text:
Friday, September 10, 2010, Vol. 12, No. 179
AMERICAN APPAREL: Rosen Law Firm Files Class Action in Calif.
AON CONSULTING: Sued for Posting Personal Info of State Retirees
BIOSPHERE MEDICAL: Agrees to Settle "Fessahaye" Suit in Delaware
BURGER KING: Being Sold to 3G Capital for Too Little, Suit Says
CAPITAL GROWTH: Court Approves Settlement With Kirschner
CITIBANK: Reaches Settlement of "Hoffman" Suit in Calif.
CN RAIL: Ontario Court Certifies Class Action Over Overtime Pay
DAKTRONICS INC: South Dakota Court Okays Motion to Dismiss Suit
DIAMOND MANAGEMENT: D&Os Face 3rd Suit Over Sale to PwC
DICK'S SPORTING: Accused of Not Paying Overtime
DYCOM INDUSTRIES: Faces FLSA Violations Suit in New York
DYCOM INDUSTRIES: Washington Court Okays Settlement Agreement
FORTUNE HI-TEC: Accused in Ky. of Running Illegal Pyramid Scheme
HOME DEPOT: Court Dismisses Third Amended ERISA-Violations Suit
HOUSEHOLD FINANCIAL: Obtains Final Approval of $100,000 Settlement
JM EAGLE: Birka-White Firm Files Class Action Over Inferior Pipe
LG ELECTRONICS: Accused of Falsifying Energy-Efficiency Tests
MIFAL HAPAYIS: Class Suit Alleges Lottery Players Were Mislead
OMNI ENERGY: Faces Six Suits Over Planned Wellspring Merger
PARADIGM ELECTRONICS: Recalls 2,200 70 CT Subwoofers
PARTNER COMMUNICATIONS: Faces Possible Class Action Over Charges
STEP2 COMPANY: Recalls 63,700 Transportation Station Toys
TAKE-TWO: NY Court Dismisses Grand Theft Auto Consumer Suit
TAKE-TWO: Awaits Final Court Approval of Settlement Agreement
TELENAV INC: Charged with Violations of the Securities Act of 1933
TELENAV INC: Kendall Law Group to Join Shareholders Class Action
TRIPADVISOR: Faces Possible Class Action Over Hotel Reviews
TORO COMPANY: Court Gives Final Nod to Settlement Agreement
TORO COMPANY: Defends Suit in Canada Over Lawnmower HP Labels
ULTA SALON: Awaits Court Approval of Settlement Agreement
ULTA SALON: Defends Wage Violations Suit in California
UTI WORLDWIDE: Freight Forwarding Services Lawsuit Still Pending
WAL-MART STORES: Appeal to "Braun/Hummel" Judgment Still Pending
WAL-MART STORES: Class Certification Not Yet Addressed in Suits
ASBESTOS ALERT: Claim v. AmeriCredit, Others Filed Aug. 24
ASBESTOS ALERT: Interserve Fined GBP33T for Safety Breach at MoD
ASBESTOS UPDATE: American Fin'l. Has $360MM Reserves at June 30
ASBESTOS UPDATE: Everest Re Cites $614.1MM June 30 Gross Reserves
ASBESTOS UPDATE: Sealed Air Still Party to Cryovac Deal Lawsuits
ASBESTOS UPDATE: Sealed Air Unit Still Facing Thundersky Lawsuit
ASBESTOS UPDATE: Garlock Sealing Has $157.1MM June 30 Receivable
ASBESTOS UPDATE: EnPro Industries Party to 90T Claims at June 5
ASBESTOS UPDATE: 3 Garlock Trials Commenced in First Half 2010
ASBESTOS UPDATE: Five Garlock Sealing Appeals Pending at June 4
ASBESTOS UPDATE: EnPro Has $190.1MM Insurance Coverage at June 30
ASBESTOS UPDATE: Entrx Cites $41MM Long-Term Reserve at June 30
ASBESTOS UPDATE: Entrx Corp. Facing 215 Pending Cases at June 30
ASBESTOS UPDATE: Entrx Cites $48MM Insurance Coverage at June 30
ASBESTOS UPDATE: Metalclad Still Party to ACE Lawsuit in Calif.
ASBESTOS UPDATE: IntriCon Corp. Party to 122 Lawsuits at June 30
ASBESTOS UPDATE: VWR Funding Still Involved in Exposure Actions
ASBESTOS UPDATE: 11 Cases in Alabama Still Pending v. Katy Ind.
ASBESTOS UPDATE: Katy Ind. Subject to 2,800 Sterling Fluid Cases
ASBESTOS UPDATE: LaBour Pump Facing 85 Active Lawsuits at July 2
ASBESTOS UPDATE: Hardie Cites $63.1MM Adjustment at 1st Qtr FY2011
ASBESTOS UPDATE: ABI's Long-Term Liabilities Remain at $17.7MM
ASBESTOS UPDATE: American Biltrite Facing 1,213 Cases at June 30
ASBESTOS UPDATE: ABI Cites $44.7MM Congoleum Liability at June 30
ASBESTOS UPDATE: Exposure Actions Ongoing v. Kaanapali Land, D/C
ASBESTOS UPDATE: Hexion Specialty Still Party to Liability Cases
ASBESTOS UPDATE: Imperial Industries Unit Faces 17 Injury Claims
ASBESTOS UPDATE: Sears Holdings Still Subject to Exposure Claims
ASBESTOS UPDATE: Briggs & Stratton Subject to Liability Actions
ASBESTOS UPDATE: Met-Pro Involved in 74 Open Actions at Aug. 26
ASBESTOS UPDATE: Deere & Company Still Party to Liability Cases
ASBESTOS UPDATE: Target Corp. Still Subject to EPA NESHAP Probe
ASBESTOS UPDATE: Harris Corp. Still Subject to Asbestos Disputes
ASBESTOS UPDATE: Liability Cases Ongoing Against Magnetek Inc.
ASBESTOS UPDATE: Joy Global Still Party to Liability Cases
ASBESTOS UPDATE: J.C. Penney Cites $56MM Liability at July 31
ASBESTOS UPDATE: Navistar Int'l. Still Subject to Exposure Cases
ASBESTOS UPDATE: N.Y. Court Rejects Quigley Reorganization Plan
ASBESTOS UPDATE: 4 Families Sue 78 Firms in Texas Court
ASBESTOS UPDATE: Abatement at Blacksburg School Could Cost $400T
ASBESTOS UPDATE: Silkstone Widow Calls for Help in Payout Claim
ASBESTOS UPDATE: Marco Island Resident Wins Lawsuit Against EPA
ASBESTOS UPDATE: Court Grants MW Custom's Summary Judgment Move
ASBESTOS UPDATE: Objections Overruled in Chilicothe Prison Case
ASBESTOS UPDATE: Crane Co. Summary Judgment in Curry Case Denied
The Rosen Law Firm, P.A., disclosed Tuesday that it has filed a
class action lawsuit on behalf of purchasers of America Apparel,
Inc., stock during the period from December 20, 2006 to August 17,
To join the American Apparel class action, go to the Web site at
http://www.rosenlegal.com/or call Laurence Rosen, Esq. or Phillip
Kim, Esq. toll-free at 866-767-3653, or you may also email
lrosen@rosenlegal.com or pkim@rosenlegal.com for information on
the class action.
The case is pending in the United States District Court for the
Central District of California. You can obtain a copy of the
complaint from the clerk of court or you may contact counsel for
plaintiffs Laurence Rosen, Esq. or Phillip Kim, Esq. toll-free at
866-767-3653 or email lrosen@rosenlegal.com or pkim@rosenlegal.com
NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS
IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN
ONE. YOU MAY CHOOSE TO DO NOTHING AT THIS POINT AND REMAIN AN
ABSENT CLASS MEMBER.
The Complaint asserts that during the Class Period, defendants
misrepresented American Apparel's hiring practices and the impact
of such practices on the Company's business and financial
performance. The Company's hiring practices were improper and
beginning in July 2009, American Apparel revealed that it was
being investigated by the U.S. Immigration and Customs Enforcement
agency regarding the Company's compliance with U.S. immigration
law. On August 17, 2010, the Company announced it expected to
report a loss of $5 million to $7 million in the second quarter of
2010 on net sales of $132 million to $143 million. According to
the announcement, a significant factor in such losses was "lower
labor efficiency at the Company's production facilities in the
second quarter of 2010 compared to the prior year period. The
lower labor efficiency was primarily a result of the hiring of
over 1,600 net new manufacturing workers during the second quarter
of 2010." As a result, the Complaint alleges that the price of
American Apparel stock declined, damaging investors.
A class action lawsuit has already been filed on behalf of
American Apparel shareholders. If you wish to serve as lead
plaintiff, you must move the Court no later than October 25, 2010.
If you wish to join the litigation or to discuss your rights or
interests regarding this class action, please contact plaintiff's
THE ROSEN LAW FIRM
350 5th Avenue, Suite 5508
Courthouse News Service reports that Aon Consulting disclosed
online the names and Social Security numbers of 22,000 state
retirees, a class action claims in New Castle County Court. The
class claims Aon did not bother to scrub personal information
before posting online a request for proposals from insurers.
"Gail Slaughter's identity is likely for sale on the Internet
right now," Ms. Slaughter, the lead plaintiff, says in her
complaint. "For a minimal fee, hackers throughout the world can
use her Social Security number and birth date to secure credit
cards, cell phones, and alike (sic). Ms. Slaughter finds herself
in this position not because of anything that she did, but because
the state's benefit consultant could not be counted on to scrub
the personal information of nearly 22,000 state retirees before
posting the date online.
"The harm is irreparable."
Ms. Slaughter claims that Aon "compiled a package of information"
to seek insurers' bids to provide vision coverage for state
workers and retirees. At Aon's direction, the State of Delaware
posted the request for proposals online for 4 days in August,
though it contained the 22,000 people's Social Security numbers,
birth dates and genders, she says.
She says Aon acknowledges that it screwed up, and offered to
provide 1 year of credit monitoring and $25,000 in identity theft
coverage for "affected retirees." After that, she "and other
similarly situated retirees will be left to fend for themselves."
Ms. Slaughter says that's not enough. She wants costs and damages
for breach of contract, negligence, and other charges.
A copy of the Complaint in Slaughter v. Aon Consulting, Inc., et
al., Case No. N10-C-09-001 FSS (Del. Super. Ct., New Castle Cty.),
is available at:
http://www.courthousenews.com/2010/09/07/Aon.pdf
Mark M. Billion, Esq.
BILLION LAW
2 Mill Rd., Suite 202
E-mail: markbillion@billionlaw.com
Bruce L. Hudson Esq.
LAW OFFICES OF BRUCE HUDSON
E-mail: delaw@brucehudsonlaw.com
Xiaojuan Huang, Esq.
E-mail: huang@brucehudsonlaw.com
BioSphere Medical, Inc., has agreed to settle the matter Fessahaye
v. Faleschini, et al., arising out of its planned merger with
Merit Medical Systems, Inc., according to the company's Sept. 2,
2010, Form 8-K filing with the U.S. Securities and Exchange
Commission.
On June 10, 2010, certain of the directors of BioSphere were named
as defendants in a putative class action complaint, captioned
Fessahaye v. Faleschini, et al., C.A. No. 5553-CC, filed in the
Court of Chancery of the State of Delaware.
The action, purportedly brought on behalf of a class of the
company's stockholders, alleges that certain of the company's
directors purportedly breached their fiduciary duties in
connection with the company's proposed merger with Medical
Systems, Inc., by failing to maximize shareholder value and obtain
the best financial and other terms. The complaint includes a
request for declaratory, injunctive and other equitable relief,
including to enjoin the Company from consummating the merger with
Merit, in addition to fees and costs.
On July 19, 2010, plaintiff filed an amended complaint adding the
company as a defendant and further alleging that the company's
preliminary proxy statement fails to provide material information
and provides materially misleading information relating to the
proposed merger transaction.
Although the defendants continue to deny liability with respect to
the claims alleged in the action, on Aug. 30, 2010, plaintiff (on
behalf of himself and the members of the putative class) and all
defendants entered into a definitive agreement to settle the
litigation. The definitive settlement agreement is subject to
approval by the Court and, if approved, will result in dismissal
of all of the claims in the lawsuit.
The final settlement hearing is currently scheduled for Nov. 4,
BioSphere Medical, Inc. seeks to pioneer and commercialize
minimally invasive diagnostic and therapeutic applications based
on proprietary bioengineered microsphere technology. The
company's core technologies, patented bioengineered polymers and
manufacturing methods, are used to produce microscopic spherical
materials with unique beneficial properties for a variety of
medical applications. BioSphere Medical's principal focus is the
use of its products for the treatment of symptomatic uterine
fibroids using a procedure called uterine fibroid embolization, or
UFE. The company's products continue to gain acceptance in this
rapidly emerging procedure, as well as in a number of other new
and established medical treatments.
Courthouse News Service reports that Burger King is selling
itself too cheaply through an unfair process to 3G Capital, for
$4 billion or $24 a share, shareholders claim in four class
actions in Miami-Dade County Court.
A copy of the Complaint in Nemeth v. Burger King Holdings, Inc.,
et al., Case No. 10-48424CA05 (Fla. Cir. Ct., Dade Cty.), is
http://www.courthousenews.com/2010/09/07/BKCA.pdf
Emily C. Komlossy, Esq.
FARUQI & FARUQI, LLP
3595 Sheridan St., Suite 206
E-mail: ekomlossy@faruqilaw.com
Mark C. Gardy, Esq.
James S. Notis, Esq.
560 Sylvan Ave.
E-mail: mgardy@gardylaw.com
Chief District Judge Joseph F. Bataillon of the United States
District Court for the District of Nebraska granted preliminary
approval of a proposed partial settlement agreement with defendant
Peter Kirschner in Brehm v. Capital Growth Financial, LLC, No.
8:07CV254.
Plaintiffs had filed a class action for securities fraud. Judge
Bataillon notes lead plaintiffs have shown that the proposed
partial settlement is in the best interests of the plaintiff
Class, based on the claims and defenses in the action, its
procedural posture, the anticipated time and expense of protracted
litigation with Mr. Kirschner, and Mr. Kirschner's poor financial
condition and lack of insurance coverage.
The Court will hold a fairness hearing on October 14, 2010, at
8:30 a.m., in Courtroom No. 3, Roman L. Hruska U.S. Courthouse,
111 South 18th Plaza, Omaha, Nebraska.
A copy of the memorandum and order is available at:
http://www.leagle.com/unsecure/page.htm?shortname=infdco20100903a32
LawyersandSettlements.com reports a class action settlement has
been reached in a class action lawsuit pending against Citibank
(South Dakota), N.A., in the United States District Court for the
Central District of California (styled Hoffman v. Citibank (South
Dakota), N.A., Civil Action Case No. SACV 06-571 AJG (MLGx))
alleging, among other things, that Citibank improperly imposed
increased interest rates on Citibank credit cards customers due
to delinquency or default without giving prior notice, according
to the Citibank class action settlement notice.
