom Leagle.com. ASBESTOS UPDATE: Preference Granted in "Kestenbaum" Suit -------------------------------------------------------- Preference is granted by the Appellate Division of the Supreme Court of New York, First Department, in IN RE: NEW YORK CITY ASBESTOS LITIGATION relating to KESTENBAUM, v. DUREZ CORPORATION -- UNION CARBIDE CORPORATION, 2014 NY Slip Op 66094(U)(N.Y. App. Div.). A full-text copy of the Court's March 11, 2014, decision is available at http://is.gd/H5s9W4from Leagle.com. ASBESTOS UPDATE: NY Court Flips Ruling in Reinsurance Suit ---------------------------------------------------------- In the appeal styled ROM REINSURANCE MANAGEMENT COMPANY, INC., ET. AL., Petitioners-Appellants, v. CONTINENTAL INSURANCE COMPANY, INC., AS SUCCESSOR TO HARBOR INSURANCE COMPANY, Respondent Respondent, 11809, 654480/12 (N.Y. App. Div.), the Appellate Division of the Supreme Court of New York, First Department, found that the Supreme Court, New York County, erred in its April 22, 2013, noting that its conclusion is supported by Volt Info. Sciences, Inc. v Board of Trustees of Leland Stanford Jr. Univ. (489 U.S. 468 [1989]) in which the Court held that where "parties have agreed to abide by state rules of arbitration, enforcing those rules according to the terms of the agreement is fully consistent with the goals of the FAA, even if the result is that arbitration is stayed where the Act would otherwise permit it to go forward." The dispute is related to Thorpe Insulation and/or J.T. Thorpe asbestos-related claims. A full-text copy of the Court's March 11, 2014, decision is available at http://is.gd/H2E5wVfrom Leagle.com. Appellants are represented by: Benjamin N. Gonson, Esq. Nicoletti Gonson Spinner, LLP 555 Fifth Avenue, 8th Floor New York, NY 10017 Tel: (212) 730-7750 Fax: (212) 730-7850 Michael S. Olsan, Esq. -- olsanm@whiteandwilliams.com -- at White and Williams LLP, in New York, for respondent. ASBESTOS UPDATE: Bankrupt's Suit v. Condo Owner Remanded -------------------------------------------------------- In December 2005, Christie purchased a condominium unit at Harbor Towers. In January 2009, she said she experienced physical symptoms related to exposure to asbestos that was removed from her bedroom's ceiling and continued to be exposed to the hazardous materials through June 2009. In August of 2008, while construction was ongoing at Harbor Towers, Christie filed for bankruptcy. Christie sued Harbor Towers asserting claims arising from her exposure to asbestos. The action was dismissed, and Christie appealed. On appeal, the Appeals Court of Massachusetts was asked whether Christie has standing to bring claims arising out of renovation of the building systems in her condominium building that allegedly resulted in personal injuries and property damage given that when she filed for bankruptcy she did not include these claims as an asset in that proceeding; and if Christie does not have standing, whether dismissal is the appropriate remedy. The Appeals Court, in a memorandum and order, remanded and instructed the Superior Court to stay the proceedings to allow the bankruptcy proceeding to be reopened. The Appeals Court held that Christie's claims have sufficient prepetition roots and are not entangled with Christie's ability to make an unencumbered fresh start. The Appeals Court concluded that Christie presently lacks standing to bring the claims on her own behalf because they are still within the bankruptcy estate. The Appeals Court said dismissing the claims outright would create a windfall for the defendants, if they engaged in the alleged wrongful acts, and the bankruptcy estate, as the real party in interest, should be afforded an opportunity to pursue the claims. As a result, the Appeals Court directed the Superior Court to stay the case and notify the federal bankruptcy court to allow the bankruptcy proceeding to reopen and have the claims added as an asset. The case is KAREN CHRISTIE, vs. HARBOR TOWERS CONDO TRUST I & II & others, NO. 13-P-377 (Mass. App.). A full-text copy of the Appeals Court's Decision dated Feb. 21, 2014, is available at http://is.gd/IcB50Nfrom Leagle.com. ASBESTOS UPDATE: Ruling in Monongahela Insurance Suit Affirmed -------------------------------------------------------------- The Circuit Court of Washington County in the case captioned TIG INSURANCE COMPANY, v. MONONGAHELA POWER COMPANY, ET AL., NO. 31, SEPTEMBER TERM 2013 (Md.), regarding the interpretation of insurance policies that may cover asbestos-related liability, ruled that Pennsylvania law applied to all policies at issue in the lawsuit. One of the insurers, TIG Insurance Company, appealed to the Court of Special Appeals, which affirmed the Circuit Court's ruling. TIG filed a petition for a writ of certiorari in the Court of Appeals of Maryland to review the Court of Special Appeals' decision. The Court of Appeals affirmed the Special Appeals Court's decision and adopted its well-reasoned opinion, with the exception of its two-paragraph discussion addressing TIG's argument that the place of countersigning a policy determines the applicable state law. The Court of Appeals pointed out that TIG's argument concerning the countersignature provision was not preserved in the Circuit Court and the record was insufficiently developed on that issue. Accordingly, the Court of Appeals explicitly did not adopt the two paragraphs of the Court of Special Appeals' opinion that discuss that issue, and expressed no opinion as to the merits of the court's analysis of that issue. A full-text copy of the Court of Appeals' Feb. 24, 2014, decision penned by Judge Robert N. McDonald is available at http://is.gd/zfcEsyfrom Leagle.com. ASBESTOS UPDATE: Defendants in Ala. PI Suits Win Summary Judgment ----------------------------------------------------------------- Judge C. Lynwood Smith, Jr., of the U.S. District Court for the Northern District of Alabama, Middle Division, issued a ruling on Feb. 21, 2014, in two mesothelioma lawsuits, holding that the motions for summary judgment filed by defendants MeadWestvaco Corporation and MW Custom Papers, LLC, are due to be granted. The actions were originally filed in the Circuit Court of St. Clair County, Alabama, against numerous defendants, including The Mead Corporation and MeadWestvaco. The gravamen of all of the claims in the two lawsuits were the allegations that the deceased plaintiffs had contracted mesothelioma as a result of their exposure to airborne asbestos fibers while they were working in, among other places, The Cement Asbestos Products Company. Judge Smith said a final judgment consistent with his opinions will be entered. The first case is Patricia Archer, Individually and as Personal Representative of THE ESTATE of CHARLES RICHARD ARCHER Plaintiff, v. MEAD CORPORATION, et al., Defendants, CIVIL ACTION NO. CV-05-S- 2466-M (N.D. Ala.). A full-text copy of Judge Smith's decision is available at http://is.gd/CDKsT8from Leagle.com. ASBESTOS UPDATE: 11th Cir. Affirms Misrepresentation Suit Ruling ---------------------------------------------------------------- A three-judge panel composed of Judge Gerald Bard Tjoflat, Stanley Marcus and Peter T. Fay of the U.S. Court of Appeals for the Eleventh Circuit affirmed a lower court's ruling granting summary judgment to the defendants in the lawsuit captioned THOMAS UHLIG, Plaintiff-Appellant, v. DARBY BANK & TRUST CO., et al., Defendants, DRAYPROP, LLC, DRAYPARK, LLC, MICHAEL BROWN, MARLEY MANAGEMENT, INC., REUBEN CROLL, Defendants-Appellants, NO. 13- 14989 (11th Cir.). Thomas Uhlig made a bet in a high-rise condominium building in downtown Savannah, Georgia. He sued the defendants after being frustrated with the pace of renovations and what he felt were misrepresentations about the presence of asbestos and the need for abatement in the condominium. The Circuit Court ruled that Uhlig's claims against Brown and Croll fail because Uhlig cannot show that either man acted as an individual, not on behalf of one of a number of LLCs. Uhlig's claims against Drayprop and Marley also fail, this time because for each claim -- breach of contract, negligent misrepresentation, and fraudulent misrepresentation -- Uhlig lacks any evidence supporting at least one essential element, the Circuit Court further ruled. A full-text copy of the Circuit Court's opinion is available at http://is.gd/3wtK2Sfrom Leagle.com. ASBESTOS UPDATE: Limitations Bar Claims v. Federal-Mogul -------------------------------------------------------- Judge F. Dennis Saylor, IV, of the U.S. District Court for the District of Massachusetts, in a product liability action arising out of alleged asbestos exposure, granted the defendants' motion for judgment on the ground that the limitations has expired. As of Dec. 27, 2007, the effective date of the plan of reorganization for Federal-Mogul, the Defendants were granted a discharge and the automatic stay was lifted. Because the limitations period for the Plaintiff Nora Barraford's claim had expired while the Defendants were in bankruptcy, the Plaintiff had 30 days from Dec. 27, 2007, to file suit, under the provisions of the Plan, unless another non-bankruptcy law or agreement extended the period to file. The Plaintiff did not file its action until November 2012, nearly five years after that 30-day window expired. The Bankruptcy Code does not operate to save the Plaintiff's claims from dismissal on statute of limitations grounds, Judge Saylor ruled. The case is NORA M. BARRAFORD, Individually and as Executrix of the Estate of DANIEL M. BARRAFORD, by her agent THE FEDERAL-MOGUL ASBESTOS PERSONAL INJURY TRUST, Plaintiff, v. T & N LIMITED, f/k/a T&N PLC, f/k/a Turner & Newall Plc, and f/k/a Turner & Newall Limited; and TAF INTERNATIONAL LIMITED, f/k/a Turners Asbestos Fibres Limited, and Raw Asbestos Distributors Limited, Defendants, CIVIL ACTION