"Hey, what does the contract say about choice of law?"
That's a question bond traders are asking now that they've figured out they may not get paid - much - by Greece. Interesting conversations on the topic are out there- OpinioJuris has the best post I've seen in terms of specific facts and links to real data.
Hopefully the Epicurean Dealmaker will weigh in with some words on the topic.
I'm headed out for a conference at Rutgers on "bad faith" litigation against insurers, so it seems a good time for a war story.
To begin with, as I was taught by others, bad faith is a misnomer. Instead, the issue is that too many insurers too often fail to act in good faith.
Now, here's the war story. In a past legal life as a trial lawyer for insureds, I confronted several not good faith arguments by QBE in cases involving condominium buildings hit by hurricanes. For example, QBE argued that windows in Florida condominium buildings were not part of the building. Really - they argued that - in lots of cases. Happily, in one case, I was able to take the issue to outcome. QBE lost (opinion here), and the trial judge's oral argument comments made it plain he too thought the argument lacked good faith. QBE then wrote a large check.
AmLaw today includes an interesting article by Michael Goldhaber on one lawyer's view of "political litigation." Reading the examples and strategies brings to mind the Chevron case, and the posturing of the repeat player constituencies in less sensational mass tort litigation.
Does this story sound familiar? Tort claiming, constitutional law, and demands for tort reform are now playing out in Argentina. Under the heading "Compensation Culture," LATAM Insurance Review includes an interesting article on the rapidly increasing rates of litigation in Argentina. The article also ncludes numerous comments from a representative of Australia's QBE, including the thought that perhaps there is a need for additional intelligence in underwriting now that damages are not capped. Others comment about a need for so-called "tort reform." Set out below are key excerpts from the article:
"As well as the aforementioned change post-2004 which allowed employees to take legal action against the employer, in addition to the ART, in a civil court, in 2009 – following what Gonzalo Paz Saguier, legal manager at QBE Argentina, describes as “almost seven years of progress and setbacks due to lack of consensus among different sectors of the system” – the Argentina government issued Degree 1694/2009 which, among other things, eliminated the limits of sums insured (previously set at AR$180,000, or around $40,000) while establishing a minimum compensation limit of the same amount. This, according to Towers Watson’s Guaita, “led to a premium increase of 50%”.
And while this law has been in place for over two years, it has not been without its problems. “The courts have repeatedly ruled on the unconstitutionality of several pillars of the law, opening the way for the employer’s civil liability, and in some cases, also for insurers, leading to sentences for amounts in excess of coverage,” says QBE’s Saguier. “This has been fought by an active policy of negotiation in those cases that can be traded, and litigating hard in all those other cases that do not require it. It has also led insurers to increase the intelligence in underwriting risks.”
According to Marval, O’Farrell & Mairal’s Kelly, such reform would likely result in an increase in the costs and consequent re-adjustment of premiums as necessary for insurance companies in the region.
“However, given the current scenario, involving many interests implicated that have materially delayed the negotiations between governments, employers’ associations, unions and ARTs, even if the current draft of the reform was sent to Congress in March, a hard debate is expected,” he adds.
Indeed, it seems there is much more discussion to be had before any final decision is made. “There are still many different points of view within the administration and many different projects and ideas with regard to this law ongoing within the administration,” says Carlos Marin Rodriguez, a partner at Bullo Tassi Estebenet Lipera Torassa Abogados. “However, most consider the current system to be a more progressive, open system and the proposed changes to be a step backwards.”
But should this reform – a draft of which is expected to be sent to Congress next March – come to pass, it will be only the latest in a number of changes that have taken place in the workers’ compensation market in the region."
Corporate Counsel has a story on David Bernick resigning his position as inside counsel at Phillip Morris. The article speculates on money issues. Losing Mr. Bernick as inside counsel may or may not mean losing him as counsel - he could return to Kirkland or create his own firm or ....
One has to think this is not good for big tobacco - Mr. Bernick is a very creative lawyer and leader in mass tort litigation, as described when he joined Phillip Morris.
The trial judge has granted a government motion for summary judgment against BP and Anadarko as to statutory fines, leaving them liable for statutory fines.