The proposed Citibank settlement reportedly provides that Citibank
will establish a settlement fund of $10 million. Citibank
settlement class members who timely submit a valid claim form will
reportedly receive a check for the lesser of $18 or an equal share
of the settlement fund after payment of settlement costs,
including certain notice and administration costs and attorneys'
fees and costs.
The Citibank credit card interest rate class action lawsuit
settlement class reportedly includes the following persons, unless
otherwise excluded:
All persons who, between May 5, 2002 and May 24, 2010, had a
credit card account with Citibank (South Dakota), N.A., or its
predecessor Citibank USA, National Association, and who paid
periodic finance charges that were assessed from the beginning of
a billing period in which the periodic rate was increased as a
result of a default or delinquency that occurred before August 20,
The deadline to opt out of (i.e., exclude yourself from) the
Citibank credit card class action settlement or to object to the
settlement is reportedly November 8, 2010.
The Court is scheduled to hold a class action settlement hearing
to consider an award of attorneys' fees and costs to class counsel
and payment to Plaintiff for her services as class representative.
For more information on the Citibank credit card interest rate
class action lawsuit settlement and/or for updates on the Citibank
credit card class action settlement, visit the Citibank class
action settlement Web site: http://www.casenosacv06571.com/
The Canadian HR Reporter reports an Ontario court has certified an
overtime class-action lawsuit against CN Rail.
This is the second overtime class-action suit to be certified in
Ontario, following the certification of the case against the Bank
of Nova Scotia in February.
Justice Perell of the Ontario Superior Court of Justice ordered
the class action, brought by Michael McCraken against CN for
unpaid overtime, be certified.
Mr. McCracken is the lead plaintiff representing about 1,500
current and former first-line supervisors. He alleges CN
misclassified first-line supervisors as managers, denying them the
overtime pay to which they are entitled.
The $300-million claim alleges CN supervisors work an average of
50 and sometimes as many as 90 hours a week.
"On behalf of all my colleagues at CN, I am very happy that the
court ruled that the case is permitted to go forward and that we
will have a determination of the merits of our case," said Mr.
McCracken.
Law firms Roy Elliott O'Connor and Sack Goldblatt Mitchell are
representing Mr. McCraken. Both firms are also counsel in the
overtime case against CIBC, which was denied certification last
year and is currently being appealed.
The U.S. District Court for the District of South Dakota granted
Daktronics, Inc.'s motion to dismiss an amended consolidated
complaint, according to the company's Sept. 3, 2010, Form 10-Q
quarter ended July 31, 2010.
The company and two of its executive officers were named as
defendants in a consolidated class action filed in November 2008
on behalf of a class of investors who purchased the company's
stock in the open market between Nov. 15, 2006 and April 5, 2007.
In an Amended Consolidated Complaint filed on April 13, 2009, the
plaintiffs alleged that the defendants made false and misleading
statements of material facts about the company's business and
expected financial performance in the company's press releases,
its filings with the Securities and Exchange Commission, and
conference calls, thereby inflating the price of the company's
common stock.
The Complaint alleged claims under Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934, as amended.
On June 9, 2010, the U.S. District Court entered an order granting
Daktronics' motion to dismiss the class-action securities claim
for failure to state a claim upon which relief can be granted
under the Private Securities Litigation Reform Act.
Daktronics, Inc. -- http://www.daktronics.com/-- has strong
leadership positions in, and is the world's largest supplier of,
large screen video displays, electronic scoreboards, LED text and
graphics displays, and related control systems. The company
excels in the control of display systems, including those that
require integration of multiple complex displays showing real-time
information, graphics, animation and video. Daktronics designs,
manufactures, markets and services display systems for customers
around the world, in Sport, Business, Schools and Theaters and
Transportation segments.
Mike Williamson, individually and on behalf of others similarly
situated v. Adam Gutstein, et al., Case No. 2010-CH-38143 (Ill.
Cir. Ct., Cook Cty. September 1, 2010), accuses the board of
directors of Diamond Management & Technology Consultants, Inc., of
breaching their fiduciary duties to the Company's public
shareholders, arising out of their attempt sell the Company to
PricewaterhouseCoopers LLP and Carbon Merger Subsidiary, Inc. by
means of an unfair process and for an unfair price of $12.50 in
cash for each share of the Diamond Management common stock (given
the Company's recent performance and future growth prospects).
The Proposed Transaction values the Company at $378 million, and
is expected to close in the fourth quarter of 2010.
Mr. Gutstein is Diamond's President and Chief Executive Officer.
Diamond is a Delaware management consulting services company.
The Proposed Transaction, the Complaint says, confers personal
financial benefits to the individual defendants not equally shared
by Company's public shareholders. Members of Diamond Management's
management team are expected to play a prominent role in the
combined company.
The Complaint adds that, as part of the Merger Agreement,
defendants have agreed to onerous and preclusive deal protection
devices, including a "no solicitation" provision, a provision
allowing PwC to match any unsolicited offer, and a termination fee
of $9.0 million, which virtually assure that no competing offers
will emerge for the Company. In connection with the Proposed
Transaction, defendants Bergsten, Gutstein, Mikolajczyk and Rubio,
who together hold roughly 13% of Diamond Management's issued and
outstanding common stock, have agreed to vote their shares of
Diamond Management common stock in favor of the merger and against
any alternative transaction proposal, subject to certain limited
exceptions.
The proposed transaction has been unanimously approved by the
boards of Diamond Management and PwC.
Mark D. Belongia, Esq.
Harry O. Channon, Esq.
BELONGIA, SHARPIRO & FRANKLIN, LLP
20 S. Clark Street, Suite 300
Eduard Korsinsky, Esq.
Eric Andersen, Esq.
Courthouse News Service reports that Dick's Sporting Goods stiffs
workers for overtime and makes them work off the clock, a class
action claims in Douglas County Court, Omaha.
A copy of the Complaint in Stackhouse v. Dick's Sporting Goods,
Inc., et al., Case No. 1110-977 (Neb. Dist. Ct., Douglas Cty.)
(Coffey, J.), is available at:
http://www.courthousenews.com/2010/09/07/Employ.pdf
Jon Rehm Esq.
REHM, BENNETT & MOORE, P.C., L.L.O.
3701 Union Dr., #200
E-mail: jonrehm@rehmlaw.com
Patrick J. Solomon, Esq.
Peter J. Glennon, Esq.
THOMAS & SOLOMON LLP
693 East Ave.
E-mail: psolomon@theemploymentattorneys.com
pglennon@theemploymentattorneys.com
Dycom Industries, Inc., faces a suit alleging violations of the
Fair Labor Standards Act, according to the company's Sept. 3,
2010, Form 10-K filing with the U.S. Securities and Exchange
Commission for the fiscal year ended July 31, 2010.
In June 2010, a former employee of Prince Telecom, LLC, a wholly
owned subsidiary of the company, commenced a lawsuit against
Prince, the company and certain unnamed U.S. affiliates of Prince
and the company in the U.S. District Court for the Southern
The lawsuit alleges that Prince, the company and the Affiliates
violated the Fair Labor Standards Act by failing to comply with
applicable overtime pay requirements. The plaintiff seeks
unspecified damages and other relief on behalf of himself and a
putative class of similarly situated current and former employees
of Prince, the company or the Affiliates.
Dycom Industries, Inc. -- http://www.dycomind.com/-- is a leading
provider of specialty contracting services throughout the United
States. These services include engineering, construction,
maintenance and installation services to telecommunications
providers, underground facility locating services to various
utilities including telecommunications providers, and other
construction and maintenance services to electric and gas
utilities and others.
The U.S. District Court for the Western District of Washington
gave its final approval to the settlement resolving a suit against
Dycom Industries, Inc., according to the company's
Sept. 3, 2010, Form 10-K filing with the U.S. Securities and
Exchange Commission for the fiscal year ended July 31, 2010.
In May 2009, the company and Prince Telecom, LLC, a wholly-owned
subsidiary of the company, were named as defendants in a lawsuit.
The plaintiffs, all former employees of the subsidiary, alleged
various wage and hour claims, including that employees were not
paid for all hours worked and were subject to improper wage
deductions. Plaintiffs sought to certify as a class current and
former employees of the subsidiary who worked in the State of
In November 2009, the plaintiffs' attorneys, the company and the
subsidiary entered into a memorandum of understanding pursuant to
which the parties agreed to the terms of a proposed settlement
with respect to the lawsuit. In January 2010, the Court granted
preliminary approval of the proposed settlement.
Notice of the terms of the proposed settlement and claim forms
were mailed to members of the plaintiffs' class in February 2010.
The Court held a hearing regarding the plaintiffs' Motion for
Final Approval of the Class Action Settlement in April 2010, at
which time it entered an Order approving the settlement and
dismissed the action with prejudice subject to final
administration of the terms of the settlement. Excluding the
company's legal expenses, approximately $1.6 million was incurred
pursuant to the settlement and was paid in June 2010.
Courthouse News Service reports that Fortune Hi-Tech Marketing is
running an illegal pyramid scheme, a class action claims in
Lexington, Ky., Federal Court. Leading the long list of
individual defendants are President Paul Orberson, Chief Business
Officer Jeff Orberson, CEO Thomas A. Mills and COO David Mills.
A copy of the Complaint in Day, et al. v. Fortune Hi-Tech
Marketing, Inc., et al., Case No. 10-cv-00305 (E.D. Ky.), is
http://www.courthousenews.com/2010/09/07/Pyramid.pdf
R. Kenyon Meyer, Esq.
DINSMORE & SHOHL LLP
1400 PNC Plaza
500 West Jefferson St.
E-mail: kenyon.meyer@dinslaw.com
The U.S. District Court for the Northern District of Georgia in
Atlanta granted with prejudice The Home Depot, Inc.'s motion to
dismiss the plaintiffs' third amended complaint, according to the
company's Sept. 2, 2010, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended Aug. 1, 2010.
In the second and third quarters of fiscal 2006, three purported,
but uncertified, class actions were filed against the company, The
Home Depot FutureBuilder Administrative Committee and certain of
the company's current and former directors and employees alleging
breach of fiduciary duty in violation of ERISA in connection with
the company's return-to-vendor and stock option practices.
These actions were joined into one case in 2007, and the joint
amended complaint seeks certification as a class action,
unspecified damages, costs, attorney's fees and equitable and
injunctive relief. The case is currently before the U.S. District
Court for the Northern District of Georgia in Atlanta, following
the decision by the U.S. Court of Appeals for the Eleventh Circuit
in July 2008 reversing the District Court's prior decision on
standing, affirming its finding that the plaintiffs failed to
exhaust the administrative remedies provided under ERISA, and
remanding the matter to the District Court for further
adjudication.
On Nov. 9, 2009, plaintiffs filed a third amended complaint
following their pursuit of administrative remedies.
On June 7, 2010, the U.S. District Court for the Northern District
of Georgia in Atlanta granted with prejudice Home Depot's motion
to dismiss plaintiffs' third amended complaint. On June 28, 2010,
plaintiffs filed a notice of appeal with the U.S. Court of Appeals
for the Eleventh Circuit.
The Home Depot, Inc. -- http://www.homedepot.com/-- is a home
improvement retailer. The Home Depot stores sell an assortment of
building materials, home improvement and lawn and garden products,
and provide a number of services. The Home Depot stores average
approximately 105,000 square feet of enclosed space, with
approximately 24,000 additional square feet of outside garden
area.
Amelia Flood, writing for The Madison County Record, reports a
2004 class action suit filed against Household Financial Services
over its mortgage interest rates is over.
Madison County Circuit Judge Daniel Stack gave the final approval
of the $100,000 settlement in the case on Sept. 3.
The suit, one of a number filed by the former partnership of Paul
Weiss, Esq., and the then-Lakin Law Firm, netted class attorney
Mark Brown $125,000 in legal fees.
Class members in the suit brought by lead plaintiffs Paul and
Ladonna Wratchford, get $10 a piece. The Wratchfords receive
$2,500 collectively.
At the Sept. 3 hearing, Mr. Brown indicated there were just fewer
than 11,000 class members.
The suit gained its initial settlement approval in March. The
suit encompasses the claims from Household Financial customers
stretching from 1993 to 2003. The suit claims the company
overcharged customers on interest payments.
The class action was certified by then-Madison County Circuit
Judge Phillip Kardis.
Mr. Brown represents the Wratchfords and the class.
Vanessa Jacobsen, Esq., and Debra Zahalsky, Esq., represent
Household Financial.
The case is Madison case number 03-L-541.
A class-action lawsuit was filed Tuesday by Birka-White Law
Offices on behalf of private water utilities and commercial
property owners potentially seeking hundreds of millions of
dollars from JM Eagle for knowingly supplying substandard
polyvinyl chloride pipe for the transmission of water for fire
hydrant systems, building fire suppression systems, potable water
systems, and other applications.
"This lawsuit seeks to protect class members who are not included
in the whistle-blower lawsuit and who now have substandard JM
Eagle pipe."
The lawsuit, filed in United States District Court, Central
District of California, asks the court to certify a nationwide
class action on behalf of all persons or entities, including
private water utilities, commercial property owners, and
potentially some public agencies, who installed the substandard JM
Eagle pipe. The filing seeks reimbursement of all sums paid by the
class members to JM Eagle, and for all other damages caused by the
sale and installation of the substandard pipe.
The class-action lawsuit alleges that from at least 1997 through
at least January 1, 2009, the majority of the PVC pipe
manufactured and sold by J-M Manufacturing Company, Inc. (JM
Eagle's corporate predecessor), was below the minimum strength
required by applicable industry standards.
The lawsuit also alleges that JM Eagle further deceived its
customers by cherry-picking pipe samples for testing by outside
certification agencies such as Underwriters Laboratories and NSF
International, while continuing in its day-to-day operations using
a cheaper manufacturing process that produced weaker pipes, but
enabled the company to increase its profits.
This class-action follows a whistle-blower lawsuit filed in the
U.S. District Court, Central District of California, which was
unsealed in February 2010. The qui tam case represents several
states and numerous municipalities and public water districts
seeking millions of dollars in damages from JM Eagle for knowingly
supplying the substandard PVC pipe. Several states and dozens of
other California municipalities and water districts joined that
suit after they investigated the allegations and elected to
intervene in the case.
Eagle pipe," said David M. Birka-White of Birka-White Law Offices
in Danville, California.
The scope and potential damages associated with the deficient pipe
are enormous. JM Eagle is the largest PVC pipe manufacturer with
annual revenue of $1.6 billion on sales of over 1 billion feet of
pipe representing a significant market share.
"Because JM Eagle is perhaps the world's largest manufacturer of
PVC pipe, the impact on the plaintiffs is substantial. The damages
are not only the cost of the pipe, but also include damages for
reduced useful life of the product, diminution in property values,
and damage for replacing entire water systems. This sort of
corporate misconduct undermines confidence in the certification
process and entire building products industry," continued Mr.