NO. 12-CV-10013-FDS (D. Mass.). A full-text copy of Judge Saylor's Decision dated Feb. 25, 2014, is available at http://is.gd/YsF127from Leagle.com. ASBESTOS UPDATE: "Phillips" Suit Remanded to Calif. State Court --------------------------------------------------------------- Judge Claudia Wilken of the U.S. District Court for the Northern District of California granted plaintiff David Phillips' motion to remand his asbestos-related personal injury lawsuit back to San Francisco superior court, holding that the Plaintiff has expressly disclaimed and waived any claim arising out of or related to any asbestos exposure aboard federal jobsites and navy vessels. This, Judge Wilken, said removes any claims to which military contractor immunity might act as a defense. The case is DAVID PHILLIPS, Plaintiff, v. ASBESTOS CORPORATION LIMITED, et al., Defendants, NO. C 13-5655 CW (N.D. Calif.). A full-text copy of Judge Wilken's Feb. 26, 2014, Order is available at http://is.gd/EsQ6zAfrom Leagle.com. ASBESTOS UPDATE: "Baldwin" Suit Remanded to Del. State Court ------------------------------------------------------------ Judge Sherry R. Fallon of the U.S. District Court for the District of Delaware in a Feb. 26, 2014, report and recommendation, recommended that the motion to remand to state court filed in the asbestos-related personal injury lawsuit captioned PAULA BALDWIN, AS ADMINISTRATOR OF THE ESTATE OF GEORGE BALDWIN SR., AND PAULA BALDWIN, INDIVIDUALLY Plaintiff, v. ACE HARDWARE CORP., et al., Defendants, CIVIL ACTION NO. 13-1986-SLR-SRF (D.Del.), be granted, after finding that defendant Crane Co.'s notice of removal was untimely. A full-text copy of Judge Fallon's Decision is available at http://is.gd/n6bCxKfrom Leagle.com. ASBESTOS UPDATE: Ruling in Homeowners' Insurance Suit Affirmed -------------------------------------------------------------- The Court of Appeals of California, First District, Division One, on Feb. 28, 2014, affirmed a trial court's order granting Allstate Insurance Company summary judgment in a bad faith action brought by insured homeowners, Robert and Patricia Meuser, arising from Allstate's handling of their fire loss claims. In the lawsuit, the Meusers maintain, among other things, that Allstate concealed asbestos benefits available under their policy, failed to produce documents relevant to a potential claim for those benefits, and caused them to lose out on approximately $6,500 in asbestos-related policy benefits. The Court of Appeals held that "As an initial matter, the policy provided no 'asbestos benefits.' It did cover demolition costs and presumably would have covered asbestos testing or abatement required in connection with demolition, if any asbestos had been present at sufficient levels. There was no actual evidence any asbestos had been present at a level requiring abatement upon demolition. The Meusers' own expert found no trace of asbestos at the site, and there was no evidence the Meusers suffered any injury or damage as a result of the lack of testing or abatement. As for nondisclosure of "claims-related" documents, the trial court correctly found no violation. The blank, unused forms in issue were not claim-related documents as defined in the standard form language that was part of Allstate's policy. As the trial court found, there was no evidence to support any cause of action based on Allstate's alleged concealment of asbestos benefits or documents." The case is ROBERT MEUSER et al., Plaintiffs and Appellants, v. ALLSTATE INSURANCE COMPANY, Defendant and Respondent, NO. A136243 (Cal. App.). A full-text copy of the Court's decision is available at http://is.gd/b5grN3from Leagle.com. ASBESTOS UPDATE: Toro Company's Bid to Dismiss "Soucy" Denied ------------------------------------------------------------- Judge Nancy Torresen of the U.S. District Court for the District of Maine on Feb. 27, 2014, denied defendant Toro Company's motion to dismiss the asbestos-related personal injury lawsuit captioned TAMMIE D. SOUCY, individually and as personal representative of the estate of BRYAN SOUCY, Plaintiff, v. BRIGGS & STRATTON CORPORATION, et al. Defendants, CIVIL NO. 1:13-CV-00068-NT (D.Me.), holding that, ultimately, the Plaintiff may be required to identify the particular asbestos-containing Toro products to which Soucy was exposed but in some circumstances, it may not be necessary to identify the particular products to demonstrate liability. A full-text copy of Judge Torresen's Decision is available at http://is.gd/gfzDszfrom Leagle.com. ASBESTOS UPDATE: Bid to Exclude Testimony in Utah PI Suit Denied ---------------------------------------------------------------- Judge Ted Stewart of the U.S. District Court for the District of Utah denied defendant Crane Co.'s motion to exclude specific causation testimony from plantiff Arva Anderson's medical causation witness, Dr. Jerrold Abraham, finding that Dr. Abraham's opinion is clearly based on the Plaintiff's testimony in combination with other scientific evidence. The case is ARVA ANDERSON, Plaintiff, v. FORD MOTOR COMPANY, et al., Defendants, CASE NO. 2:06-CV-741 TS (D. Utah). A full-text copy of Judge Stewart's Decision is available at http://is.gd/NIXeHefrom Leagle.com. ASBESTOS UPDATE: Md. Court Denies Bid to Remand "Citrano" Suit -------------------------------------------------------------- Dennis C. Citrano, now deceased, sued General Electric Company and others for strict liability and other state law tort claims. The plaintiff sued GE and other defendants in the Circuit Court for Baltimore City for injuries resulting from his exposure to asbestos from 1960 to the late 1970s while working as an electrician. GE removed to the U.S. District Court for the District of Maryland, Northern Division. Pending is the Plaintiff's motion to remand or to sever and remand the claims of the non-removing defendants. District Judge William D. Quarles, Jr., on Feb. 26, 2014, denied the motion, finding that the Plaintiff's six state law tort claims against 36 non-removing defendants substantially predominate over the single federal issue in the case -- GE's assertion of the federal officer defense. However, Judge Quarles ruled that if GE's federal defense fails and it is found liable in federal court, severing the claims will likely prejudice GE's ability to seek contribution through cross claims against the other defendants proceeding in state court. The case is DENNIS C. CITRANO, et al., Plaintiffs, v. JOHN CRANE- HOUDAILLE, INC., et al., Defendants, CIVIL NO. WDQ-13-2158 (D.Md.). A full-text copy of Judge Quarles' memorandum opinion http://is.gd/HQI3iDfrom Leagle.com. ASBESTOS UPDATE: Research Says Fibro Causes Autoimmune Responses ---------------------------------------------------------------- Surviving Mesothelioma, citing a scholarly study out of Idaho State University, reported that mesothelioma and lung cancer are not the only risks associated with exposure to toxic minerals like asbestos. The study finds that asbestos also has a negative effect on the immune system. Once heavily used in construction and manufacturing, asbestos has been known for decades as the cause of mesothelioma, a rare but serious cancer. In recent years, another mineral called erionite has been suspected of causing mesothelioma. In the US, erionite has been found in gravel mined and used on roads, particularly in the state of North Dakota. Although the risks of mesothelioma from erionite and asbestos are understood, less is known about the immune system's response to these minerals. In a report in Toxicology and Applied Pharmacology, researchers used immune system cells called macrophages derived from bone marrow to measure the toxic effects of erionite and amphibole asbestos. They found that both compounds increased the production of cytokines, a measure of immune system activation. In addition, the research team exposed mice to equal amounts of either erionite or asbestos in their tracheas. When their blood serum was examined seven months later, both categories of mice were found to have more frequent anti-nuclear antibodies and elevated levels of several key immune system proteins. An examination of their kidneys found that immune system waste products were increased from 33% in mice treated only with saline to 90% among the erionite-exposed mice. As a result of improved public education, many people are now aware of the connection between asbestos and mesothelioma, but even those who have been exposed may be unaware of the threat to their immune systems. In a summary of their findings, the Utah research teams conclude, "These data demonstrate that both erionite and amphibole asbestos induce autoimmune responses in mice, suggesting a potential for adverse effects in exposed communities." ASBESTOS UPDATE: Fibro Slows Down St. Nicholas House Demolition --------------------------------------------------------------- BBC News reported that the demolition of the former headquarters of the city council of Aberdeen, in Scotland, has been "slowed down" by the discovery of asbestos, the local authority has said. Asbestos has been found in some of the divisions between units of windows at St Nicholas House. Work on the tower has slowed, but is continuing elsewhere on the site. More than 1,000 council staff vacated the 14-storey building, erected in 1968, for the newly-refurbished Marischal College building in 2011. The Health and Safety Executive has been informed of the discovery. A council spokesperson said: "This discovery was entirely unexpected and could not have been reasonably foreseen. "There is no risk to public health." ASBESTOS UPDATE: Fibro Drilling Mud Exposure a Concern Years Later ------------------------------------------------------------------ Heidi Turner, writing for Lawyers and Settlements, reported that one of the recurring themes with asbestos, whether