Insurers frequently complain loudly about "trial lawyers" and too much litigation. But they like litigation when they are plaintiffs. Consider, for example, MassMutual's evident pleasure in successfully moving forward with nine lawsuits targeting uber banks for securities fraud. The quoted text is from an AmLaw article by Ross Todd on the substance of the ruling denying motions to dismiss:
"The MassMutual suits target a huge swath of Wall Street, including units of Credit Suisse, HSBC, JPMorgan Chase, Royal Bank of Scotland, Deutsche Bank AG, UBS, WaMu Inc., and Goldman Sachs, seeking damages over billions in alleged losses from mortgage-backed securities gone bad. (See our prior coverage of the MassMutual suits here, here, and here.) All of the MassMutual complaints assert claims under the Massachusetts Uniform Securities Act, which allows plaintiffs to seek to rescind their purchases of securities or recover damages without a showing of fraud.
Quinn Emanuel's Philippe Selendy told us that MassMutual is "obviously very pleased" with Judge Ponsor's decision. "MassMutual looks forward to trials in all nine cases in which Wall Street is held accountable for misrepresentations to investors in the Commonwealth of Massachusetts," he said.
Courtesy of this post on the Legal Blog Watch, which reposted work by Bloomberg Law ...
"Selecting the '10 Greatest Legal Movie Lines'
Last week, Bloomberg Law put together an interesting series of video clips in an effort to collect the "10 funniest, most moving, or most inspiring legal movie lines." The full video ("The 10 Greatest Legal Movie Lines") ... is a lot of fun to watch."
Like medicine and other industries, the litigation industry increasingly is an industry of specialization which includes firms, business models and adverting focused in ways that did not exist a decade ago. Today, for example, some law firms target specific industries, specific manufacturing plants, and/or specific defendants. Set out below is a new example of targeting Air Force veterans as potential plaintiffs.
Clapper Patti Schweizer & Mason is a premier advocate for current members and veterans of the Air Force diagnosed with mesothelioma as a result of exposure to asbestos during times of service. The primary cause of mesothelioma, a rare and aggressive form of cancer that affects the lining of the internal organs, is exposure to asbestos – and, according to the Center for Disease Control, over 30% of those diagnosed with mesothelioma are Veterans of the U.S. Military.
(PRWEB) February 21, 2012
Clapper Patti Schweizer & Mason (CPSM) have a newly updated section of their website specifically for U.S. Air Force veterans diagnosed with mesothelioma and other military veterans who have been exposed to asbestos and now live with the threat of developing this incurable cancer. Due to a long latency period between time of exposure and development of symptoms of mesothelioma, this cancer is often not diagnosed until it has reached advanced stages.
CPSM now offers comprehensive information, particularly for those most at risk of exposure to asbestos due to their occupation (i.e. aircraft mechanic) and/or from living and eating quarters likely to have been constructed with asbestos materials.
Jack Clapper, founder of CPSM and veteran of the US Air Force Veteran himself, speaks to his dedication to fight for justice for airmen and women who were injured by asbestos. “I was a fighter pilot in the United States Air Force, and I’m accustomed to being able to fight for people when they need help. I am especially dedicated to helping Air Force mechanics as they run a higher risk of mesothelioma given that they worked in enclosed, tight spaces when repairing aircraft with asbestos components and to Air Force Veterans who constructed or repaired buildings on base where exposure to asbestos was unavoidable.”
CPSM has updated their website to offer the latest, most useful information for veterans from the Navy, Air Force, Marine Corps, Army and Coast Guard who are dealing with a diagnosis of mesothelioma. CPSM lawyers specialize in asbestos lawsuits and in representing former US Army and Air Force personnel.
In addition to the newly updated website, veterans diagnosed with mesothelioma are offered immediate free case evaluation with an experienced attorney. Brochures and other resources are also available to help veterans and their family members who may be coping with a new diagnosis of an asbestos related disease. After finding out the particulars to your case, the attorneys at CPSM can also suggest names of recommended mesothelioma treatment centers and oncologists closest to where you live.
The attorneys at CPSM have stood by thousands of military and Air Force veterans diagnosed with mesothelioma and supported their families, witnessing firsthand the heartbreak and challenges that this fatal disease causes. If you or a loved one has been diagnosed, call today to speak with one of our attorneys at 1-800-440-4262.
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For the original version on PRWeb visit: http://www.prweb.com/releases/prwebveterans/mesothelioma/prweb9205964.htm
The Deepwater trial is arriving next week. AmLaw has an excellent article focused on the lawyers and issues.
Imagine growing hamburgers. No cows. Just meat growing in a lab. Or a meat factory.