Birka-White.
The class-action lawsuit was filed by Birka-White Law Offices and
Farella, Braun & Martel, LLP. The firms are widely regarded as
experts in the field of product liability and consumer fraud.
About Birka-White Law Offices
Birka-White Law Offices -- http://www.birka-white.com/--
specializes in product liability and consumer fraud. David Birka-
White has handled dozens of product liability cases and class
actions involving defective products. He was among the first
attorneys to successfully prosecute multi-state and nationwide
class actions involving defective building products, including
numerous cases involving defective plastic pipe.
About Farella Braun + Martel
Farella Braun + Martel -- http://www.fbm.com/-- represents
clients throughout the United States and abroad in sophisticated
business transactions and high-stakes commercial, civil and
criminal litigation. Founded in 1962, the firm is headquartered
in San Francisco and maintains an office in the Napa Valley
focused on the wine industry. Farella Braun + Martel lawyers are
known for their imaginative legal solutions, dynamism and
intellectual creativity. With an unwavering service ethic and
interdisciplinary team approach, the firm is committed to
advancing clients' objectives in the most effective, coordinated
and efficient manner. Farella Braun + Martel is a green business.
Courthouse News Service reports that a class action claims that LG
Electronics falsified energy-efficiency tests on its French door
refrigerators by "deliberately disabling key components of the
icemakers during energy testing, resulting in significant
underreporting of energy consumption," so they could sell them
with the Energy Star logo, in Newark Federal Court.
A copy of the Complaint in Walsh v. LG Electronics USA, Inc., Case
No. 10-cv-_____, docketed as Doc. 9349 in Case No. 33-av-00001 on
Sept. 2, 2010 (D. N.J.), is available at:
http://www.courthousenews.com/2010/09/07/Bogus.pdf
James C. Shah, Esq.
SHEPHERD, FINKELMAN, MILLER & SHAH, LLP
475 White Horse Pike
E-mail: jshah@sfmslaw.com
Julie D. Miller, Esq.
FREED & WEISS LLC
111 West Washington St., Suite 1331
SHUBLAW LLC
1515 Market St., Suite 1380
Amit Benaroia at Haaretz.com, the online edition of Haaretz
Newspaper in Israel, reports a class-action motion has been filed
against Mifal Hapayis, claiming that the national lottery misleads
players in respect to the nature of prizes they stand to win.
The class-action motion touches only on people who have belonged
to the lottery's subscriber plan. People who happen to buy
tickets occasionally aren't part of this action.
How does the lottery mislead its subscribers? They think they are
subscribing to a certain level or set of awards, but the actual
level is lower, claims the lead plaintiff. For instance, an award
dating from 2004 described as being worth NIS 19 million turned
into 180 Chevrolet cars that cost Mifal Hapayis NIS 15.5 million,
he claims. In another instance, in 2007, a NIS 3 million award
allegedly morphed into 600 television sets with 42" screens that
cost the lottery NIS 1.8 million.
The conversion of awards into objects in 2006 and 2007 cost
players NIS 55 million, the plaintiff estimates.
Altogether, by its gambits from converting awards into objects and
other things, the loss to the community of Mifal Hapayis
subscribers between the years 2003 to 2009 amounts to NIS 246
million, the plaintiff claims.
Mifal Hapayis began its subscriber program in 1982. Subscribers
pay NIS 60 a month and get six fixed numbers that automatically
participate in 60 lotteries a year. They also get to take part in
special non-cash lotteries giving away holidays and so on.
In 2006 Mifal Hapayis reported netting NIS 700 million. In 2008
its net profit climbed to NIS 800 million and in 2009, to NIS 850
million. Meanwhile, it hasn't increased its payouts, says the
plaintiff, who argues that it's been increasing its profit in part
by reducing its awards.
Gambling is illegal in Israel. The only body licensed to provide
services for those who bet is Mifal Hapayis, through the
lotteries. The plaintiff argues that the company is abusing its
monopolistic power to increase its profits.
Mifal Hapayis' profits serve not only to pay its management, and
to fund public causes such as building schools and community
centers.
A spokesperson for the lottery commented that it is studying the
lawsuit and will be filing a defense.
OMNI Energy Services Corp. faces six purported class action
lawsuits in connection with its planned merger with Wellspring
Capital Management LLC, according to the company's Sept. 1, 2010,
for the quarter ended March 31, 2010.
On June 3, 2010, the company entered into an Agreement and Plan of
Merger with Wellspring OMNI Holdings Corporation, and Wellspring
OMNI Acquisition Corporation, a wholly owned subsidiary of Parent,
providing for the Merger of Acquisition with and into the company,
with the company surviving the merger as a subsidiary of Parent.
Six purported class action lawsuits have been filed in connection
with the Merger in state courts in Lafayette Parish, Louisiana,
and two purported class actions were filed in connection with the
Merger in the federal district court for the Western District of
Louisiana. Each court action named the company and its directors
as defendants, and the state court actions also named Wellspring,
Parent and Acquisition.
One of the federal actions filed named Parent and Acquisition as
defendants. The state court complaints allege, among other
things, that the director defendants have breached their fiduciary
duties to shareholders of the company by entering into the Merger
Agreement, failing to disclose certain information with respect to
the Company and failing to maximize shareholder value. The
Wellspring entities are claimed to have aided and abetted the
alleged fiduciary duty breaches by the directors of the company.
The federal court complaints make substantially the same claims as
the state court complaints, but also allege violations of federal
law relating to the company's proxy statement disclosures. One or
more of the complaints seek injunctions against the Merger,
rescission of the Merger if it is consummated, imposition of a
constructive trust, damages, attorneys' fees, expenses and other
The complaints request class action certification and rulings that
the named complainants are representatives of the class. No class
has been certified at present.
Plaintiffs in certain of the state actions and both federal
actions have moved for expedited discovery.
The defendants have filed the appropriate motions in the state
proceedings to consolidate them into a single proceeding and
further to stay such state actions pending the federal court's
consideration of the federal suit.
A hearing is set for Aug. 30, 2010, as to the motions filed in
state court.
Moreover, the defendants are contesting discovery requests made by
some of the state plaintiffs. The defendants have also filed a
motion in the federal court requesting consolidation of the
federal actions, a state of all proceedings until lead plaintiffs
and plaintiffs' counsel are appointed and defendants' motion to
dismiss is resolved, and requesting that outstanding discovery
requests be quashed. No hearing date has yet been set regarding
this motion.
Headquartered in Carencro, LA, OMNI Energy Services Corp. offers a
broad range of integrated services to geophysical companies
engaged in the acquisition of on-shore seismic data and to oil and
gas companies operating primarily in the Gulf of Mexico. OMNI
provides its services through three business segments: Seismic
Services (including drilling, survey and permitting services),
Environmental and Other Services, and Equipment Leasing. OMNI's
services play a significant role with geophysical companies who
have operations in marsh, swamp, shallow water and the U.S. Gulf
Coast also called transition zones and contiguous dry land areas
also called highland zones.
The U.S. Consumer Product Safety Commission, in cooperation with
Paradigm Electronics, of Ontario, Canada, announced a voluntary
recall of about 2,200 Paradigm Cinema 70 CT Subwoofers. Consumers
should stop using recalled products immediately unless otherwise
instructed.
The subwoofer can overheat when the speaker system is played at
high outputs for an extended period of time, posing a fire hazard
to consumers.
The firm has received one report of a subwoofer overheating
causing minor property damage to the carpet beneath the speaker.
No injuries have been reported.
This recall involves subwoofer speakers sold as part of the
Paradigm Cinema 70 CT 120 volt and Paradigm Cinema 70 CT 230 volt
system. The speakers have a black finish and serial numbers
beginning with 111028 and higher. The serial number is located on
the amp panel on the back of the subwoofer. The speaker system
includes two front speakers, two rear speakers, a center channel
and subwoofer. Subwoofers with an amperage rating of 1.25A L 250
volt are not included in this recall. The amperage rating is
located on the back panel of the subwoofer. Pictures of the
recalled products are available at:
http://www.cpsc.gov/cpscpub/prerel/prhtml10/10333.html
The recalled products were manufactured in China and sold through
small specialty stores and independent audio products dealers
nationwide and online at Amazon.com from July 2009 through August
2010 for about $700.
Consumers should immediately stop using the recalled speakers and
contact Paradigm for a repair kit. The kit contains a replacement
fuse and detailed instructions on how to remove the fuse and
install a new one. Consumers will also receive a revised fuse
rating label to be applied directly over the original label.
For additional information, contact Paradigm toll-free at (877)
419-1994 between 8:30 a.m. and 5:00 p.m., Eastern Time Monday
through Friday, or visit the firm's Web site at
http://www.paradigm.com/
The Associated Press reports Partner Communications Company Ltd.
said Tuesday it has been named in a lawsuit alleging the Israel-
based company charges its customers for cellular data usage abroad
and that bills and call details presented to customers do not meet
regulatory requirements.
Partner said the plaintiff has asked the court to give the lawsuit
class-action status. If that happens, the potential claims against
the company could reach hundreds of millions of shekels.
One hundred million shekels equals about $26 million.
The company said it is reviewing the lawsuit.
Step2 Company, of Streetsboro, Ohio, announced a voluntary recall
of about 56,000 Sand & Water Transportation Station Toys in the
United States and 7,700 in Canada. Consumers should stop using
recalled products immediately unless otherwise instructed.
The light blue plastic wheels on the train cars can detach, posing
a choking hazard to young children.
No injuries or incidents have been reported.
This recall involves the Step2 (R)Sand & Water Transportation
Station is a standalone play station for children ages two and up.
The toy station consists of: a round blue plastic table, including
train tracks, train cars in blue, red and yellow, toy sailboats
and a hand rake/shovel. A red Step2 logo decal is on the side of
the table. Train cars with grey wheels are not included in this
recall. Pictures of the recalled products are available at:
The recalled products were manufactured in United States and sold
through target and other major retailers, specialty stores and by
online retailers from December 2008 through June 2010 for between
$49 and $59.
For additional information, contact Step2 at (800) 347-8372
between 8:00 a.m. and 7:00 p.m., Eastern Time, Monday through
Friday or visit the firm's Web site at http://www.step2.com/
The U.S. District Court for the Southern District of New York has
dismissed a consumer class action against Take-Two Interactive
Software, Inc., according to the company's Sept. 3, 2010, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended July 31, 2010.
In July 2005, the company received four complaints for purported
class actions, which were consolidated in the U.S. District Court
for the Southern District of New York.
The plaintiffs, alleged purchasers of the company's Grand Theft
Auto: San Andreas game, assert that the company engaged in
consumer deception and false advertising, breached an implied
warranty of merchantability and were unjustly enriched as a result
of its alleged failure to disclose that Grand Theft Auto: San
Andreas contained "hidden" content.
The complaints seek unspecified damages, declarations of various
violations of law and litigation costs.
In January 2006, the City Attorney for the City of Los Angeles
filed a complaint in the Superior Court of California, alleging
violations of California law on substantially the same basis as
the consumer class action. The company removed the LA City
Attorney lawsuit to federal court, and it was consolidated with
the consumer class action.
In December 2007, the SDNY Court preliminarily approved a
settlement of the consumer class action.
In July 2008, however, the SDNY Court refused to certify the
proposed settlement class on the basis that, under controlling
case law issued after the parties negotiated the settlement, the
plaintiffs could no longer meet their burden of showing that the
case could proceed on the proposed class basis, regardless of
whether the purpose of certification was for litigation or
The plaintiffs subsequently applied for, and on April 15, 2009 the
U.S. Court of Appeals for the Second Circuit granted, permission
to file an interlocutory appeal. The appeal is now pending.
On or about Jan. 29, 2010, the company entered into a settlement
agreement with the plaintiffs in all of these cases, except the LA
City Attorney, that would resolve their claims on a non-class
On Feb. 10, 2010, the parties sent the SDNY Court a proposed
stipulation and order dismissing the plaintiffs' claims. The SDNY
Court dismissed their case on Feb. 16, 2010.
The LA City Attorney action was thereafter dismissed by
stipulation of the parties on May 4, 2010.
Take-Two Interactive Software, Inc. -- http://www.take2games.com/
-- is a global publisher, developer and distributor of interactive
entertainment software, hardware and accessories. The company
operates in two segments: publishing and distribution. The
publishing segment consists of Rockstar Games, 2K Games, 2K Sports
and 2K Play publishing labels. The company develops, markets and
publishes software titles for gaming and entertainment hardware
platforms, including Sony's PLAYSTATION3 (PS3) and PlayStation2
(PS2) computer entertainment systems; Sony's PSP
(PlayStationPortable) (PSP) system; Microsoft's Xbox 360 (Xbox
360) video game and entertainment system; Nintendo's Wii (Wii) and
DS (DS) systems, and for the personal computers (PC) and Games for
Windows. The company's distribution segment, which includes its
Jack of All Games subsidiary, distributes its products, as well as
software, hardware and accessories produced by others to retail
outlets in North America.
Take-Two Interactive Software, Inc., awaits final approval from
the U.S. District Court for the Southern District of New York of
an agreement to settle a consolidated complaint alleging
backdating of stock options, according to the company's Sept. 3,
Commission for the quarter ended July 31, 2010.
In February and March 2006, four purported class action complaints
were filed against the company and certain of its then current and
former officers and directors in the SDNY Court.
The actions were consolidated, and in April 2007 the lead
plaintiffs filed a consolidated second amended complaint which
contained allegations related to purported "hidden content"
contained in Grand Theft Auto: San Andreas and the backdating of
stock options, including the investigation thereof conducted by
the Special Litigation Committee of the Board of Directors and the
restatement of the company's financial statements relating
The complaint was filed against the company, its former Chief
Executive Officer, its former Chief Financial Officer, its former
Chairman of the Board, its Rockstar Games subsidiary, and one
officer and one former officer of the company's Rockstar Games
subsidiary.
The lead plaintiffs sought unspecified compensatory damages and
costs including attorneys' fees and expenses.
In April 2008, the Court dismissed, with leave to amend, all
claims as to all defendants relating to Grand Theft Auto: San
Andreas and certain claims as to the company's former CEO, CFO and
certain director defendants relating to the backdating of stock
In September 2008, the lead plaintiff filed a third amended
consolidated complaint seeking to reinstate these claims which the
company opposed.
On Aug. 31, 2009, the company entered into a memorandum of
understanding with the lead plaintiffs to comprehensively settle
all claims asserted by them against the company, its Rockstar
Games subsidiary and all of the current and former officers and
directors named in the actions.
Under the terms of the proposed settlement, the company will pay
approximately $20.1 million into a settlement fund for the benefit
of class members, approximately $15.3 million of which will be
paid by the company's insurance carriers and the balance of
approximately $4.8 million has previously been accrued for in the
company's financial statements.
In addition to the payment to the settlement fund, the company
will also supplement the substantial changes that it has already
implemented in its corporate governance policies and practices.