dealing with asbestos drilling mud, asbestos in construction or asbestos in any of a number of other industries, is that asbestos exposure can come back to haunt a person many years later. And it does not matter if a person was exposed to asbestos through drilling mud or any other manner, that exposure has been linked to illness decades after the fact. Workers who used asbestos in drilling mud, mixing it into the mud for its bonding and heat-resistant qualities, were routinely exposed to asbestos from the 1960s to the 1980s, often without the proper protective gear, putting them at risk of serious health problems such as mesothelioma, asbestosis and lung cancer. These workers can include mud engineers, roughnecks, mudhands, drillers and floorhands. Decades after they were exposed to asbestos, they can be diagnosed with asbestos-related diseases. Some of these workers have filed lawsuits against the companies they hold responsible for their asbestos exposure, for failing to protect employees from the carcinogen. According to Law360, 10 plaintiffs filed a lawsuit (case number 3:13-dv-00477) against a variety of oil companies, alleging the companies knowingly exposed workers to asbestos, causing the workers to develop "asbestos maladies." In fact, many asbestos lawsuits allege the companies involved either knew or should have known about the risks to their employees of asbestos exposure, but failed to either warn employees or properly protect them. Over the course of a career in certain industries, employees could be exposed to asbestos from a number of sources, and a variety of companies, which is one reason many asbestos lawsuits involve a number of defendants. One asbestos drilling mud lawsuit resulted in an award of $322 million for the plaintiff, who alleged he developed asbestosis as a result of asbestos exposure while mixing drilling mud. That award, however, was thrown out after the defendants, Union Carbide Corp., argued the judge was biased because his parents had been involved in similar litigation. On a second trial, a jury found in favor of Union Carbide Corporation, according to Associated Press. ASBESTOS UPDATE: Fibro Delays Reopening of Tyne Tunnels ------------------------------------------------------- ITV.com reported that refurbishment works on the historic Grade II-listed Tyne Pedestrian and Cyclist Tunnels, in the United Kingdom, are to take longer than expected because of asbestos. The tunnels are now expected to re-open in February 2015. The replacement shuttle bus and the night service for shift workers will continue. The tunnels were expected to re-open in August this year. They closed for refurbishment in May 2013. Paul Fenwick, project director for the tunnel's owner, stated "Conditions in the tunnel have proved a lot worse than we anticipated and major works to treat asbestos containing materials, the presence of which we could have had no knowledge of before the works started, are now necessary if the tunnels are to continue to be an important transport link for future generations. "The alternative transport measures we put in place -- providing a free replacement shuttle bus and a Night Service -- have proved highly successful and will continue until the tunnels re-open." ASBESTOS UPDATE: Council Considering Abatement at Windsor Center ---------------------------------------------------------------- Steven Crighton, writing for Journal Inquirer, reported that the council of Windsor, Connecticut, began deliberations on a $310,000 project to remove floor tiles containing asbestos from L.P. Wilson Community Center. There are approximately 18,000 square feet of asbestos floor tiles throughout the corridors at the building, many of which are in poor condition and in need of removal, Public Works Director Brian Funk said. The project would remove up to approximately 15,000 square feet of tile throughout various areas of the building and replace it with vinyl tile. Staff would prioritize areas that are of greatest concern, Funk said, but also would take into consideration the logistics of the building. ASBESTOS UPDATE: Bid to Reclaim Fibro Care Costs Pending -------------------------------------------------------- Press Association reported that the medical costs of treating people who suffered "industrial" diseases linked to asbestos could be reclaimed under legislation lodged at the Scottish Parliament. More than GBP20 million is spent each year by the NHS in Scotland diagnosing and treating people from the effects of exposure to asbestos, including diseases like mesothelioma, according to pressure group Clydeside Action on Asbestos. Phyllis Craig, who chairs the group, said: "We are urging the Scottish Parliament to address this issue as a priority. "It is widely accepted that the number of people being diagnosed with mesothelioma continues to increase, placing an ever greater burden on the NHS and palliative care services. "The responsibility for meeting these costs rests with the employers who exposed their employees to asbestos, contributing to the development of their illness. "It is only just that the employers have to meet the costs of care that result from their negligence." Alan Kirk, a surgeon and director of the group, estimated the cost for diagnosing and managing mesothelioma -- a tumour on the lining of the lung -- runs to about GBP60,000 a patient. "If these sums can be recovered as part of the civil compensation case, funds are going back into the NHS to help to care for the Scottish population," he said. The group is working with SNP MSP Stuart McMillan to change the law. He said: "The emotional and physical cost of being diagnosed with an asbestos related condition can be significant and it's the welfare of the person with the illness that is paramount. "However, there is a substantial financial cost to the NHS in diagnosing and managing asbestos related conditions and this is something that needs to be addressed as a matter of urgency." Mr McMillan said he expects strong resistance to the move from insurers. But it is supported by the Scottish Trades Union Congress (STUC). Dave Moxham, deputy leader of the STUC, said: "The insurance industry has managed to avoid meeting their full responsibilities towards those with an asbestos related disease for decades. "It is vital that people who are undergoing investigations for suspected asbestos related disease, or who need ongoing care and support to manage their condition, can access the health services that they need. "The NHS and palliative care services currently have to meet these costs from their own overstretched funds. "It is time for the employers and the insurance industry to meet their obligations and reimburse the cost of the medical care as these costs would not exist if there had not been negligence on the part of the employer." ASBESTOS UPDATE: Expert Denies Writing Letter During Trial ---------------------------------------------------------- Heather Isringhausen Gvillo, writing for Legal Newsline, reported that as a rare asbestos trial continues in Madison County, Ill., day three was devoted entirely to the testimony of plaintiff witness Dr. Berry Castleman, who works in the field of toxic substances control. While a large majority of Castleman's testimony traced the timeline of public knowledge of asbestos dangers from 1898 until after the 1970s, defense attorney Jim Lowery briefly strayed from the narrow line of questioning during cross examination to mention a letter believed to be written by Castleman to medical researcher Irving Selikoff urging him to seal parts of his research. Lowery asked Castleman if he ever asked Selikoff not to disclose portions of his research in a memorandum. Castleman said he recognized the memorandum only from a previous allegation in a trial in 2010, and added that if it had actually come from him, it likely would have had a signature and a letterhead, which it did not. "I have no memory of writing this and I don't recognize it," Castleman said. The memorandum in question was allegedly written on Nov. 5, 1979, and proposes the idea that attorney Ron Motley, who founded the Motley Rice law firm and passed away last year, believed defense lawyers were attempting to avert liability by showing that insulators knew of the asbestos-related risks of their jobs. Castleman said during his testimony that he worked with Motley's firm, but never testified on his behalf. The letter goes on to suggest that defendants would try to obtain questionnaire materials used in his studies in order to pinpoint where the workers first became aware of the dangers. "Ron and other plaintiffs lawyers are afraid that some of the men would have answered with 20-20 hindsight, recalling vaguely that 'I heard something back in the early 40s,'" the letter stated. "Discovery of each statements in writing, even though made without much care and without any knowledge that rights to compensation might be jeopardized, without any consultation with their attorneys, could throw out individual claims," it continued, "further, a significant number of such statements pre-1964 would hurt the state-of-the-art case for all the plaintiffs." Aside from the brief interruption, Castleman began his testimony with the history of knowledge relating to asbestos and health risks. Under questioning by plaintiff attorney Frank Wathen, he testified that the first published article about asbestos and its hazards in the English language was a government document in 1898 submitted to the British Parliament. "Where (asbestos particles) are allowed to rise and remain suspended in the air of a room, in any quantity, the effects have been found to be injurious, as might have been expected," the article stated. Castleman said that prior to the 1930s, asbestos articles focused on minors and factory workers making the products. Then in the early 1930s