The proposed settlement is subject to the completion of final
documentation and preliminary and final approval by the SDNY
Court. Neither the company, its subsidiary nor any of the
individuals admit any wrongdoing as part of the proposed
On June 29, 2010, the SDNY Court granted preliminary approval of
the settlement, and scheduled a fairness hearing to be held on
Oct. 12, 2010.
In accordance with the terms of the settlement, and pending its
finalization, $20.1 million was placed into an escrow fund for the
benefit of class members.
implemented in its corporate governance policies and practices
with certain additional changes.
David Smith, individually and on behalf of others similarly
situated v. TeleNav, Inc., et al., Case No. 10-cv-03942 (N.D.
Calif. September 2, 2010), brings claims against TeleNav and
certain officers and directors of the Company for violations of
Sections 11 and 15 of the Securities Act of 1933. Mr. Smith
accuses TeleNav of failing to disclose in the Registration
Statement and Prospectus issued in connection with its May 13,
2010 initial public offering that the Company would soon be
renegotiating its current contract for TeleNav to provide Sprint
with its Sprint Navigation application, in a manner which would
result in lower revenues to TelenNav.
On May 13, 2010, TeleNav accomplished its initial public offering
of 7 million shares of common stock at $8.00 per share (including
5.5 million shares sold by TeleNav and 1.5 million shares sold by
stockholders, with an option to the underwriters for a period of
30 days to purchase up to 1.05 million additional shares from
TeleNav for over-allotments), for gross proceeds of $52.4 million
to TeleNav (including the over-allotment), pursuant to a
Registration Statement and Prospectus.
Following the IPO, TeleNav's stock largely traded in the $8 to $9
per share range until July 29, 2010, when TeleNav disclosed that
it had started negotiations regarding contract roll-over with
Sprint early and, if successful, the contract roll-over would
probably lead to an aggregate reduction in revenue from its
largest customer. On this news, Mr. Smith says TeleNav's stock
price plunged $3.47 per share, to close at $5.44 per share on July
30, 2010, a one-day decline of 39% on high volume. The stock
continued to decline below $5 per share over the next few weeks.
The Complaint says Sprint could potentially be looking for very
different terms that could result not only in lower ARPU but also
lower total revenue.
TeleNav is a provider of wireless location-based services,
including global position system navigation, mobile resource
management, assets GPS tracking and local search.
Shawn A. Williams, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
Post Montgomery Center
One Montgomery Street, Suite 1800
E-mail: shawnw@rgrdlaw.com
Darren J. Robbins, Esq.
David C. Walton, Esq.
655 West Broadway, Suite 1900
E-mail: darrenr@rgrdlaw.com
davew@rgrdlaw.com
Frank J. Johnson, Esq.
Francis A. Bottini, Jr., Esq.
Brett M. Weaver, Esq.
JOHNSON BOTTINI, LLP
Kendall Law Group, a national securities firm, disclosed Tuesday
that it plans to join a lawsuit on behalf of shareholders of
TeleNav, Inc., alleging securities violations by the Company and
certain of its officers for violations of federal securities laws.
Purchasers of TeleNav common stock pursuant to the Company's
alleged false and misleading registration statement and prospectus
issued in connection with its May 13, 2010 initial public offering
(IPO) are urged to contact attorney Scott Kendall at 877-744-3728
or skendall@kendalllawgroup.com to learn more about your rights.
TeleNav, certain of its officers and directors and the
underwriters of the IPO have been charged with violations of the
Securities Act of 1933. The class action complaint filed alleges
that on May 13, 2010, TeleNav completed its IPO but failed to
disclose adverse facts. TeleNav did not reveal that its current
contract with Sprint Nextel Corporation, TeleNav's largest
customer, was up for renegotiation and that Sprint was not willing
to continue with the same contract terms beyond December 31, 2010.
On July 29, 2010, in filings with the Securities and Exchange
Commission, TeleNav disclosed negotiations regarding contract
roll-over with Sprint had been started early and that the contract
roll-over, if successful, would probably lead to an aggregate
reduction in revenue from its largest customer. TeleNav's stock
price experienced a one-day decline of 39% on high volume trading
after the news broke.
Kendall Law Group has the credentials and experience to pursue any
type of complex securities litigation in the nation. The firm, led
by a former federal judge and a former U.S. Attorney, is a
national securities firm that represents shareholders when
publicly traded companies violate the law. Shareholders who
purchased TeleNav stock pursuant to the Company's alleged false
and misleading registration statement and prospectus issued in
connection with its IPO may have a claim against the company and
are urged to contact attorney Scott Kendall for more information:
Scott Kendall, Esq.
KENDALL LAW GROUP LLP
3232 McKinney, Ste. 700
E-mail: skendall@kendalllawgroup.com
Beth Williamson at Travel News reports the hugely popular Internet
travel advice specialist TripAdvisor is under legal threat.
A group, which represents more than one hundred hoteliers and
includes user reviews of thousands more, is preparing itself for a
transatlantic assault.
The U.K.-based hotel reputation management company Kwikchex has
said that around 120 hotels, predominantly from the US and UK have
agreed to join the class action which centers on how certain
information is contained in some of the reviews of the properties
it represents.
Chris Emmins, Co-founder of KwiChex, said the number of hotels
willing to participate is increasing daily after it announced
legal action against TripAdvisor, owned by Expedia, if certain
demands are not recognized. These demands relate to how reviews
appear on the Web site, specifically those that are less
favorable, despite TripAdvisor's policy of allowing a property the
right of reply. Many hoteliers are aggrieved that untrue and
damaging allegations from reviewers are impacting unfairly on
business, stating that such claims are legally unsubstantiated.
Mr. Emmins says the KwikChex represented hotels are being
seriously defamed by negative comments which range from food
poisoning to allegations of theft and even assault by members of
staff. KwixChex has prepared a dossier containing such details to
send to TripAdvisor, demanding that the Web site remove all
slanderous comments of face legal action, with a potential class
action being prepared on both sides of the Atlantic. The group
claims that is no suitable response is forthcoming it will launch
legal action in the US in the first instance. A TripAdvisor
spokesperson said that the company would not make any statement on
the impending action.
The U.S. District Court for the Eastern District of Wisconsin gave
its final approval to the agreement entered into by The Toro
Company settling a consolidated consumer fraud class action,
according to the company's Sept. 2, 2010, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
In June 2004, individuals who claim to have purchased lawnmowers
in Illinois and Minnesota filed a class action lawsuit in Illinois
state court against the company and other defendants alleging that
the horsepower labels on the products the plaintiffs purchased
were inaccurate. Those individuals later amended their complaint
to add additional plaintiffs and an additional defendant.
The plaintiffs asserted violations of the federal Racketeer
Influenced and Corrupt Organizations Act and state statutory and
common law claims. The plaintiffs sought certification of a class
of all persons in the United States who, beginning Jan. 1, 1994
through the present, purchased a lawnmower containing a two-stroke
or four-stroke gas combustible engine up to 30 horsepower that was
manufactured or sold by the defendants. The amended complaint
also sought an injunction, unspecified compensatory and punitive
damages, treble damages under RICO, and attorneys' fees.
In May 2006, the case was removed to federal court in the Southern
District of Illinois.
In August 2006, the company, together with the other defendants
other than MTD Products Inc., filed a motion to dismiss the
amended complaint. Also in August 2006, the plaintiffs filed a
motion for preliminary approval of a settlement agreement with MTD
and certification of a settlement class. In December 2006,
another defendant, American Honda Motor Company, notified the
company and the other defendants that it had reached a settlement
agreement with the plaintiffs.
In May 2008, the court issued a memorandum and order that (i)
dismissed the RICO claim in its entirety; (ii) dismissed all non-
Illinois state-law claims but with instructions that such claims
could be re-filed in local courts; and (iii) rejected the proposed
settlement with MTD. The proposed Honda settlement was not under
consideration by the court and was not addressed in the memorandum
and order. Also in May 2008, the plaintiffs (i) re-filed the
Illinois claims with the court; and (ii) filed non-Illinois claims
in federal courts in the District of New Jersey and the Northern
District of California with essentially the same state law claims.
In June 2008, the plaintiffs filed a motion with the U.S. Judicial
Panel on Multidistrict Litigation that (i) stated their intent to
file lawsuits in all 50 states and the District of Columbia; and
(ii) sought to have all of the cases transferred for coordinated
pretrial proceedings. In August 2008, the MDL Panel issued an
order denying the transfer request. Additional lawsuits, some of
which included additional plaintiffs, were filed in various
federal and state courts asserting essentially the same state law
claims. Lawsuits were subsequently filed in federal and state
courts throughout the United States, which collectively assert
claims under the laws of each state.
In September 2008, the company and other defendants filed a motion
with the MDL Panel that sought to transfer the multiple actions
for coordinated pretrial proceedings. In early December 2008, the
MDL Panel issued an order that (i) transferred 23 lawsuits, which
collectively asserted claims under the laws of 16 states, for
coordinated or consolidated pretrial proceedings; (ii) selected
the U.S. District Court for the Eastern District of Wisconsin as
the transferee district; and (iii) provided that additional
lawsuits will be treated as "tag-along" actions in accordance with
its rules.
An initial hearing was held in the U.S District Court for the
Eastern District of Wisconsin in January 2009. At that hearing,
the Court (i) appointed lead plaintiffs' counsel, and (ii) entered
a stay of all litigation so that the parties could explore
mediation.
Formal mediation proceedings were commenced, settlement
discussions were conducted, and ultimately all defendants entered
into various settlement agreements with the plaintiffs in February
The settlement agreement entered into by the company and certain
other defendants provides for, among other things, (i) a monetary
settlement, (ii) an additional warranty period for some engines
that are subject to the litigation, and (iii) injunctive relief
relating to power rating labeling practices.
The plaintiffs filed a motion for preliminary approval of the
settlement agreement and certification of a settlement class, and
the court granted the motion.
The settlement is not final for all purposes until after members
of the proposed settlement class receive notice of the settlement,
the Court determines that the settlement is fair, reasonable and
adequate, and applicable appeal periods expire without appeal.
The Court has scheduled a hearing in June 2010, at which it is
expected that the Court will consider whether the settlement is
fair, reasonable and adequate.
On Aug. 16, 2010, the Court filed an order and judgment in which
it determined that the settlement entered into by the company and
certain other defendants is fair, reasonable, and adequate, and
approved the settlement. The Court filed similar orders and
judgments approving the settlements entered into by other
Notwithstanding the orders and judgments filed by the Court, these
settlements are not final for all purposes until the applicable
appeal period expires without appeal or the order is affirmed on
appeal. On Aug. 23, 2010, certain objecting members of the
settlement class filed a notice with the U.S. Court of Appeals for
the Seventh Circuit to appeal the order and judgment approving the
settlement with the company and certain other defendants and the
other orders and judgments approving the settlements with the
other defendants.
The Toro Company -- http://www.toro.com/-- is engaged in
designing, manufacturing and marketing professional turf
maintenance equipment and services, turf and micro irrigation
systems, landscaping equipment, and residential yard products.
The company classifies its operations in two business segments:
professional and residential. A third segment called other
consists of domestic company-owned distributorships, corporate
functions, and Toro Credit Company, a wholly owned financing
subsidiary. The company's products are advertised and sold at the
retail level under the trademarks of Toro, Exmark, Irritrol,
Hayter, Pope, Lawn-Boy and Lawn Genie. Toro manufactures its
products in the United States, Mexico, Australia, Italy, and the
The Toro Company defends a class action litigation in Canada over
horsepower labels on its lawnmowers, according to the company's
Sept. 2, 2010, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended July 30, 2010.
In March 2010, individuals who claim to have purchased lawnmowers
in Canada filed class action litigation against the company and
other defendants that (i) contains allegations under applicable
Canadian law that are similar to the allegations made by the
United States plaintiffs, (ii) seeks certification of a class of
all persons in Canada who, beginning January 1, 1994 through the
present, purchased a lawnmower containing a gas combustible engine
up to 30 horsepower that was manufactured or sold by the
defendants, and (iii) seeks under applicable Canadian law
unspecified compensatory and punitive damages, attorneys' costs
and fees, and equitable relief.
Management continues to evaluate this litigation.
The approval of a settlement agreement resolving a putative
employment class action lawsuit against Ulta Salon, Cosmetics &
Fragrance, Inc., remains pending, according to the company's
In July 2009, a putative employment class action lawsuit was filed
against the company and certain unnamed defendants in State Court
in California. The suit alleges that Ulta misclassified its store
General Managers and Salon Managers as exempt from the Fair Labor
Standards Act and California Labor Code. The suit seeks to
recover damages and penalties as a result of this alleged
misclassification.
On Aug. 27, 2009, the company filed its answer to the lawsuit, and
on Aug. 31, 2009 the company moved the action to the U.S. District
Court for the Northern District of California. On Nov. 2, 2009,
the plaintiffs filed an amended complaint adding another named
plaintiff. On May 26, 2010, the company and plaintiffs engaged in
a voluntary mediation.
The company relates that although it continues to deny plaintiffs'
allegations, in the interest of putting the Salon Manager claims
behind it, the company agreed in principle to settle all claims of
the putative Salon Manager class.
The settlement, which is not an admission of liability, is subject
to final documentation and Court approval. Counsel for the
plaintiffs has agreed to dismiss without prejudice the claims of
the General Managers.
Ulta Salon, Cosmetics & Fragrance, Inc. -- http://www.ulta.com/--
is a beauty retailer that that provides one-stop shopping for
prestige, mass and salon products and salon services in the United
Ulta Salon, Cosmetics & Fragrance, Inc., defends a putative
employment class action lawsuit alleging violations of the
California labor laws, according to the company's Sept. 2, 2010,
for the quarter ended July 31, 2010.
In May, 2010, a putative employment class action lawsuit was filed
in California.
The plaintiff and members of the proposed class are alleged to be
(or have been) nonexempt hourly employees.
The suit alleges that Ulta violated various provisions of the
California labor laws and failed to provide plaintiff and members
of the proposed class with full meal periods, paid rest breaks,
certain wages, overtime compensation and premium pay. The suit
seeks to recover damages and penalties as a result of these
alleged practices.
On June 21, 2010, the company filed its answer to the lawsuit.
UTi Worldwide Inc. and several other global logistics providers
continue to defend a purported class-action suit that was filed
with the U.S. District Court for the Eastern District of New York,
alleging antitrust violations.
The suit was filed on Jan. 3, 2008, under the caption, "Precision
Associates, Inc. v. Panalpina World Transport (Holding) Ltd." It
alleges that the defendants engaged in various forms of anti-
competitive practices and seeks an unspecified amount of treble
monetary damages and injunctive relief under U.S. antitrust laws.
Also named as defendants in the lawsuit are:
-- Panalpina, Inc.;
-- Kuhne + Nagel International AG;
-- Kuehne + Nagel, Inc.;
-- Expeditors International of Washinton, Inc.;
-- EGL, Inc.;
-- EGL Eagle Global Logistics, LP;
-- Deutsche Bahn AG;
-- Schenker AG;
-- Schenker, Inc.;
-- Deutsche Post AG;
-- DHL EXpress (USA), Inc.;
-- UTi Worldwide, Inc.; and
-- Spedlogswiss a/k/a The Association of Swiss Forwarders.
Precision Associates, Inc., James Barnes and Anything Goes LLC
d/b/a Mail Boxes Etc., bring this action under the provisions of
Rule 23(a) and (b)(2) and (b)(3) of the Federal Rules of Civil
Procedure on behalf of all persons (excluding governmental
entities, defendants, their subsidiaries and affiliates, and their
co-conspirators) who directly purchased Freight Forwarding
Services in the U.S. from any of the defendants or any subsidiary
or affiliate thereof, or any co-conspirator, at any time during
the period from Jan. 1, 2001, to the present.
They want the court to rule on:
(a) whether defendants and their co-conspirators engaged in
a contract, conspiracy or combination to raise, fix,
stabilize, or maintain the prices of Freight Forwarding
Services sold in the United States;
(b) whether the alleged contract, conspiracy or combination
violated Section 1 of the Sherman Act;
(c) the duration and extent of the contract, conspiracy or
combination alleged;
(d) whether the defendants and their co-conspirators took
affirmative steps to conceal the contract, conspiracy
or combination;
(e) whether each of the defendants was a participant in the
contract, conspiracy or combination alleged;
(f) whether the defendants' conduct caused the prices of
Freight Forwarding Services to be set at an
artificially high and non-competitive level;
(g) the effect of defendants' contract, conspiracy or
combination upon interstate commerce;
(h) the appropriate measure of damages; and
(i) whether plaintiffs and class members are entitled to
declaratory and/or injunctive relief.
The plaintiffs pray:
-- that the court determine that the Sherman Act claim
contained may be maintained as a class action under Rule
23(a), (b)(2), and (b)(3) of the Federal Rules of Civil
Procedure;
-- that the unlawful contract, conspiracy or combination
alleged be adjudged and decreed to be a per se restraint
of trade or commerce in violation of Section 1 of the
Sherman Act;
-- that plaintiffs and the class recover damages, as
provided by law, and that a joint and several judgment
in favor of plaintiffs and the class be entered against
the defendants in an amount to be trebled in accordance
with the antitrust laws;
-- that defendants, their affiliates, successors,
transferees, assignees, and the officers, directors,
partners, agents and employees thereof, and all other
persons acting or claiming to act on their behalf, be
permanently enjoined and restrained from in any manner:
(1) continuing, maintaining, or renewing the contract,
conspiracy or combination alleged, or from entering
into any other conspiracy alleged, or from entering
into any other contract, conspiracy or combination
having a similar purpose of effect, and from
adopting or following any practice, plan, program or
device having a similar purpose or effect; and
(2) communicating or causing to be communicated to any
other person engaged in the distribution or sale of
Freight Forwarding Services, information concerning
prices or other terms or conditions of sale of any
such products except to the extent necessary in
connection with bona fide sale transactions between
the parties to such communication;
-- that plaintiffs and members of the class be awarded pre-
and post-judgment interest and that interest be awarded
at the highest legal rate from and after the date of
service of the initial complaint in this action;
-- that plaintiffs and members of the class recover their
costs of this suit, including reasonable attorneys' fees
as provided by law; and
-- that plaintiffs and members of the class have such
other, further, and different relief as the case may
require and the court may deem just and proper under the
circumstances.
No further updates were reported in the company's Sept. 3, 2010,
The suit is Precision Associates, Inc., et al. v. Panalpina World
Transport (Holding) Ltd. et al., Case No. CV 08 0042 E.D.N.Y.).
Representing the plaintiffs is:
Christopher Lovell, Esq.
Lovell Stewart Halebian LLP
500 Fifth Avenue, Floor 58
E-mail: clovell@lshllp.com
Representing the defendants are:
August C. Venturini, Esq.
Venturini & Associates
230 Park Avenue, Suite 545
E-mail: acv@venturini-law.com
James Joseph Calder, Esq.
E-mail: james.calder@kattenlaw.com
Breon S. Peace, Esq.
Cleary Gottlieb Steen & Hamilton LLP
One Liberty Plaza
E-mail: bpeace@cgsh.com
Wal-Mart Stores, Inc.'s appeal to a $188 million judgment in the
matter, Braun/Hummel v. Wal-Mart Stores, Inc., continues to remain
The company is a defendant in various cases containing class-
action allegations in which the plaintiffs are current and former
hourly associates who allege that the company committed wage-and-
hour violations by failing to provide rest breaks, meal periods,
or other benefits, or otherwise by failing to pay them correctly.
The complaints generally seek unspecified monetary damages,
injunctive relief, or both.
In one of the wage-and-hour lawsuits captioned Braun/Hummel v.
Wal-Mart Stores, Inc., a trial was commenced in September 2006, in
Philadelphia, Pennsylvania. The plaintiffs allege that the
company failed to pay class members for all hours worked and
prevented class members from taking their full meal and rest
breaks.
On Oct. 13, 2006, the jury awarded back-pay damages to the
plaintiffs of approximately $78 million on their claims for off-
the-clock work and missed rest breaks. The jury found in favor of
the company on the plaintiffs' meal-period claims.
On Nov. 14, 2007, the trial judge entered a final judgment in the
approximate amount of $188 million, which included the jury's
back-pay award plus statutory penalties, prejudgment interest and
The company believes it has substantial factual and legal defenses
to the claims at issue, and on Dec. 7, 2007, the company filed its
Notice of Appeal.
Wal-Mart Stores, Inc. -- http://walmartstores.com/-- serves
customers and club members more than 200 million times per week at
more than 8,000 retail units under 53 different banners in 15
countries. The company operates in three business segments:
Walmart U.S. and Sam's Club in the United States, and Walmart
International in 14 countries and Puerto Rico.
Class certification has yet to be addressed in several cases
against Wal-Mart Stores, Inc., by groups of salaried managers, and
challenge their exempt status under state and federal laws.
The company is a defendant in several cases in which the
plaintiffs seek class or collective certification of various
groups of salaried managers, and challenge their exempt status
under state and federal laws.
In one of those cases (Sepulveda v. Wal-Mart Stores, Inc.), class
certification was denied by the trial court on May 5, 2006. On
April 25, 2008, a three-judge panel of the United States Court of
Appeals for the Ninth Circuit affirmed the trial court's ruling in
part and reversed it in part, and remanded the case for further
proceedings. On May 16, 2008, the company filed a petition
seeking review of that ruling by a larger panel of the court. On
Oct. 10, 2008, the court entered an Order staying all proceedings
in the Sepulveda appeal pending the final disposition of the
appeal in Dukes v. Wal-Mart Stores, Inc.
Class certification has not been addressed in the other cases. The
Company cannot reasonably estimate the possible loss or range of
loss that may arise from these lawsuits.
No updates regarding the cases were reported in the company's
AmeriCredit Corp. says that on Aug. 24, 2010, an action styled
Asbestos Workers Local 42 Pension Fund, Plaintiff vs. Daniel E.
Berce, Clifton H. Morris, Ian M. Cumming, Justin R. Wheeler, James
H. Greer, A.R. Dike, Douglas K. Higgins, Kenneth H. Jones, Jr.,
John R. Clay, Robert B. Sturges, General Motors Holdings LLC and
Goalie Texas Holdco Inc., Defendants, and AmeriCredit Corp.,
Nominal Defendant, was filed in the District Court of Tarrant
County, Tex., Cause No. 017 247635-10.
In the Asbestos Workers Case, like previously filed litigation
related to the proposed transaction between the Company and
General Motors Holdings LLC, the complaint alleges that the
Company's individual officers and directors breached their
fiduciary duties.
The complaint seeks to rescind the transaction and enjoin its
consummation and also to award plaintiff costs and disbursements
including attorneys' and expert fees.
AmeriCredit Corp.
801 Cherry Street, Suite 3500
Fort Worth, Tex. 76102
The Company is a leading independent auto finance company that has
been operating in the automobile finance business since September
1992. The Company purchases auto finance contracts for new and
used vehicles purchased by consumers from franchised and select
independent automobile dealerships.
Interserve (Defence) Ltd was fined GBP33,000 for exposing Ministry
of Defence (MoD) workers to asbestos fibers, according to a Health
and Safety Executive press release dated Sept. 8, 2010.
Interserve, of Waterloo Road, London, appeared at Oxford Crown
Court on Sept. 8, 2010 following an investigation by the HSE. The
Company was fined GBP33,000 and ordered to pay costs of GBP17,936.
An asbestos survey undertaken in the boiler room at a MoD base in
Arncott, Bicester, in early 2005, found that the whole room was
considered to be contaminated with asbestos and recommended that
access to the room should be restricted until it was removed.
Interserve failed to follow the advice of the survey and
consequently workers were left at risk of exposure to deadly
asbestos fibers for over a year.
The Company pleaded guilty at a previous hearing, on June 11,
2010, at Banbury Magistrates Court, to contravening regulations
4(8)(c), 6(1)(a) and 10(1)(a) of the Control of Asbestos
Regulations 2002. The offenses were committed at the Oxfordshire
MoD site between May 23, 2009 and Sept. 30, 2006.
HSE Inspector for Oxfordshire, Matthew Lee, said, "Around 4,000
people die each year from past exposure to asbestos and the
material may be present in any building built before the year
"It is therefore essential that duty holders and facilities
managers are aware of the risk it still poses and their
responsibilities in managing it.
"Facilities managers are key to ensuring that effective management
systems are in place to protect workers and to ensure that duty
holders meet their legal responsibilities."
Bourne Capital,
91 Waterloo Rd
Fax: 44-2079022001
American Financial Group, Inc. says that, at June 30, 2010, the
property and casualty group's A&E reserves were US$360 million,
net of reinsurance recoverable, according to the Company's
quarterly report filed on Aug. 9, 2010 with the Securities and
Exchange Commission.
During the second quarter of 2010, the Company completed the
previously announced in-depth internal review of its asbestos and
environmental exposures relating to the run-off operations of its
property and casualty group and its exposures related to former
railroad and manufacturing operations and sites.
At June 30, 2010, the Company's three year survival ratio for
property and casualty exposures was 9.6 times paid losses for the
asbestos reserves and 8.5 times paid losses for the total A&E
reserves. These ratios compare favorably with industry data
published by Conning Research and Consulting, Inc. in May 2010,
which indicate that industry survival ratios were 8.2 for asbestos
and 7.7 for total industry A&E reserves at Dec. 31, 2009.
Cincinnati, Ohio-based American Financial Group, Inc. offers
commercial property/casualty insurance focused on specialties such
as workers' compensation, professional liability, ocean and inland
marine, and multiperil crop insurance. The Company also provides
surety coverage for contractors and risk management services.
Everest Re Group, Ltd. recorded gross reserves of US$614.1 million
for asbestos and environmental matters during the three and six
months ended June 30, 2010, compared with US$704.5 million during
the three and six months ended June 30, 2009.
The Company recorded net reserves of US$589.5 million for A&E
matters during the three and six months ended June 30, 2010,
compared with US$673.9 million during the three and six months
At June 30, 2010, the gross reserves for A&E losses were comprised
of US$133.9 million representing case reserves reported by ceding
companies, US$136.8 million representing additional case reserves
established by the Company on assumed reinsurance claims, US$58.7
million representing case reserves established by the Company on
direct excess insurance claims, including Mt. McKinley, and
US$284.8 million representing IBNR (incurred but not reported)
reserves.
With respect to asbestos only, at June 30, 2010, the Company had
gross asbestos loss reserves of US$586.1 million, or 95.4%, of
total A&E reserves, of which US$459.3 million was for assumed
business and US$126.8 million was for direct business.
At March 31, 2010, the Company had gross asbestos loss reserves of
US$595.8 million, or 95.3%, of total asbestos and environmental
reserves, of which US$465.9 million was for assumed business and
US$129.9 million was for direct business. (Class Action Reporter,
June 18, 2010)
The Company's net three year asbestos survival ratio was 6.7 years
at June 30, 2010.
Hamilton, Bermuda-based Everest Re Group, Ltd. provides
reinsurance and insurance in the United States, Bermuda and
international markets.
Sealed Air Corporation, since the beginning of 2000, has been
served with a number of lawsuits alleging that, as a result of the
Cryovac transaction, the Company is responsible for alleged
asbestos liabilities of W. R. Grace & Co. and its subsidiaries,
some of which were also named as co-defendants in some of these
Among these lawsuits are several purported class actions and a
number of personal injury lawsuits. Some plaintiffs seek damages
for personal injury or wrongful death, while others seek medical
monitoring, environmental remediation or remedies related to an
attic insulation product.
Neither the former Sealed Air Corporation nor Cryovac, Inc. ever
produced or sold any of the asbestos-containing materials that are
the subjects of these cases. None of these cases has reached
resolution through judgment, settlement or otherwise.
In view of Grace's Chapter 11 filing, the Company may receive
additional claims asserting that the Company is liable for
obligations that Grace had agreed to retain in the Cryovac
transaction and for which the Company may be contingently liable.
To date, the Company is not aware of any material claims having
been asserted or threatened against it.
Final determinations and accountings under the Cryovac transaction
agreements with respect to matters pertaining to the transaction
had not been completed at the time of Grace's Chapter 11 filing in
The Company has filed claims in the bankruptcy proceeding that
reflect the costs and liabilities that it has incurred or may
incur that Grace and its affiliates agreed to retain or that are
subject to indemnification by Grace and its affiliates under the
Cryovac transaction agreements, other than payments to be made
under the Settlement agreement.
Grace has alleged that the Company is responsible for specified
amounts under the Cryovac transaction agreements.
Elmwood Park, N.J.-based Sealed Air Corporation manufactures
packaging and performance-based materials and equipment systems
that now serve an array of food, industrial, medical and consumer
applications. The Company has business operations in 51 countries
and sells products under brands like Bubble Wrap brand cushioning,
Jiffy protective mailers, Instapak foam-in-place systems and
Cryovac packaging technology.
Sealed Air Corporation's Canadian subsidiary, Sealed Air (Canada)
Co./Cie, since 2004, is a defendant in an asbestos case styled
Thundersky v. The Attorney General of Canada, et al. (File No.
CI04-01-39818).
The case is pending in the Manitoba Court of Queen's Bench. W. R.
Grace & Co. and W. R. Grace & Co.-Conn. are also named as
defendants. The plaintiff brought the claim as a putative class
proceeding and seeks recovery for alleged injuries suffered by any
Canadian resident, other than in the course of employment, as a
result of Grace's marketing, selling, processing, manufacturing,
distributing and/or delivering asbestos or asbestos-containing
products in Canada prior to the Cryovac Transaction.
A plaintiff filed another proceeding in January 2005 in the
Manitoba Court of The Queen's Bench naming the Company and
specified subsidiaries as defendants. The latter proceeding, Her
Majesty the Queen in Right of the Province of Manitoba v. The
Attorney General of Canada, et al. (File No. CI05-01-41069), seeks
the recovery of the cost of insured health services allegedly
provided by the Government of Manitoba to the members of the class
of plaintiffs in the Thundersky proceeding.