asbestos disease cases spread to those who used the asbestos-containing products and clerical workers in asbestos factories. In 1946, maximum allowable concentrations, later called threshold limit values, were established, which suggested five million particles of asbestos dust per cubic foot of air or less was acceptable. The threshold was merely advised rather than required, and was based on studies concluding that workers exposed to a greater concentration of asbestos had an increased risk of developing disease. Castleman, who received a doctorate in public health, said five million particles per cubic foot appears like regular air, adding that if workers are exposed to visible dust clouds then the concentration is at dangerous levels. While no exposure is necessarily considered safe, corporations needed obtainable standards that were technologically possible. Castleman added that there would have to be 50 to 60 million particles per cubic foot of air in order to appear hazy, which is roughly 10 times greater than the advised amount. During cross examination by Lowery, he questioned Castleman on the leniency of the threshold, which is presented as a tentative placeholder until more information on health hazards involving asbestos is available, but it was not a standard law. "It wasn't the law of the land and it wasn't taken seriously as far as I can tell," Castleman said. "So we can add the state Legislature to the list of corporations who let these people die, correct?" Lowery asked in response. "It sounds like there's a hint of conspiracy there," he added. By the 1950s, articles linking asbestos exposure and cancer development made their way to the general public through magazines and newspapers. However, warning labels were not required by the government and big companies would be at a "competitive disadvantage" by including warning labels on their products, Castleman said. "I call it the Wild Wild West Era," Castleman said. During cross examination, Castleman recognized that studies as early as 1930s attempted to establish safety standards when working with asbestos, including wetting the mineral to avoid dust and proper respiratory protection. Lowery also addressed two studies that specifically said gaskets are not hazardous. He first presented the Fleischer Drinker study from 1946 that focused primarily on Navy ships to determine if people working with pipe covering had an increased risk of asbestos-related illness. Castleman pointed out, however, that a disclaimer at the bottom of the front page clarifies that the opinions are not to be construed as those of the Navy. Lowery then brought up a 1971 P.G. Harries article focusing on an approach to improving asbestos exposure in the Navy. Castleman found the ideas inconsistent but couldn't confirm their accuracy. Was Crane Co. aware of the hazards? During Castleman's testimony, Wathen switched gears and focused on Crane Co.'s advertising methods beginning in the 1940s, listing a number of magazines and articles addressing asbestos dangers in which Crane Co. provided advertisements for their products. Castleman testified that he agrees it is reasonable to assume Crane Co. was not unaware of asbestos hazards and that it was reasonable to provide warnings. "It was reasonable in the sense that that's what these workers would have expected to be done," he said. During cross examination, Castleman agreed there is no evidence that Crane Co. received the magazines in which they advertised. An article from 1944 and another from 1946 were shown to the jury as examples of the magazines Crane Co. advertised in, both of which discussed asbestos along with a number of other industrial toxins. Neither of the articles connected asbestos to cancer. However, he added that he would be "amazed" if Dr. Andrew Harvey didn't read the articles. Harvey was Crane Co.'s industrial physician at the time. Lowery turned the tables on Castleman bringing up some of the articles he wrote, asking him to name just one other article in those journals. Castleman testified that couldn't remember those articles now -- years later -- but that he probably read them at one point. What about the Navy? During cross examination, Lowery then switched gears to the Navy's knowledge of the health risks asbestos-containing products posed for employees. Castleman began by pointing out that in his studies, he was specifically interested in the Navy's documentation of its awareness of asbestos hazards, unconcerned with the products used aboard the ships and when. He said the Navy knew of asbestos dangers as early as 1943 and was looking for ways to minimize dust accumulation. Lowery suggested during questioning that the Navy has complete control aboard its vessels and asked if there was nothing Crane Co. did that the Navy did not already know pertaining to the hazards. Castleman agreed, but said he doesn't believe everyone aboard the ships knew about the potential asbestos dangers. Ultimately, though, Castleman contends that the sellers or manufacturers of the products understand their hazards better than the buyer. The manufacturer knows how the product is intended to be used and knows that forms of testing should be done, he said. "If they have the knowledge that the dust is lethal, then they know all the ways their product could generate dust," he continued. Industrial hygienists and physicians can attempt to understand products, but they wouldn't know them like the manufacturer, Castleman said. "Nobody knows better than the manufacturer how the products are used," he said. ASBESTOS UPDATE: Geologists Take on Key Health Problem ------------------------------------------------------ Susan M. Reiss, writing for Livescience.com, reported that a new breed of geologists is going beyond traditional fields and rocking the connection between living organisms and earth materials. Steven Lower and Eric Taylor are part of this new breed. While Taylor, now a professor at Kent State University, was a doctoral student in Lower's Ohio State University lab, the two embarked on a study to discover the molecular mechanism driving mesothelioma, an incurable form of cancer that affects the lung, chest cavity and the lining of the abdomen. This aggressive cancer can develop when humans are exposed to asbestos, a term that refers to six naturally occurring silicate mineral fibers. To learn more about how these fibers may trigger cancer development, Taylor and Lower focused on crocidolite or blue asbestos, the deadliest of the fibers. Because crocidolite is long and thin, it can lodge among the lungs' mesothelial cells, which secrete lubricant to maintain the lung's slippery, protective coating. Unlike another asbestos fiber, chrysotile, which the lungs can flush out, crocidolite never dissolves and persists in the lungs for many years. Through a series of experiments, the geologists tested whether crocidolite binds to epidermal growth factor receptor (EGFR), a protein receptor on the lung cell surface that initiates cell division. They found that crocidolite continually binds and unbinds with EGFR. When it does so, "crocidolite signals or triggers a potent response that may tell the cells to proliferate," says Lower. "This may help explain why cancer develops." The geologists suspect that creating a small molecule that can coat crocidolite fibers may prevent the fibers from binding to EGFR, and thereby prevent the proliferation of cancer cells. Although the development of such a molecule probably is several years away, Taylor worked with chemist Roberto Lins at the Federal University of Pernambuco, Brazil, to develop supercomputer simulations to model the binding action of asbestos with EGFR. Understanding exactly how crocidolite attaches to EGFR could help the researchers tailor a molecule that would wedge between the two substances. Lower and Taylor published their findings in Langmuir, and several more related papers are forthcoming. Lower is also pursuing similar work with carbon nanotubes. "They are very similar to asbestos, with their long, narrow shape, and a recent study suggests that nanotubes can trigger a similar pathogenic response as asbestos," he says. "There is some concern that nanotubes in manufacturing could be a cancer issue." ASBESTOS UPDATE: Wantirna Reserve Fenced Off After Fibro Detected ----------------------------------------------------------------- Thomas O'Byrne, writing for Maroondah Leader, reported that an asbestos scare has forced a local council to fence-off an area of a popular public reserve in east of Melbourne, Australia. In a statement, Maroondah Council chief executive Frank Dixon said material containing asbestos was uncovered during excavation works at a section of the Dandenong Creek walking trail in Wantirna. Dirt filling used during those excavations was also being stockpiled at the nearby JW Manson Reserve -- a public reserve which is regularly used by local cricket clubs. Council's statement did not detail when the asbestos was discovered, nor did it confirm whether the stockpiled material at JW Manson Reserve had also tested positive for asbestos. Council had not responded to requests for further detail this afternoon. Since the asbestos was discovered, Mr Dixon said both the Dandenong Creek worksite and stockpile at JW Manson Reserve had been covered, fenced and signed to ensure they remain contained. "Any remedial action will be undertaken in line with EPA requirements and with community safety at the forefront," Mr Dixon said. "Council will keep the community updated on the removal of the stockpile material and the progression of the investigation." Following a landslip in 2011, a section of the Dandenong Creek walking trail was deemed unstable and was closed to the public. Mr Dixon said further testing for asbestos will take place in the areas of Dandenong Creek not yet