In October 2005, the Company learned that six additional putative
class proceedings had been brought in various provincial and
federal courts in Canada seeking recovery from the Company and its
subsidiaries Cryovac, Inc. and Sealed Air (Canada) Co./Cie, as
well as other defendants including W. R. Grace & Co. and W. R.
Grace & Co.-Conn., for alleged injuries suffered by any Canadian
resident, other than in the course of employment (except with
respect to one of these six claims), as a result of Grace's
marketing, selling, manufacturing, processing, distributing and/or
delivering asbestos or asbestos-containing products in Canada
prior to the Cryovac transaction.
Grace and W. R. Grace & Co.-Conn. have agreed to defend, indemnify
and hold harmless the Company and its affiliates in respect of any
liability and expense, including legal fees and costs, in these
In April 2001, Grace Canada, Inc. had obtained an order of the
Superior Court of Justice, Commercial List, Toronto (Canadian
Court), recognizing the Chapter 11 actions in the United States of
America involving Grace Canada, Inc.'s U.S. parent corporation and
other affiliates of Grace Canada, Inc., and enjoining all new
actions and staying all current proceedings against Grace Canada,
Inc. related to asbestos under the Companies' Creditors
Arrangement Act. That order has been renewed repeatedly.
In November 2005, upon motion by Grace Canada, Inc., the Canadian
Court ordered an extension of the injunction and stay to actions
involving asbestos against the Company and its Canadian affiliate
and the Attorney General of Canada, which had the effect of
staying all of the Canadian actions referred to above. The
parties finalized a global settlement of these Canadian actions
(except for claims against the Canadian government).
That settlement, which has subsequently been amended (the Canadian
Settlement) will be entirely funded by Grace. The Canadian Court
issued an Order on Dec. 13, 2009 approving the Canadian
EnPro Industries, Inc.'s affiliate, Garlock Sealing Technologies
LLC (GST LLC), as of June 30, 2010 recorded US$157.1 million as an
asbestos insurance receivable and US$473.1 million as an asbestos
The Company recorded asbestos-related expenses of US$8.8 million
during the quarter ended June 30, 2010, compared with US$14.3
million during the quarter ended June 30, 2009.
The Company recorded asbestos-related expenses of US$23.3 million
during the six months ended June 30, 2010, compared with US$27.9
million during the six months ended June 30, 2009.
The historical business operations of GST LLC and The Anchor
Packing Company have resulted in a substantial volume of asbestos
litigation in which plaintiffs have alleged personal injury or
death as a result of exposure to asbestos fibers.
Those subsidiaries manufactured and/or sold industrial sealing
products that contained encapsulated asbestos fibers. The
Company's subsidiaries' exposure to asbestos litigation and their
relationships with insurance carriers are managed through Garrison
Litigation Management Group, Ltd.
On June 5, 2010, GST LLC, Garrison and Anchor filed voluntary
petitions for reorganization under Chapter 11 of the U.S.
Bankruptcy Code in the U.S. Bankruptcy Court for the Western
District of North Carolina in Charlotte. The filings were the
initial step in a claims resolution process.
As a result of the initiation of the Chapter 11 proceedings, the
resolution of asbestos claims is subject to the jurisdiction of
the Bankruptcy Court. The filing of the Chapter 11 cases
automatically stayed the prosecution of pending asbestos products
liability lawsuits, and initiation of new such lawsuits, against
the Filers.
Further, the Bankruptcy Court has issued an order enjoining
plaintiffs from bringing or further prosecuting asbestos products
liability actions against affiliates of the Filers, including the
Company, Coltec Industries Inc. and all their subsidiaries, during
the pendency of the Chapter 11 proceedings, subject to further
order of the Bankruptcy Court.
GST LLC and Anchor have been among a large number of defendants in
actions filed in various states by plaintiffs alleging injury or
death as a result of exposure to asbestos fibers. Among the many
products at issue in these actions are industrial sealing
products, including gaskets and packing. The damages claimed have
varied from action to action, and in some cases plaintiffs seek
both compensatory and punitive damages.
To date, neither GST LLC nor Anchor has been required to pay any
punitive damage awards, although there can be no assurance that
they will not be required to do so in the future. Since the first
asbestos-related lawsuits were filed against GST LLC in 1975, GST
LLC and Anchor have processed more than 900,000 asbestos claims to
conclusion (including judgments, settlements and dismissals) and,
together with their insurers, have paid over US$1.4 billion in
settlements and judgments and over US$400 million in fees and
Charlotte, N.C.-based EnPro Industries, Inc.'s Sealing Products
segment offers gaskets, metal and non-metal seals, compression
packing, rotary lip seals, elastomeric seals, hydraulic
components, expansion joints, and PTFE parts. Its Engineered
Products segment makes bearings, air compressors, vacuum pumps,
diesel and natural gas engines, and industrial tooling systems
under GGB and Compressor Products International brands.
Of about 90,000 open asbestos cases at June 5, 2010, EnPro
Industries, Inc. is aware of about 5,600 (6.3%) that involve
claimants alleging mesothelioma.
A large majority of the amount of settlement payments made by GST
LLC in recent years have been paid in connection with mesothelioma
About 1,900 new claims were filed against the Company's
subsidiaries in the first half of 2010 (until June 5, 2010)
compared to 2,200 claims filed in the first half of 2009. The
number of new actions filed against its subsidiaries in 2009
(4,400) was about 20% lower than the number filed in 2008 (5,500)
and also lower than the number filed in 2007 (5,200).
The overall trend of declining new filings has been principally in
non-malignant claims, but there has also been a fairly significant
decline in claims alleging lung and other cancers (other than
mesothelioma). Conversely, the number of new filings of claims
alleging mesothelioma increased in each of 2007, 2008 and 2009.
The disease alleged is not yet known in about 13% of the 2009 and
2010 filings.
Factors in the increase of mesothelioma claims against the
Company's subsidiaries in the last three years appear to include
an increase in the propensity to sue by mesothelioma patients
generally and also an increase in the percentage of claimants who
name Garlock Sealing Technologies LLC as a defendant.
LLC (GST LLC), during the first half of 2010, began three
asbestos-related trials.
In a Texas mesothelioma case, the jury awarded the plaintiff
US$3 million; GST LLC's 45% share of this verdict was
US$1,350,000. GST LLC appealed. Two mesothelioma trials in
Philadelphia settled prior to a jury returning a verdict.
GST LLC won defense verdicts in 10 of 17 cases tried to verdict in
the years 2006 through 2009. In the 10 successful jury trials,
the juries determined that either GST LLC's products were not
defective, that GST LLC was not negligent, or that the claimant
was not exposed to GST LLC's products.
GST LLC's share of the eight adverse verdicts, most of which are
being appealed, ranged from nil to US$1,350,000 and averaged about
US$490,000.
At June 4, 2010, five asbestos appeals of Enpro Industries, Inc.
affiliate, Garlock Sealing Technologies LLC (GST LLC), were
pending from adverse verdicts totaling US$3.6 million.
In March 2010, the Illinois Court of Appeals, in a unanimous
decision, overturned a US$500,000 verdict that was entered against
GST LLC in 2008, granting a new trial.
EnPro Industries, Inc., at June 30, 2010, had US$190.1 million of
insurance coverage and trust assets that the Company said it
believes is available to cover current and future asbestos claims
against Garlock Sealing Technologies LLC (GST LLC) and certain
expense payments.
In addition, at June 4, 2010, the Company had classified US$4.2
million of otherwise available insurance as insolvent. Of the
US$190.1 million of collectible insurance coverage and trust
assets, the Company considers US$186.7 million (98%) to be of high
quality because (a) the insurance policies are written or
guaranteed by U.S.-based carriers whose credit rating by S&P is
investment grade (BBB) or better, and whose AM Best rating is
excellent (A-) or better, or (b) the assets are in the form of
cash or liquid investments held in insurance trusts resulting from
commutation agreements.
The Company considers US$3.4 million (2%) to be of moderate
quality because the insurance policies are written with various
London market carriers.
Of the US$190.1 million, US$154 million is allocated to claims
that have been paid by GST LLC and submitted to insurance
companies for reimbursement and the remainder is allocated to
pending and estimated future claims, subject to potential
competing claims of other covered subsidiaries and their
assignees.
Entrx Corporation's long-term reserve for asbestos liability
claims was US$41 million as of June 30, 2010, compared with US$44
million as of Dec. 31, 2009, according to the Company's quarterly
report filed on Aug. 11, 2010 with the Securities and Exchange
The Company's current reserve for asbestos liability claims was
US$7 million as of June 30, 2010, compared with US$8 million as of
Minneapolis-based Entrx Corporation provides insulation
installation and removal services, including asbestos abatement
services, primarily on the West Coast. The Company also enters
into contracts to repair and maintain existing insulation systems.
Entrx Corporation faced 215 pending asbestos cases as of June 30,
2010, compared with 239 pending cases as of Dec. 31, 2009,
according to the Company's quarterly report filed on Aug. 11, 2010
with the Securities and Exchange Commission.
Prior to 1975, the Company was engaged in the sale and
installation of asbestos-related insulation materials, which has
resulted in numerous claims of personal injury allegedly related
to asbestos exposure. Some of these claims are now being brought
by the children and close relatives of persons who have died,
allegedly as a result of the direct or indirect exposure to
asbestos.
The numbers of asbestos-related cases, which have been initiated
naming the Company (primarily its subsidiary, Metalclad Insulation
Corporation) as a defendant, have fluctuated from 199 in 2005, to
232 in 2006, to 163 in 2007, to 187 in 2008, and to 188 in 2009.
There were 65 new claims made in the first six months of 2010,
compared to 112 in the first six months of 2009.
During the six months ended June 30, 2010, the Company recorded 59
defense judgments and dismissals, 30 plaintiff judgments and
settled cases, and 89 total resolved cases. Total indemnity
payments were US$2,887,000. The average indemnity paid on
plaintiff judgments and settled cases were US$96,233 and the
average indemnity paid on all resolved cases was US$32,438.
During the year ended Dec. 31, 2009, the Company recorded 168
settled cases, and 220 total resolved cases. Total indemnity
plaintiff judgments and settled cases were US$102,788 and the
Entrx Corporation has determined that the minimum probable
insurance coverage available to satisfy asbestos-related injury
claims exceeds its estimated future liability for such claims of
US$48 million as of June 30, 2010 and US$52 million as of Dec. 31,
Accordingly, the Company has included US$48 million insurance
coverage receivable as of June 30, 2010 and US$52 million as of
Dec. 31, 2009 as an asset on its balance sheets. Several
affiliated insurance companies have brought a declaratory relief
action against the Company's subsidiary, Metalclad Insulation
Corporation, as well as a number of other insurers, to resolve
certain coverage issues.
Entrx Corporation's subsidiary, Metalclad Insulation Corporation,
is still involved in asbestos insurance coverage litigation filed
by ACE Property & Casualty Company, Central National Insurance
Company of Omaha, and Industrial Underwriters Insurance Company.
On Feb. 23, 2005 ACE, Central National, and Industrial
Underwriters, which are all related entities, filed a declaratory
relief lawsuit (ACE Lawsuit) against Metalclad and a number of
Metalclad's other liability insurers, in the Superior Court of the
State of California, County of Los Angeles.
ACE, Central National and Industrial issued umbrella and excess
policies to Metalclad, which has sought and obtained from the
plaintiffs both defense and indemnity under these policies for the
asbestos lawsuits brought against Metalclad during the last four
to five years.
The ACE Lawsuit seeks declarations regarding a variety of coverage
issues, but is centrally focused on issues involving whether
historical and currently pending asbestos lawsuits brought against
Metalclad are subject to either an "aggregate" limits of liability
or separate "per occurrence" limits of liability.
The ACE Lawsuit also seeks to determine the effect of a June 2004
settlement agreement between the Company and Allstate Insurance
Company on the insurance obligations of various other insurers of
Metalclad, and the effect of the "asbestos exclusion" in the
Allstate policy.
Under the settlement agreement, the Company received US$2,500,000
from Allstate in consideration of releasing Allstate from a
potential liability under a US$5,000,000 limits insurance policy.
The ACE Lawsuit may result in the Company incurring costs in
connection with obligations the Company may have to indemnify
Allstate under that settlement agreement.
Allstate, in a cross-complaint filed against Metalclad in October,
2005, asked the court to determine the Company's obligation to
assume and pay for the defense of Allstate in the ACE Lawsuit
under the Company's indemnification obligations in the settlement
If Allstate is required to provide indemnity for the Company's
asbestos-related lawsuits, it is likely that the Company would
have to indemnify Allstate for asbestos-related claims that it
defends up to US$2,500,000 in the aggregate.
If Allstate is not required to provide indemnity, the Company
would have no liability to Allstate. The Company has accrued
US$375,000 as a potential loss in connection with the Allstate
matter.
IntriCon Corporation is a defendant along with a number of other
parties in about 122 asbestos lawsuits as of June 30, 2010, (about
122 lawsuits as of Dec. 31, 2009).
The suits allege that plaintiffs have or may have contracted
asbestos-related diseases as a result of exposure to asbestos
products or equipment containing asbestos sold by one or more
named defendants.
Certain insurance carriers have informed the Company that the
primary policies for the period Aug. 1, 1970-1973, have been
exhausted and that the carriers will no longer provide a defense
under those policies.
The Company has requested that the carriers substantiate this
Arden Hills, Minn.-based IntriCon Corporation is an international
firm engaged in designing, developing, engineering and
manufacturing body-worn devices.
VWR Funding, Inc. is involved in various legal and regulatory
cases, claims, assessments and inquiries, which include being
named from time to time as a defendant in cases as a result of its
distribution of laboratory supplies, including litigation
resulting from the alleged prior distribution of products
containing asbestos by certain of its predecessors or acquired
companies.
No other asbestos-related matters were disclosed in the Company's
quarterly report filed on Aug. 12, 2010 with the Securities and
West Chester, Pa.-based VWR Funding, Inc. distribute laboratory
supplies, including chemicals, glassware, equipment, instruments,
protective clothing, production supplies and other assorted
laboratory products, primarily in North America and Europe.
Katy Industries, Inc. is still a defendant in 11 asbestos-related
lawsuits filed in state court in Alabama by a total of about 325
individual plaintiffs, according to the Company's quarterly report
filed on Aug. 12, 2010 with the Securities and Exchange
There are over 100 defendants named in each case. In all 11
cases, the Plaintiffs claim that they were exposed to asbestos in
the course of their employment at a former U.S. Steel plant in
Alabama and, as a result, contracted mesothelioma, asbestosis,
lung cancer or other illness.
They claim that while in the plant they were exposed to asbestos
in products which were manufactured by each defendant. In nine of
the cases, Plaintiffs also assert wrongful death claims.