excavated. ASBESTOS UPDATE: Half of Coventry Schools Still Contain Fibro ------------------------------------------------------------- Simon Gilbert, writing for Coventry Telegraph, reported that asbestos can be found lurking in more than half of the schools in Coventry, United Kingdom, figures show. Some 50 of the 96 council-run schools in the city contain the material which can be dangerous if disturbed. Out of the 80 primary schools in the city, 44 were shown to contain asbestos which has been linked to causing diseases such as terminal mesothelioma and often fatal lung cancer. Six of the city's eight special schools -- caring for youngsters with physical or learning disabilities -- were also found to contain the material. The data was revealed following a Freedom of Information request by the Telegraph to the council. Health and safety chiefs say the presence of asbestos alone should not cause concern -- as long as it is managed properly. Asbestos was used extensively as a building material in Britain from the 1950s to the 1990s and is linked to around 4,500 deaths a year. Serious, often fatal diseases, can be caused when asbestos fibres are released from materials, becoming airborne and get inhaled. Asbestos has an average 30 to 40-years latency period between exposure to asbestos fibres and the onset of disease. The substance is only likely to become dangerous if fibres are released from the material when it is disturbed, damaged or degrades over time. Management of asbestos is the responsibility of head teachers at individual schools. It is each school's duty to know where it is, what condition it is in and manage the risks from asbestos to employees and others. They must also ensure that anyone who is likely to work on, or disturb, asbestos is provided with information about its location and condition. A spokesman for Coventry City Council said there were no plans to pro-actively remove the substance from schools in the city. He said: "Each school has an asbestos assessment so it can identify where it exists and ensure it is not disturbed to maintain the safety of pupils and staff. "If any refurbishment or extension work takes place that disturbs existing asbestos then the asbestos would be removed safely at the time of the building work." The Health and Safety Executive explained many schools built before the year 2000 contain some form of asbestos. It is commonly found in lagging, thermal insulation, fire protection, partitioning and ducts, ceiling tiles, floor tiles, cement roofing and guttering and textured coatings. Guidance from HSE said: "A large number of schools and other public buildings contain asbestos -- often in the fabric of the building. "Its presence alone should not cause concern provided it is managed properly. "There are strict legal duties on schools to manage asbestos containing materials. "Where HSE has undertaken inspections of schools it has found that most have good standards for managing asbestos in their buildings." ASBESTOS UPDATE: Cancer Scare at STATIN, Fibro Found on Premises ---------------------------------------------------------------- The Gleaner reported that the leadership of the Statistical Institute of Jamaica (STATIN) has gone quiet after an initial report to staff that they might have been exposed to the deadly cancer-causing agent, asbestos. Sunday Gleaner sources say the fear of contracting cancer is paralysing STATIN employees following five cancer-related deaths from eight diagnoses. While there is nothing to link these eight cases to the hazardous lung cancer-causing material, the administration at STATIN has confirmed that air-quality tests at its head office at Cecelio Avenue, St Andrew, have shown traces of asbestos, which is a mineral fibre commonly used in a variety of building construction materials for insulation and as a fire retardant. Medical authorities have repeatedly warned that the inhaling of small particles of asbestos can lead to lung cancer. Persistent exposure to asbestos fibres can cause asbestosis, a condition where an accumulation of the fibres leads to the scarring of lung tissue and shortness of breath, or mesothelioma -- a rare form of cancer. Several local institutions -- ranging from the National Water Commission to the Jamaica Fire Brigade, St Joseph's Hospital and the Downtown Kingston Craft Market -- have had to deal with their own asbestos crises in recent years. In most cases, staff or users of the facilities were relocated while specialised teams removed the threatening material. But there is no word yet on what is to be done at STATIN. Repeated efforts to contact the director general of the agency, Carol Coy, and her deputy, Shelly Winston, were unsuccessful. PERSISTENT COUGH But head of the Jamaica Civil Service Association, O'Neil Grant, said representatives at the agency confirmed that traces of asbestos were found after tests were done following a persistent cough by an employee. According to Grant, the test was done by the National Environment and Planning Agency and an independent party. He said traces of asbestos was found near an air-conditioning duct. Grant told our news team that following the disclosure, "employees were barred from entering the area for a while as repair work was done". He confirmed that the staff was told about the findings of the test after an employee presented a letter from a lawyer. "Since then, no other information has been forthcoming," added Grant, even as he indicated that there is no obvious link to the present problem and the cancer-related deaths of some employees. When our news team visited STATIN's head office, some employees could be seen on the outside of the building as news spread that an employee had developed respiratory problems, and a doctor had determined that the cause of the illness was "environmental". "Eight employees associated with STATIN for a long time took ill. Five have died from cancer, two last year. In the space of two weeks after they found out they have it, they died," claimed a Sunday Gleaner source. According to the source, on February 10, STATIN officials informed the staff that asbestos was found at one of the intakes to an air- conditioning duct. They source said the administration claimed the area was covered on February 9. SECOND TEST DONE "Somebody there was having some respiratory problems and sought medical attention and doctors did all relevant tests. The doctor concluded that the illness must be environmental. A lawyer then wrote the authorities at STATIN and an air-quality test was done a few months ago," said the source. The source said during the February 10 announcement, the administration reported that a second air-quality test was done after the area was covered, and the samples were sent to the United States. "The results were promised within a week, but a week gone and people really jumpy because nothing has been said. Employees now feel as if they are tied to a rope because they do not know if missing work meant they were losing days. "Seven of the eight persons diagnosed with cancer work upstairs, where the vent is located, and one works downstairs," the source told The Sunday Gleaner. The source said news of the cancer diagnoses and deaths has set hearts racing, with staff even more upset that the result of the second air-quality test has not been made public despite being promised within a week. According to the source, "The fear of lawsuits, plus the real fear of getting cancer, has turned everybody into idiots, because it was one of the worst public- relations job ever done. They never made the announcement through the public-relations person. They went to the intercom, and from people hear asbestos, they didn't want to hear anything else." Added the source: "The fear of the unknown is killing people because no one knows if the area was properly covered. They said they are going to remove the asbestos, but no one knows how long it's going to be in the air. Everybody afraid." STATIN, an agency of the Ministry of Finance, is mandated to, among its core functions, collect, compile, analyse, abstract and publish statistical information relating to the commercial, industrial, social, economic and general activities and condition of the Jamaica people. It also collaborates with public agencies in the collection, compilation and publication of statistical information, including statistical information derived from the activities of such agencies. ASBESTOS UPDATE: Treatment for Fibro-Link Cancer Evaluated ---------------------------------------------------------- The Herald reported that scientists are to evaluate a potential new treatment for patients with an aggressive form of lung cancer which has been linked to asbestos exposure. Eight clinical trial sites are being set up to investigate a way of targeting cancer stem cells for people diagnosed with pleural mesothelioma, which kills more than 2500 people each year. It can take between 30 and 40 years to develop but when symptoms begin, it can be too late for treatment. Most sufferers, many of whom worked in construction, shipbuilding or railways, die within 12 months of diagnosis. Doctors said existing treatments were limited and there was an urgent need for a new approach. A total of 11 countries are taking part in the study, with eight research centres planned for the UK. It comes after legislation was lodged at the Scottish Parliament which could pave the way for health boards to claw back the costs of treating the victims of asbestos-related disease from former employers. West of Scotland MSP Stuart McMillan said there was a "substantial financial cost to the NHS in diagnosing and managing asbestos- related conditions". Novelist James Kelman, who has campaigned for compensation for asbestos victims, said it was "a step closer to getting industry to take responsibility". ASBESTOS UPDATE: Port Lincoln Hospital Fibro Clean-up Underway -------------------------------------------------------------- ABC News reported that Country Health SA says a clean-up of asbestos at the hospital, in Port Lincoln, Australia, has begun, in accordance with required practices. Asbestos was recently discovered as part of a $39 million redevelopment of the hospital. A hospital insider has told the ABC some workers are worried they may have been exposed to the asbestos. Country Health SA says work was immediately stopped in affected areas, which were isolated to prevent any further disturbance. Specialist consultants have been engaged and information sessions held for staff and contractors to address their concerns. The extent of asbestos and remediation costs are still being determined. ASBESTOS UPDATE: Fibro Dispute at Historic Younkers Bldg. Heats Up ------------------------------------------------------------------ Jason Clayworth, writing for Des Moines Register, reported that a contractor initially involved in renovations at the former Younkers building in downtown Des Moines claims that hundreds of people are being exposed daily to asbestos or lead poisoning at the site. Multiple state officials say a complaint about the asbestos made to 11 state and federal officials Jan. 29 is unfounded -- and a company overseeing the renovation work filed a lawsuit this month alleging multiple counts of libel against RedNet Environmental Services of West Des Moines, the company making the asbestos allegations. A director of a national advocacy group for proper asbestos cleanup additionally says that testing on the site appears to have been done properly, which he concluded after being asked by the Register to view the two environmental studies used for site renovations. But an official from the Iowa Department of Natural Resources, which enforces federal environmental protection standards, said investigators will revisit the site in light of the asbestos allegations. The state environmental official told The Des Moines Register that some construction work did in fact begin improperly, which he described as a minor infraction that resulted in "a serious discussion" with the contractors, but no formal fines or actions. In addition, the Register's investigation into the allegations shows that none of the three state agencies involved in reviewing the complaint filed by RedNet Environmental Services has requested a copy of or compared two key reports that reach different conclusions about the presence of asbestos in the former Younkers building. One of those reports, written by Iowa Environmental Services, led an owner of RedNet, Rob Knudsen, to conclude the current situation at the former Younkers building is "no different or maybe even worse than the Equitable Building with Bob Knapp." Knapp, a prominent Iowa developer, was sentenced in 2011 to 41 months in prison for his involvement in a conspiracy to ignore federal asbestos regulations in redevelopment of another downtown Des Moines building. The 106-year-old former Younkers building, now known as the Flagship Building, is expected to reopen in 2014 with 120 apartments and is billed as a cornerstone in Des Moines' efforts to revitalize Walnut Street. An attorney for Hansen Construction, a Johnston-based company in charge of renovations, said he believes that RedNet's asbestos allegations are a result of that company's failure to secure a work agreement for the renovation project. "Everything" is inaccurate in RedNet's Jan. 29 complaint, attorney Jeffrey Stone of Des Moines told the Register. "There's not one accurate statement in that letter as far as the allegations go." RedNet's three-page letter to state and federal regulators alleges multiple violations or unethical practices committed by Hansen Construction. The allegations include: * That workers on the site are being told to throw away materials presumed to have asbestos without any testing. * That personal air monitoring is not being done nor is it being posted for people working at or visiting the site to see. * And that more than $120,000 worth of scrap metal has been removed by Hansen employees which "would be virtually impossible not to create an asbestos and lead disturbance." The complaint also includes the July 26 letter Knudsen sent to a Hansen official alleging disparities between two asbestos surveys -- one by Iowa Environmental Services and another by New Horizons Enterprises. One disparity noted by Knudsen was that the Iowa Environmental report showed asbestos in drywall on the structure's fifth and six floors. The second report -- the one being used for ongoing asbestos work during the renovations -- did not indicate any presence of asbestos in those areas, Knudsen said. Knudsen told the Register the differences between the reports would equate to at least $200,000 in differences in cleanup costs. "At the end of the day, this is about making sure people are safe," said Knudsen, who also expressed concerns about lead abatement at the site. "Lead will make you sick but asbestos will kill you. And there's a 15- or 20-year latency period where you have no idea where you were exposed to it." Stone, the attorney for Hansen Construction, acknowledged differences in the reports. But he said the owner of the building, Alexander Co. of Madison, Wis., has reconciled the differences with further tests and concluded some asbestos findings in the first survey were inaccurate. "You have to know about those testing procedures and the margin of error," he said. "You could have the same company go out there twice and probably get different results when it's that close." However Tom Wuehr, a DNR official who helps enforce federal asbestos standards, said that in light of the differences brought to his attention by the Register, he will return to the site this week to further investigate the issue. "Certainly they are in possession of both reports and they need to be going off of both of them," Wuehr said. "Because if one company finds something and another doesn't, that doesn't mean you ignore it. Once you have a positive you have a positive. Period. You can't test your way out of it." The second environmental survey contains far more testing than the first one, said Brent Kynoch, the managing director of the Environmental Information Association, a group based in Maryland focused on health hazards in buildings, specifically asbestos. He said he did not see any indication that Hansen Construction has done anything improper, judging from his review of the complaints from RedNet and both reports provided to him by the Register. "Frankly, I read these reports and I think the whistle-blower has some bad blood," Kynoch said of RedNet's complaints. "They lost a job, and they're ticked off about it. If in fact they are as knowledgeable about stuff as they appear to be then they should know that the New Horizons report is significantly better than the Iowa Environmental Services report." Interviews or documents obtained by the Register show that investigations made by three agencies -- an Iowa labor commission inspector enforcing U.S. Department of Labor rules, the Iowa Department of Natural Resources and the city of Des Moines -- did not compare the two asbestos and lead reports. A fourth review from the state's economic development authority simply adopted the findings of the city without any review of its own, records show. Iowa's labor commissioner, Michael Mauro, criticized the allegations made by RedNet, Knudsen and his wife, Lynn, who wrote the complaint about Hansen Construction. "The charges they made were very straightforward, direct and -- to be honest with you -- defaming," said Mauro, who helps oversee guidelines established by the federal Occupational Safety & Health Administration. Mauro said a state inspector spent portions of two days on the site and reviewed air tests that did not show signs of elevated asbestos exposures. "We responded to the charges and got our guys to go out there and take a look. Based on what they've seen, there were no violations," he said. The DNR's Wuehr told the Register that Hansen employees did begin some construction work before an asbestos abatement contractor was on site a few months ago. Hansen employees did get into some material that had asbestos, Wuehr said. He said, however, that the amount of material that was improperly handled was "very low" and that no fines or penalties were assessed. "I went there and at that time we got things kind of straightened out as far as slowing everything down and making sure the workers don't get ahead of the asbestos abatement contractors," Wuehr said. ASBESTOS UPDATE: Fibro-Related Death Leads to Lawsuit v. Dupont --------------------------------------------------------------- Thomas Kallies, writing for Southeast Texas' Legal Journal, reported that a Jefferson County family is suing a company which they claim exposed their now deceased patriarch to asbestos. Virginia Furlong, wife, and Helen Furlong Moity, daughter of William Ray Furlong, deceased, have filed a suit in the Jefferson County District Court on Feb. 14, naming E.I. Dupont De Nemours and Co. as the defendant. The Furlongs accuse Dupont of knowingly exposing William Furlong to toxic and carcinogenic dusts including asbestos while he worked at Dupont's Works Facility in Beaumont. According to the suit, William Furlong developed mesothelioma from which he died in 2012. His widow and daughter seek to hold Dupont liable for William Furlong's death. The Furlongs are seeking more than $100,000 in damages. They are being represented by attorney Darren L. Brown of the Provost and Umphrey Law Firm. Jefferson County District Court Case No. E0195-342 ASBESTOS UPDATE: East Cannington Resident Fears Fibro Exposure -------------------------------------------------------------- InMyCommunity.com reported that a