Bridgeton, Mo.-based Katy Industries, Inc. is a manufacturer,
importer and distributor of commercial cleaning and storage
products. Its commercial cleaning products are sold to
janitorial/sanitary and foodservice distributors that supply end
users like restaurants, hotels, healthcare facilities and schools.
Sterling Fluid Systems (USA) has tendered about 2,800 asbestos
cases pending in Michigan, New Jersey, New York, Illinois, Nevada,
Mississippi, Wyoming, Louisiana, Georgia, Massachusetts, Missouri,
Kentucky, California and Canada to Katy Industries, Inc. for
defense and indemnification.
With respect to one case, Sterling has demanded that the Company
indemnify it for a US$200,000 settlement. Sterling bases its
tender of the complaints on the provisions contained in a 1993
Purchase Agreement between the parties whereby Sterling purchased
the LaBour Pump business and other assets from the Company.
Sterling has not filed a lawsuit against the Company in connection
with these matters.
The tendered complaints all purport to state claims against
Sterling and its subsidiaries. The Company and its current
subsidiaries are not named as defendants. The plaintiffs in the
cases also allege that they were exposed to asbestos and products
containing asbestos in the course of their employment.
Each complaint names as defendants many manufacturers of products
containing asbestos, apparently because plaintiffs came into
contact with a variety of different products in the course of
their employment. Plaintiffs claim that LaBour Pump Company, a
former division of an inactive subsidiary of the Company, and/or
Sterling may have manufactured some of those products.
With respect to many of the tendered complaints, including the one
settled by Sterling for US$200,000, the Company has taken the
position that Sterling has waived its right to indemnity by
failing to timely request it as required under the 1993 Purchase
With respect to the balance of the tendered complaints, the
Company has elected not to assume the defense of Sterling in these
Katy Industries, Inc. says that, LaBour Pump Company, a former
division of an inactive subsidiary of the Company, faced about 85
active asbestos cases as of July 2, 2010.
LaBour Pump Company has been named as a defendant in about 400 of
the New Jersey asbestos cases tendered by Sterling Fluid Systems
(USA). The Company has elected to defend these cases, the
majority of which have been dismissed or settled for nominal sums.
James Hardie Industries SE recorded asbestos adjustments of
US$63.1 million during the first quarter of fiscal year 2011,
according to a Company press release dated Aug. 12, 2010.
The net operating result for the first quarter including asbestos,
ASIC expenses and tax adjustments was a profit of US$104.9
million, compared to a loss of US$77.9 million for the
corresponding quarter of the prior year.
The current quarter's result includes a favorable asbestos
adjustment of US$63.1 million, which is attributable to the
depreciation of the Australian dollar against the U.S. dollar.
Dublin-based James Hardie Industries SE uses cellulose-reinforced
fiber cement to create products for residential and commercial
construction, including siding (Hardiplank), external cladding,
walls, fencing, and roofing. The Company also makes fiber-
reinforced concrete (FRC) pipe through its Hardie Pipe business.
American Biltrite Inc.'s long-term asbestos-related liabilities
were US$17,700,000 as of both June 30, 2010 and Dec. 31, 2009,
The Company's long-term insurance for asbestos-related liabilities
was US$17,646,000 as of both June 30, 2010 and Dec. 31, 2009.
Wellesley Hills, Mass.-based American Biltrite Inc.'s tape
division manufactures adhesive-coated, pressure-sensitive tapes
and films used to protect materials during handling and storage,
as well as for applications in the heating, ventilation, and air
conditioning, automotive, and electrical industries.
American Biltrite Inc. is a co-defendant with many other
manufacturers and distributors of asbestos containing products in
about 1,213 pending claims involving about 1,759 individuals as of
June 30, 2010, according to the Company's quarterly report filed
on Aug. 13, 2010 with the Securities and Exchange Commission.
The Company was a co-defendant with many other manufacturers and
distributors of asbestos containing products in about 1,215
pending claims involving about 1,770 individuals as of March 31,
2010. (Class Action Reporter, May 28, 2010)
These claims relate to products of the Company's former Tile
Division, which it contributed to Congoleum Corporation in 1993.
The claimants allege personal injury or death from exposure to
asbestos or asbestos-containing products.
During the six months ended June 30, 2010, the Company recorded
124 new claims, 11 settlements, and 93 dismissals. During the
year ended Dec. 31, 2009, the Company recorded 240 new claims, 25
settlements, and 291 dismissals.
The Company has multiple excess layers of insurance coverage for
asbestos claims. The total indemnity costs incurred to settle
claims were US$634,000 during the six months ended June 30, 2010
and US$5.7 million during the year ended Dec. 31, 2009, all of
which were paid by the Company's first-layer excess umbrella
insurance carriers, as were the related defense costs.
In addition to coverage available under the first-layer excess
umbrella coverage, the Company has additional excess liability
insurance policies that should provide further coverage if and
when limits of certain policies within the Umbrella Coverage
exhaust.
American Biltrite Inc. recorded current asbestos-related
liabilities of US$44,727,000 as of June 30, 2010 (US$48,458,000)
for its former Congoleum Corporation subsidiary, according to the
Company's quarterly report filed on Aug. 13, 2010 with the
Securities and Exchange Commission.
Congoleum's asbestos-related expenses were US$7,855,000 during the
six months ended June 30, 2010, compared with US$4,200,000 during
the six months ended June 30, 2009.
On Dec. 31, 2003, Congoleum filed a voluntary petition with the
Bankruptcy Court seeking relief under Chapter 11 of the Bankruptcy
Code as a means to resolve claims asserted against it related to
the use of asbestos in its products decades ago. Congoleum's plan
of reorganization was confirmed by the District Court on June 7,
2010 and became effective July 1, 2010.
Although a notice of appeal has been filed with the U.S. Court of
Appeals for the Third Circuit, the Plan has been substantially
consummated, and Congoleum has moved to dismiss such appeal as
equitably moot and on other grounds.
By operation of the Plan, all shares of Congoleum's Class A and
Class B common stock outstanding immediately prior to the Plan
becoming effective were cancelled effective as of July 1, 2010,
including those shares owned by the Company.
As a result, after June 30, 2010, the Company does not own any
equity interest in reorganized Congoleum and Congoleum is no
longer a subsidiary of the Company. The former holders of the
cancelled shares of Congoleum common stock, including the Company,
did not receive any compensation on account of their cancelled
shares.
Kaanapali Land, LLC, as successor by merger to other entities, and
subsidiary D/C Distribution Corporation are still defendants in
personal injury actions allegedly based on exposure to asbestos.
While there have been only a few such cases that name the Company,
there are a substantial number of cases that are pending against
D/C on the U.S. mainland (primarily in California).
Cases against the Company are allegedly based on its prior
business operations in Hawaii and cases against D/C are allegedly
based on sale of asbestos-containing products by D/C's prior
distribution business operations primarily in California.
On Feb. 15, 2005, D/C was served with a lawsuit entitled American
& Foreign Insurance Company v. D/C Distribution and Amfac
Corporation, Case No. 04433669 filed in the Superior Court of the
State of California for the County of San Francisco, Central
Justice Center. No other purported party was served.
In the eight-count complaint for declaratory relief, reimbursement
and recoupment of unspecified amounts, costs and for such other
relief as the court might grant, plaintiff alleged that it is an
insurance company to whom D/C tendered for defense and indemnity
various personal injury lawsuits allegedly based on exposure to
asbestos containing products.
Plaintiff alleged that because none of the parties have been able
to produce a copy of the policy or policies in question, a
judicial determination of the material terms of the missing policy
or policies is needed.
Plaintiff sought a declaration: of the material terms, rights, and
obligations of the parties under the terms of the policy or
policies; that the policies were exhausted; that plaintiff is not
obligated to reimburse D/C for its attorneys' fees in that the
amounts of attorneys' fees incurred by D/C have been incurred
unreasonably; that plaintiff was entitled to recoupment and
reimbursement of some or all of the amounts it has paid for
defense and/or indemnity; and that D/C breached its obligation of
cooperation with plaintiff.
D/C filed an answer and an amended cross-claim.
In order to fund such action and its other ongoing obligations
while such lawsuit continued, D/C entered into a Loan Agreement
and Security Agreement with the Company, in August 2006, whereby
the Company provided certain advances against a promissory note
delivered by D/C in return for a security interest in any D/C
insurance policy at issue in this lawsuit. In June 2007, the
parties settled this lawsuit with payment by plaintiffs in the
amount of US$1,618,000.
Because D/C was substantially without assets and was unable to
obtain additional sources of capital to satisfy its liabilities,
D/C filed with the U.S. Bankruptcy Court, Northern District of
Illinois, its voluntary petition for liquidation under Chapter 7
of Title 11, U.S. States Bankruptcy Code during July 2007, Case
No. 07-12776.
The deadline for filing proofs of claim against D/C with the
bankruptcy court passed in October 2008. Prior to the deadline,
the Company filed claims that aggregated about US$26,800, 000,
relating to both secured and unsecured intercompany debts owed by
D/C to the Company. In addition, a personal injury law firm based
in San Francisco that represents clients with asbestos-related
claims, filed proofs of claim on behalf of about 700 claimants.
Chicago-based Kaanapali Land, LLC's continuing operations are in
two business segments: Agriculture and Property. The Agriculture
segment grows seed corn and soybeans under contract and is engaged
in farming and milling operations relating to the coffee orchards
on behalf of the applicable land owners. The Property segment
primarily develops land for sale and negotiates bulk sales of
undeveloped land.
Hexion Specialty Chemicals, Inc. is involved in actions that
allege harm caused by products the Company has allegedly made or
used, containing silica, vinyl chloride monomer and asbestos.
Plaintiffs' attorneys are also focusing on alleged harm caused by
other products the Company has made or used, including silica-
containing resin coated sands and discontinued products, some of
which may have contained some asbestos fines.
Columbus, Ohio-based Hexion Specialty Chemicals, Inc. produces
thermosetting resins, or thermosets, and produces adhesive and
structural resins and coatings.
Imperial Industries, Inc.'s subsidiary, Premix-Marbletite
Manufacturing Co., is a defendant in 17 claims (10 of which
include the Company as a defendant), which allege bodily injury
due to exposure to asbestos contained in products manufactured in
excess of 30 years ago.
Premix was a defendant in 13 claims (seven of which included the
Company as a defendant), which alleged bodily injury due to
exposure to asbestos contained in products manufactured in excess
of 30 years ago. (Class Action Reporter, May 28, 2010)
The Company has identified at least 10 of its prior insurance
carriers including both primary and excess/umbrella liability
carriers that have provided liability coverage to the Company,
including potential coverage for alleged injuries relating to
asbestos exposure. Several of these insurance carriers are
providing a defense to Premix and the Company under a reservation
of rights in all of these asbestos cases.
Certain of these underlying insurance carriers have denied
coverage to Premix and the Company on the basis that certain
exclusions preclude coverage and/or that their policies have been
In June 2009, one such carrier filed suit in Miami-Dade Circuit
Court against Premix and the Company, wherein the carrier seeks a
declaration from the Court that its insurance policies do not
provide coverage for the asbestos claims against Premix and the
Company. The carrier also asserts a claim for reimbursement of
defense costs and indemnity payments that it voluntarily made on
the Company's behalf in prior asbestos claims.
Pompano Beach, Fla.-based Imperial Industries, Inc. manufactures
and distributes building materials to building materials dealers
and others located primarily in Florida, and to a lesser extent,
other states in the Southeastern United States.
Sears Holdings Corporation is still subject to environmental and
asbestos exposure allegations and other consumer-based claims,
each of which may seek compensatory, punitive or treble damage
claims (potentially in large amounts), as well as other types of
Hoffman Estates, Ill.-based Sears Holdings Corporation is the
parent company of Kmart Holding Corporation and Sears, Roebuck and
Co. The Company is a broadline retailer with 2,227 full-line and
1,322 specialty retail stores in the United States, operating
through Kmart and Sears, and 416 full-line and specialty retail
stores in Canada operating through Sears Canada Inc., a 90%-owned
Briggs & Stratton Corporation is subject to various unresolved
legal actions that typically relate to product liability
(including asbestos-related liability), patent and trademark
matters, and disputes with customers, suppliers, distributors and
dealers, competitors and employees.
The Company is generally self-insured for claims up to US$2
million per claim. Accordingly, a reserve is maintained for the
estimated costs of such claims.
The reserve for product and general liability claims (which
includes asbestos-related liabilities) was US$9.3 million on
June 27, 2010 and US$7.1 million on June 28, 2009.
Wauwatosa, Wis.-based Briggs & Stratton Corporation produces air
cooled gasoline engines for outdoor power equipment. The Company
designs, manufactures, markets and services these products for
original equipment manufacturers (OEMs) worldwide.
There were a total of 74 asbestos cases pending against Met-Pro
Corporation (with a majority of those cases pending in Mississippi
and New York) as of Aug. 26, 2010, as compared with 106 cases that
were pending as of Jan. 31, 2010.
Beginning in 2002, the Company began to be named in asbestos-
related lawsuits filed against a large number of industrial
companies including, in particular, those in the pump and fluid
handling industries. The Company has been dismissed from or
settled a large number of these cases.
The sum total of all payments through Aug. 26, 2010 to settle
these cases involving asbestos-related claims was US$612,500, all
of which have been paid by the Company's insurers including legal
expenses, except for corporate counsel expenses, with an average
cost per settled claim, excluding legal fees, of about US$34,000.
For the Feb. 1, 2010 through Aug. 26, 2010 period, about 21 new
cases were filed against the Company, and the Company was
dismissed (some of which were without prejudice) from 52 cases and
settled one case.
Most of the pending cases have not advanced beyond the early
stages of discovery, although a number of cases are on schedules
leading to, or are scheduled for trial.
Harleysville, Pa.-based Met-Pro Corporation manufactures and sells
product recovery and pollution control equipment for purification
of air and liquids, fluid handling equipment for corrosive,
abrasive and high temperature liquids, and filtration and
purification products.
Deere & Company continues to be subject to unresolved legal
actions, which include asbestos-related liability actions.
Moline, Ill.-based Deere & Company makes farm equipment and
produces construction, forestry, industrial, and lawn care
equipment. The Company makes 60% of its sales in North America.
Target Corporation continues to be the subject of an ongoing U.S.
Environmental Protection Agency asbestos-related investigation for
alleged violations of the Clean Air Act.
In March 2009, the EPA issued a Finding of Violation related to
alleged violations of the CAA, specifically the National Emission
Standards for Hazardous Air Pollutants (NESHAP) promulgated by the
EPA for asbestos. The FOV pertains to the remodeling of 36 Target
stores that occurred between Jan. 1, 2003 and Oct. 28, 2007.
The EPA FOV process is ongoing and no specific relief has been
sought to date by the EPA.
The Company anticipates that any resolution of this matter will be
in the form of monetary penalties that are likely to exceed
Minneapolis-based Target Corporation is a discount chain that
operates about 1,745 Target and SuperTarget stores in 49 states,
as well as an online business called Target.com.
Harris Corporation, from time to time, is subject to disputes over
the sale or use of products containing asbestos or other
restricted materials.
annual report filed on Aug. 30, 2010 with the Securities and
Melbourne, Fla.-based Harris Corporation is an international
communications and information technology company serving
government and commercial markets in more than 150 countries. It
makes communications products, systems and services for global
markets, including RF communications, government communications
and broadcast communications.
Magnetek, Inc. has been named, along with multiple other
defendants, in asbestos-related lawsuits associated with business
operations the Company previously acquired, but which are no
longer owned.
During the Company's ownership, none of the businesses produced or
sold asbestos-containing products. With respect to these claims,
the Company is either contractually indemnified against liability
for asbestos-related claims or believes that it has no liability
for such claims.
Menomonee Falls, Wis.-based Magnetek, Inc. provides digital power
control systems that are used to control motion and power
primarily in material handling, elevator, and energy delivery
Joy Global Inc. and its subsidiaries are involved in various
unresolved legal matters, the most prevalent of which relate to
product liability (including over 1,000 asbestos and silica-
related cases), employment, and commercial matters.
quarterly report filed on Sept. 3, 2010 with the Securities and
Milwaukee-based Joy Global Inc. manufactures and markets original
equipment and aftermarket parts and services for both underground
and surface mining and certain industrial applications. The
Company operates in two business segments: underground mining
machinery (Joy Mining Machinery) and surface mining equipment (P&H
Mining Equipment).
J.C. Penney Company, Inc., as of July 31, 2010, estimated its
total potential environmental and asbestos liabilities to range
from US$53 million to US$64 million and recorded its best estimate
of US$56 million in other liabilities in the Consolidated Balance
Sheet as of that date.
As of May 1, 2010, the Company estimated its total potential
asbestos and environmental liabilities to range from US$49 million
to US$60 million and recorded its best estimate of US$50 million
in other liabilities in the Consolidated Balance Sheet as of that
date. (Class Action Reporter, June 18, 2010)
This estimate covered potential liabilities primarily related to
underground storage tanks, remediation of environmental conditions
involving the Company's former Eckerd drugstore locations and
asbestos removal in connection with approved plans to renovate or
dispose of the Company's facilities.
Plano, Tex.-based J.C. Penney Company, Inc. is a holding company
for department store operator J. C. Penney Corporation, one of the
largest department store, catalog, and e-commerce retailers in the
United States with more than 1,100 JCPenney department stores in
49 states and Puerto Rico.
Along with other vehicle manufacturers, Navistar International
Corporation has been subject to an increase in the number of
asbestos-related claims in recent years.
In general, these claims relate to illnesses alleged to have
resulted from asbestos exposure from component parts found in
older vehicles, although some cases relate to the alleged presence
of asbestos in the Company's facilities.
In these claims, the Company is not the sole defendant, and the
claims name as defendants numerous manufacturers and suppliers of
a wide variety of products allegedly containing asbestos.
Warrenville, Ill.-based Navistar International Corporation is a
holding company whose principal operating subsidiaries are
Navistar, Inc. and Navistar Financial Corporation. The Company
operates in four principal industry segments: Truck, Engine,
Parts, and Financial Services.
Judge Stuart M. Bernstein, on Sept. 8, 2010, refused to confirm
Pfizer Inc.'s bid to shake off liability for an estimated US$900
million worth of asbestos damages through a Chapter 11 plan for
its Quigley unit, Dow Jones Daily Bankruptcy Review reports.
Judge Bernstein refused to confirm Quigley's Chapter 11 plan on
the grounds it would run out of money after five years of paying
off claims for personal injuries from the toxic substance, and
because it was unfair to some of the most seriously injured
asbestos claimants.
Pfizer, the funder and chief beneficiary of Quigley's Chapter 11
plan, engaged in "bad faith" vote manipulation, Judge Bernstein
found, and should not enjoy the benefit of a confirmation ruling
that would shield it from damage claims related to Quigley
Pfizer spokesman Christopher Loder said on Sept. 8, 2010 that the
Company is still reviewing Judge Bernstein's decision to reject
confirmation for the Quigley unit.
A maker of refractory products for iron, steel, power generation,
petroleum and other industries, Quigley was acquired by Pfizer in
1968. By 2003, it was out of operation, facing US$1.2 billion
worth of claims for asbestos damages, with more expected in future
decades, as the lung injuries characteristic of asbestos exposure
began to show up.
In 2004, Pfizer put the Quigley unit under Chapter 11 protection,
part of what Judge Bernstein found was a bad faith scheme to
"divide and conquer" the law firms that represent people with
asbestos injuries.
On Sept. 2, 2010, the families of Betty Laverne, Jimmie Ray
Sonnier, William Harold Tinney and Perkins Young filed asbestos
lawsuits against E.I. Du Pont de Nemours and 77 other companies in
Jefferson County District Court, Tex., The Southeast Texas Record
According to the complaint, the plaintiffs worked as craftsmen and
construction tradesmen at the refineries, chemical plants and
other industrial facilities in Jefferson, Orange and Harris
counties.
While working for the defendants, the plaintiffs were exposed to
asbestos through thermal and electrical insulation products,
flooring materials, textiles, gaskets, wicking and packing,
mastics, cement products, coatings and other uses of asbestos.
The plaintiffs suffered "serious and debilitating injuries" as a
result of the exposure, the suit claims.
The 78 defendants are divided into "premises defendants," which
are the refineries, chemical plants and shipyards; "product
defendants" that make the asbestos containing products; and
"distributor defendants" that sold or supplied the products.
Chris Portner, Esq., of Reaud, Morgan & Quinn LLP in Beaumont,
Tex., is representing the plaintiffs. Case No. E187-927 has been
assigned to Judge Donald Floyd, 172nd District Court.
Removing asbestos from the old Blacksburg Middle School in
Blacksburg, Va., and its adjacent buildings could cost as much as
US$400,000, according to a report released by Montgomery County,
The Roanoke Times reports.
If approved, Montgomery County economic development officials say
demolition of the old Blacksburg Middle School property could
begin by the end of 2010.
Vinton-based engineering firm Baratta & Associates Inc. reported
"sufficient asbestos" in the vacant middle school's floor tiles,
roof, laboratory countertops, plaster, window caulking, carpet
glue and glue that holds chalkboards to the walls.
Asbestos removal will cost about US$256,000, according to Baratta
& Associates' report. This figure includes removing the material
from the middle school building for US$220,000 and from an
adjacent building for US$36,000.
HDH Associates PC of Christiansburg designed the removal plans for
US$7,500. Having another company monitor the removal could cost
an additional US$24,000 to US$133,000, according to the report.
Philip Silkstone's widow, Barbara Silkstone, appeals for former
power station workers to come forward to help an investigation
into how Mr. Silkstone may have been exposed to asbestos, the
Yorkshire Evening Post reports.
Mr. Silkstone was diagnosed with mesothelioma in February 2007 and
died six months later at the age of 75. Mrs. Silkstone, from
Garforth, Leeds, England, has law firm Irwin Mitchell
investigating a claim on Mr. Silkstone's behalf.
One line of inquiry relates to several years in the 1960s and
1970s when Mr. Silkstone was a scaffolder at Drax power station.
Ben Mitchell, an industrial illness specialist at the Leeds office
of Irwin Mitchell, represents Mrs. Silkstone.
Mario Sanchez, a resident of Marco Island, Fla., claimed victory
in a case involving asbestos filed against the U.S. Environmental
Protection Agency, naplesnews.com reports.
Mr. Sanchez spent years seeking information regarding the handling
of toxic substances in Marco Island. He had little success until
he filed a complaint, representing himself, against the EPA last
Sept. 18, 2009. The complaint contended the EPA violated the
federal Freedom of Information Act by not providing documents
pertaining to an investigation of effluent pumped into waterways
and mishandled asbestos.
When Mr. Sanchez received the documentation that he sought, he
agreed to drop the case in early August 2010. The request was for
all EPA documentation related to Marco Island from 2005 through
July, 31, 2008.
Mr. Sanchez's complaint asserted that effluent containing hydrogen
sulfide, sulfuric acid and sediment was pumped untreated into
waterways, streets, swales and sidewalks. Also, according to the
document, hydrogen sulfide gas was released into the air. This
caused several residents and at least two city workers to seek
medical treatment, officials have since confirmed.
Initially, the EPA denied these allegations in its defense filed
with the U.S. District Court in Fort Myers. However, the EPA did
follow through on asbestos mishandling in March 2010, alleging
that the city and its contractor, Quality Enterprises, violated
six sections of the Clean Air Act as early as March 2005 until as
late as November 2008 while the city undertook road widening and
adding sewer lines to Collier Boulevard.
Mr. Sanchez and other residents of the time, including Godfrey
Davies, were providing evidence to the Florida Department of
Environmental Protection and the EPA to no avail.
Mr. Davies, who later moved to Kirklin, Ind., in 2008, provided
time-stamped video and other evidence indicating what he believed
to be violations of the Clean Air Act as well as violations of the
Clean Water Act.
The city and Quality Enterprises settled with the EPA in lieu of
formal enforcement for Clean Air Act violations. Fines as high as
US$37,500 per day were averted when Quality Enterprises agreed to
pay US$81,772 total in the June settlement agreement.
So far, nothing has come of the Clean Water Act investigations.
Nearly 1,000 pages of records were obtained since the Freedom of
Information Act filing and are posted to Mr. Sanchez's website,
marcoislandblog.blogspot.com. They indicated that several
environmental crimes, as first reported by Mr. Sanchez and other
residents, were substantiated.
DEP official Michael Tanski, in an e-mail dated Aug. 24, 2007, to
Alenda Johnson of the EPA, denied that any environmental
wrongdoing was taking place on Marco Island and wrote that the
residents were making up the allegations of Clean Water Act
The U.S. District Court, Eastern District of Pennsylvania, granted
MW Custom Papers, LLC's motion for summary judgment in a case
involving asbestos styled Alford McGuffie et al., Plaintiff v.
Mead Corp., et al., Defendant.
District Judge Eduardo C. Robreno entered judgment in Civil Action
No. 09-70095 on Aug. 13, 2010.
It was further ordered that MW Custom's motion to strike was
denied as moot.
Plaintiffs Alford McGuffie and Iris McGuffie commenced this action
for their exposure to asbestos or asbestos-containing products for
which the various defendants were allegedly liable. MW Custom,
the successor in interest to named defendant The Mead Corporation,
moved for summary judgment.
Plaintiffs filed this action alleging that Mr. McGuffie suffers
from mesothelioma, which was caused by exposure to asbestos or
asbestos-containing products during his employment at the Cement
Asbestos Products Company (CAPCO) facility in Ragland, Ala. He
was employed as a machinist at CAPCO from 1968-1982. Also, Mrs.
McGuffie alleged a loss of consortium due to Mr. McGuffie's
alleged exposure.
The U.S. District Court, Southern District of Ohio, Eastern
Division, overruled plaintiffs' objections in a case involving
asbestos filed against the Ohio Department of Rehabilitation and
Correction.
The case is styled Gerald Smith, et al., Plaintiffs v. Ohio
Department of Rehabilitation and Correction, et al., Defendants.
District Judge John D. Holschuh entered judgment in Case No. 2:08-
cv-15 on Aug. 12, 2010.
Plaintiffs, inmates at Chilicothe Correctional Institution (CCI),
brought this class action lawsuit against Defendants, seeking
declaratory and injunctive relief as well as nominal and punitive
damages for exposure to unabated asbestos throughout CCI. This
Court has not yet certified the class. This matter is currently
before the Court on several objections filed by putative class
members, inmates at CCI.
Plaintiffs' First Amended Complaint originally sought class
certification. Thereafter, the original motion for class
certification, filed on April 15, 2009, sought certification of a
Rule 23(b)(2) class.
After the parties engaged in settlement negotiations for nearly
one year following the filing of Plaintiffs' motion for class
certification, the parties jointly filed a motion to certify a
class for settlement purposes. In that joint motion, the parties
still sought certification of a Rule 23(b)(2) class but sought to
withdraw the original motion for class certification, indicating
that they had agreed to broad terms of settlement, terms which no
longer included the nominal and punitive damages sought in the
original motion for class certification.
The joint motion further asked the Court to stay proceedings on
all pending and future motions for leave to intervene, pending
resolution of the motion to certify. Finally, the parties asked
that the statute of limitations for all putative members of the
plaintiff class be tolled pending resolution of the joint motion
to certify the settlement class. On March 31, 2010, the Court
granted the above requested relief, ordering the original motion
to certify withdrawn.
The Court overruled the inmates' objections. The joint motion to
certify a settlement class remains pending before this Court while
the parties continue to negotiate the final terms of the
settlement agreement and remediation plan.
The U.S. District Court, Eastern District of Pennsylvania, ordered
that a Magistrate Judges' Report and Recommendation to be adopted
and Crane Co.'s Motion for Summary Judgment (in Violet Curry's
asbestos case) filed on Jan. 22, 2009 was denied.
The case is styled Violet Curry, as the Personal Representative of
the Estate of Michael Curry, Deceased, Plaintiff v. American
Standard, et al., Defendants.
Before the Court is the report and recommendation (R & R) issued
by Magistrate Judge David R. Strawbridge, and joined by Magistrate
Judges Elizabeth T. Hey and Judge M. Faith Angell (the Panel), and
defendant Crane Co.'s objections thereto. The Panel recommended
that the Court deny Crane's motion for summary judgment.
Michael Curry was diagnosed with mesothelioma in July 2008, and
filed this personal injury action in the Supreme Court of the
State of New York on Oct. 8, 2008, alleging exposure to asbestos
while employed on the USS Kitty Hawk from 1963-1965. The matter
was removed to the U.S. District Court for the Southern District
of New York and subsequently transferred to the Eastern District
of Pennsylvania as part of MDL 875 in April of 2009.
Mr. Curry passed away on Dec. 14, 2009, and Violet Curry was
substituted as the named representative of his estate.
Mr. Curry began serving aboard the Kitty Hawk as a "fireman
apprentice, boiler man striker" in January 1963. He was assigned
to the "four main machine room" ("MMR4") where his
responsibilities included standing watch, cleaning, taking
readings from certain machinery, performing basic repairs on
valves, and maintaining and operating pumps.
In January 1965, Mr. Curry became a boiler man third class and was
given the additional responsibility of training others to repair
Crane moved for summary judgment, arguing that Mrs. Curry failed
to establish that Crane products caused Mr. Curry's injuries. The
Panel issued a Report and Recommendation on June 21, 2010, denying
Crane's motion for summary judgment.
It was ordered that Crane Co.'s Objections to the Magistrate
Judges' Report and Recommendation were overruled.
USA. Gracele D. Canilao, Leah Felisilda, Rousel Elaine Fernandez,
Joy A. Agravante, Ronald Sy, Christopher Patalinghug, Frauline
Abangan and Peter A. Chapman, Editors.