resident in East Cannington, West Australia resident has concerns for the health of his family and neighbours after several structures containing asbestos were demolished. Desmond Bowers said he had been writing to the City of Canning for several years raising concerns about the removal of the substance, commonly found in houses and fences in Perth's established suburbs. Mr Bowers said he was frustrated by the lack of transparency between the local government and residents when it came to notice of removal of asbestos. "A couple of apartments got knocked down in Gerard Street, East Cannington, in a school zone, which could have sent fumes over to the school and over to a daycare centre and my house," Mr Bowers said. "In two years, it must have been seven or 10 sites that I've told them about and not once have they been to my house to investigate." Mr Bowers said he saw dust released as he watched an asbestos fence removed two weeks ago. "They used this machine to take the contaminated soil away and they had a little garden hose to try to water it down but lots of the dust was going over the neighbourhood, heading towards St Joseph's and St Norbert's School," he said. Canning Commissioner Linton Reynolds said the City of Canning did not routinely notify residents of the removal of asbestos. "The City focuses on ensuring residents are safe by enforcing the correct removal of asbestos," he said. "The City carries out unannounced inspections of asbestos removal. "There are minor works, such as fence removals or internal modifications to a house, where there is no requirement for approval from local government." President of the Asbestos Diseases Association of Australia in Osborne Park, Robert Vojakovic, said the public could not be complacent of the risk asbestos poses as urban renewal projects continue across the city. "Demolition of homes that contain asbestos products can lead to the release of asbestos fibres that pose a threat to everyone in the immediate area of the demolition, such as neighbours, pedestrians and workers without the correct protective equipment," Mr Vojakovic said. Mr Vojakovic said it was no longer just workers who needed to be wary. "Recent studies have found the group of people in which there has been a noticeable rise in the diagnosis of malignant mesothelioma are women who have done renovations on their own homes," he said. Mr Bowers said he would continue his petition for more transparency from local government on the removal of asbestos. ASBESTOS UPDATE: Fibro Found in Greyfriars Bus Station ------------------------------------------------------ Northampton A 'significant' amount of asbestos has been identified in the Greyfriars Bus Station ahead of the scheduled demolition of the building. A report submitted with a planning application to demolish the building states asbestos has been found in insulation panelling, cement panelling, fire doors and ceilings. The first phase of the demolition works, due to begin on March 31, will be to remove the asbestos "safely". The report, written by Mike Kitchen, principal regeneration officer, stated the work would generate "temporary noise, vibration and air quality (dust) pollution and nuisance. Mr Kitchen stated: "Noise will emanate from the deconstruction of the building using the long-reach munchers." "Further noise will be created by the crushing and sorting of the recovered material on site," the report added. It is estimated there will be 450 lorry movements from the site during the demolition process that will be timed to avoid peak periods of congestion. The work will be carried out from 8am until 6pm Monday to Friday and 8am until 1pm on Saturday. There will be an occasion, possibly Easter Sunday, when a full road closure will be required to remove the bridges that go over Lady's Lane and Greyfriars. The report states that the only permanent impact arising from the demolition would be the loss of Greyfriars and associated subways. It stated: "Greyfriars is not subject to any specific local or national designation and nor is it regarded as contributing positively to the local environmental character or setting. "Whilst the probability of the identified impacts occurring is high, they are temporary in nature and the duration and frequency will be timed so as to ensure the least disruption to neighbouring uses. "Detailed discussion have been held with Northamptonshire Highways who are taking a holistic approach to the town centre network." Site hoardings will be erected to ensure that members of the public do not come into contact with the operations being carried out on the site. There are two electrical generators on the site that will need to be removed. A large cable that forms part of the "power ring" servicing the town centre will also need to be switched off. Feral pigeons were the only form of wildlife found to be nesting in the Greyfriars bus station, according to a specialist survey. Bird experts carried out a survey of the building to check for any signs of protected species, such as bats or barn owls nesting, but no wildlife was found apart from pigeons. It is estimated that 19,617 tonnes of material, 96 per cent of the building, will be reused or recycled. A substantial quantity of this material, including concrete, brick and steel, will be used to fill in the passenger subways, the passenger access to the bus bay and the Grosvenor Centre entrance. The report also states a 46,000-litre diesel tank, five 205-litre metal containers and an 800-litre anti-freeze tank will need to be "isolated and protected" during the demolition phase to prevent land contamination. It is expected that it will take 36 weeks to demolish the bus station. ASBESTOS UPDATE: Revolutionary Treatment Gives Victims New Life --------------------------------------------------------------- Marco Chown Oved, writing for The Star, reported that like many people who were exposed to asbestos, it took more than 20 years before former Ontario Hydro mechanic Man Hong Chan knew anything was wrong. When he started feeling short of breath during his weekly soccer matches, Chan went to the doctor and his worst fears were confirmed: he had mesothelioma, one of the most aggressive forms of lung cancer. "It was scathing news. I was really scared," he said. "Most people don't even last two years." But thanks to a new therapy pioneered by a pair of Toronto doctors, 74-year-old Chan has been cancer free for more than four years. The technique used by Dr. John Cho and Dr. Marc de Perrot at the Princess Margaret Cancer Centre has doubled survival times in patients with mesothelioma, according to research they published last month. Their success has drawn attention from around the world and they say doctors at the Mayo Clinic in Minnesota will soon attempt to use their method. Cho, a radiation oncologist, and de Perrot, a thoracic surgeon, paired up to turn conventional treatment on its head, giving patients radiation before surgery instead of after it. They've dubbed the technique SMART, for Surgery for Mesothelioma After Radiation Therapy, and Cho says three-year survival rates have more than doubled, from 32 per cent to 72 per cent. And because the study only started five years ago, survival rates could be pushed further in the years to come. Mesothelioma is caused when the microscopic fibres from asbestos are inhaled and act like needles, slowly working their way into the lining of the lungs over decades. What make the cancer so hard to treat, Cho says, is that some of those fibres and affected cells would escape during surgery and the cancer would spread anew. Traditional treatment removes the affected lung and then treats the patient with radiation in hopes any lingering cancer will be killed. Cho and de Perrot's program gives the patient a toxic dose of radiation before surgery, ensuring that any cancer cells left over afterward aren't viable. Even though asbestos was banned in the early 1980s, 500 new cases of mesothelioma are diagnosed in Canada each year and the number is growing. Because of the 30-year gestation period, this rate isn't expected to taper off for decades. "The exposure has been reduced; it hasn't been eradicated," said de Perrot. "The asbestos is still around and it's very likely that (incidence of) the disease will still increase." Even as the carcinogenic substance is being removed from buildings across the country, asbestos brake pads and cement pipes are still being imported into Canada. Canada was long one of the world's biggest producers of asbestos and continued to export it even after it was banned domestically. Quebec closed its last asbestos mines in 2011. While mesothelioma has been seen by many to be a death sentence -- average survival is only eight to 12 months -- early intervention is granting patients a new lease on life. The key to Cho and de Perrot's treatment is moving quickly. While a patient typically waited six months for an intervention, Chan had already undergone radiation therapy and surgery within a month of his initial diagnosis. "Our message to doctors and patients is to seek a referral early on. Don't wait for additional screening. We can do the work quickly. Early work can make a difference," said de Perrot. In Chan's case, since his surgery, he's welcomed a new grandson into the world. And while he can't play soccer like he used to, he's still thankful. "I'm lucky to have gotten rid of the cancer. You can't ask for everything." ASBESTOS UPDATE: Pennsylvania Man Files Fibro Exposure Complaint ---------------------------------------------------------------- Ben Hart, writing for The Pennsylvania Record, reported that a Pennsylvania man is suing his former employers, claiming asbestos exposure. Milton M. Schuster Sr. filed a lawsuit Feb. 12 in the Philadephia County Court of Common Pleas against CBS Corporation, Crane Company, Foster-Wheeler Corporation, General Electric Company, General Electric Co. Switchgear Department, General Electric Capital Corporation, General Electric Capital Corporation, Goulds Pumps Inc., Honeywell International, also known as Allied Signal, Ingersoll-Rand Company, John Crane, Houdaille Inc., John Crane Inc., Owens-Illinois Inc., Union Carbide Corporation and Warren Pumps Inc., citing asbestos exposure. Schuster alleges he was exposed to asbestos while working as a machinist with or around products manufactured and distributed by the defendants from 1954 through 1985. The suit alleges Schuster was diagnosed on Dec. 12, 2013, as having asbestos-related lung cancer, as a direct result of his exposure to asbestos. He is being represented in the case by attorneys Michael B. Leh and Melanie J. Garner. Philadelphia County Court Case No. 140201290. ASBESTOS UPDATE: EPA Confirms Interstate Waste Load Had Fibro ------------------------------------------------------------- Charlotte King and Stephanie Corsetti, writing for ABC News, reported that the New South Wales, Australia environmental watchdog has confirmed there was asbestos in a truck load of waste that spilled onto the Sturt Highway this month. The truck was travelling from Melbourne to Buronga, north of Mildura in south west New South Wales, to dump waste at the landfill when it rolled. The NSW Environment Protection Authority's test results have now confirmed the load was contaminated with asbestos. The Region's Manager Craig Bretherton has issued a statement revealing asbestos was detected in one of the test samples from the waste load. The New South Wales EPA says it's working with the Wentworth Shire and the landfill operators to arrange for the safe disposal of waste and the load has been stockpiled at the Buronga Landfill pending the results. Residents from the Wentworth Shire have raised questions about the council's reasons for accepting waste from remote locations at the Buronga landfill site. The Victorian EPA says it's investigating the freight of waste interstate and how that affects Victoria's landfill levy system. The Authority says it's committed to ensuring there is a level playing field between those doing the right thing in waste management and those who are intent on under-cutting the system. Both state authorities say they're working together to determine where the asbestos came from. Putting the brakes on interstate waste The Wentworth Shire has published a response to the community's waste concerns in the local newspaper. The response confirms that waste from outside Sunraysia has been trasported into Buronga Landfill since November 2013. The council says it's now requested a full report about the transportation of waste from Melbourne and other locations from its current contractor, and says it will not allow asbestos to be brought in from outside Sunraysia. It also states that, in the wake of the asbestos discovery in the truck load of waste from Melbourne, the council has stopped receiving any waste from outside Sunraysia until further notice. The council says it'll consider delaying a decision about waste contracts for the Buronga landfill that was to be made at a special meeting. The statement's author's reiterate that the intention of developing the landfill site was to 'provide and income stream' for the shire that 'would make its overall operation more sustainable'. "Council's strategy of expanding its operations is to counteract the real possibility of waste from this Shire having to be transferred elsewhere at a considerable cost to ratepayers," the notice states. ASBESTOS UPDATE: Madisonville Bldg. Site of Fibro Probe ------------------------------------------------------- Jess Raatz, writing for 14News.com, reported that the demolition of an old manufacturing in Madisonville, Kentucky, is now on hold, as the EPA looks into the working conditions of those doing the job. The "Do not enter" sign posted outside the old Goodyear plant in Madisonville will stay put until the EPA is done investigating what officials say could be a large amount of Asbestos in the facility. Officials with the city of Madisonville, the EPA, and licensed testing contractors were on site. Officials took samples of what they say could be a thick layer of Asbestos inside and outside the plant. Madisonville city officials say for about 4 weeks, S&S Salvage had been working at the boiler plant without proper permits. City officials say the EPA had instructed S&S Salvage to gather all employees who have worked on the side, as they could have been exposed. City officials are calling the plant a "Hot-site" and one of the worst they've ever seen. "They told us there is no danger for any of the surrounding people as far as air quality like anyone around it unless there in the immediate vicinity of the site. That's why we got the site locked down," said Madisonville city official Frank Wallace. 14news did reach out to S&S Salvage for a comment on the EPA's investigation but they have yet to return our call. ASBESTOS UPDATE: Jurors Hear Late Victim's Testimony in Trial ------------------------------------------------------------- Heather Isringhausen Gvillo, writing for Legal Newsline, reported that jurors in Madison County, Ill., were able to hear the testimony of a now-deceased mesothelioma victim who served in the U.S. Navy during an asbestos trial. Tom King, Sr., filed his lawsuit last year in Madison County, months before he died from mesothelioma on May 23, 2013, at age 71. Before his death, attorneys recorded King's video deposition on Feb. 27-28, 2013. Brothers Tom King, Jr., and Brian King are now representing their father in the lawsuit. Crane Co., a company that allegedly supplied the Navy with mechanical gaskets and valves, and John Crane, a designer and manufacturer of mechanical seals, are the remaining defendants at trial from the original list of 119 defendant companies. King was a machinist mate for the U.S. Navy from 1959-1962 and again from 1965-1969, serving on the USS Forrestal, USS Tallahatchie County and the USS Hollister. He started as an E3 fireman on the Forrestal and worked his way up to a machinist mate first class by the time he left the Navy permanently in 1969. He worked primarily in the engine room on each ship, but occasionally helped in other areas of the ship when needed. "If you're at sea, practically everything is running and it doesn't work right," King said. "If it breaks, we fix it." More heavy duty repairs would take place at port or during overhaul when the ship goes into dry dock for maintenance. King testified that crew members were required to refer to a manual every time they worked on a piece of equipment regardless of their expertise in the department. He added that he never saw any warning signs or anything indicating that he needed to wear respiratory protection in the manual. While the manuals had the manufacturer's name on the front, he could not verify if the manuals were generated by the Navy or the manufacturers. "The manufacturer's name was there on the manual, that's all I know," he said. When replacing old, worn-out parts King said the manual instructed him to use specific asbestos parts, which were already provided to him by the Navy. He said he never deviated from what the manuals instructed, calling the required specifications the "Navy way." "We had a chain of command," he said. "Remember the Navy way? That's what we were required to do." Recalling his work aboard the three ships he was stationed on, King shared his experience working with pumps, valves and insulation. The packing inside the valves was used as a sealant to prevent leaks. Because it only needed to be replaced if it was leaking, the material would be damp and it wasn't always a dusty process, King said. However, King added that the process was a difficult task. "Sometimes it was a real bear to get the packing out," he said. That wasn't the case with when replacing gaskets in pumps. Pumps were generally used with hot fluids, he explained, so he had to allow them to cool off before working on them. By then, the components would be dry. "These systems are hot and when we worked with hot valves, they were isolated. We cleared out all the water because we couldn't work with that," he said. In order to replace the gaskets, King had to clean the excess asbestos off the valves with a wire brush, calling it gun metal cleaning, in order to prevent future leaking. The cleaning process created a lot of dust, he said. "Anytime you're using a wire brush, it's going to have an effect on whatever it is you are moving," King said. King said he knew the valves came from Crane Co. because the company's name was on the casing, but agreed a majority of the valves did not come from Crane Co. Switching gears to his insulation work, he said he occasionally repaired insulation on equipment like turbines and boilers and was often near insulation work while repairing gaskets. He would cut out the damaged area, put in new insulation and other coverings and paint the repair work. King agreed that it was fair to say there were miles and miles of pipe insulation aboard the ships and alleges that it was a Johns Manville product. During his testimony, King cautioned the attorneys interviewing him that his memory was tainted slightly due to his cancer treatments and reminded them that their questions involved events from decades ago. "I am presently taking a heavy dose of chemotherapy," King said. "Sometimes it's hard pressed for me to remember what I had for supper last night." ********* 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. Ma. Cristina Canson, Noemi Irene A. Adala, Joy A. Agravante, Valerie Udtuhan, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2014. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. 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