The vision is real. In fact, the first hamburger is growing now, and should be ready for cooking in the fall. A celebrity chef may be asked to cook it. The story is here on the science being developed by researchers in the Netherlands. They see the process as taking another 15-20 years to result in true hamburger "factories." The news was publicized in connection with the 2012 annual meeting of the American Association for the Advancement of Science, held this year in Vancouver.
The possibilities are interesting - but far from certain - when one considers world population growth, the risks of pesticides, and the resources involved in raising cattle.
Hat tip to Marginal Revolution for flagging the topic and articles.
This story from Malta Today is pasted below. The article appears to refer to both new lawsuits filed against the Manville Trust in bankruptcy court (see this post from last week) and additional lawsuits said to have been filed in district court in New York.
"The heirs of some 400 former dockyard workers have filed individual and class action lawsuits in the United States, seeking their right to compensation in damages for occupational exposures to asbestos products while working - among other places - on US warships.
Most of the workers have died of malignant mesothelioma caused by the direct and proximate result of occupational exposures to asbestos products while working on US warships while anchored at the then HM Drydocks, which later became the Malta Drydocks.
The cases were filed at the US Bankruptcy Court of New York against a number of companies which provided the asbestos materials for the US warships while in dock. The companies, which have since been declared bankrupt, are still liable for damages under US law.
But the heirs are now challenging the US courts to order a trust - set up to compensate those who became ill from asbestos exposure - to include them after it wrongly concluded that their exposure occurred off US soil.
Under the guidance of the General Workers' Union, families of deceased Drydocks workers have over the past years been put in contact with American lawyers who accepted the cases and are filing their suits for compensation under US law.
Last Tuesday, another two cases were filed at the Manhattan district court of New York by John Tanti of Siggiewi, a personal representative of the estate of Nicholas Borg, and another was filed by the heirs of the late Joseph Balzan of Sta Lucia.
Nicholas Borg passed away in November 2010. He died of asbestosis; his disease and death each being caused as the direct and proximate result of occupational exposures to asbestos products while working in - among other places - US warships docked at the then HM Dockyard in Malta.
Joseph Balzan died of malignant mesothelioma. His disease and death each being caused as the direct and proximate result of occupational exposures to asbestos products while working as a pipefitter, steamfitter and plumber at, among other places, US warships docked at the then HM Dockyard, Malta.
Their heirs have joined a case together with several other former dockyard workers from Britain and Greece who are seeking compensation for diseases and death due to asbestos exposure on US naval ships. They are challenging the US courts to declare those responsible for issuing payment are unfairly discriminating against them because they aren't US citizens.
The allegations form the basis for a newly filed lawsuit related to the 1982 bankruptcy of Johns Manville Corp., a manufacturer of building products that used bankruptcy to resolve a wave of litigation by people claiming to have become ill from the asbestos in its products.
Each man (or his representative) filed a claim against a trust set up to compensate those who became ill from Johns Manville's products.
They say their illnesses resulted from their exposure to the asbestos dust and fibres contained in Johns Manville products found in the US naval ships' boiler rooms, engine rooms and other confined areas. They say the trust has wrongly concluded that their exposure occurred off US soil.
"In the face of both domestic and international law to the contrary, let alone common sense, the trust and the [trust's claims processing company] have each taken the position that active naval warships of the United States Navy, while being repaired, maintained, serviced, or refurbished at both civilian and military shipyards of other nations and the United States, somehow lost their sovereignty as territory of this country," the plaintiffs wrote.
The plaintiffs say the trust's failure to designate their claims as "standard" claims - the designation given to US and Canadian creditors, where the bulk of Johns Manville's operations were located - represents discrimination based on their nationality: "namely, that they are not US citizens".
According to trust documents, holders of standard claims have to prove their injuries meet certain criteria. If they can show this, they're entitled to a pre-set dollar amount. But "non-standard" creditors, as the plaintiffs are currently considered, have to submit their claims for review and payment on an individual basis. The lawsuit specifically asks the bankruptcy court to declare the plaintiffs' claims standard instead of non-standard.
Founded in 1858, the Denver-based Johns Manville emerged from bankruptcy in 1988 and was acquired by Warren Buffett's Berkshire Hathaway Inc. in 2001.
Court papers show that as of September 30, the Manville trust has paid out more than US$4.2 billion to asbestos personal-injury creditors.
In 2010, Malta Shipyards were ordered to pay over €103,000 in damages to a family for failing to provide the required safety measures against cancer-causing asbestos, which led to the death of a 55-year-old worker.
A judgement handed by Chief Justice Silvio Camilleri, and judges Albert Magri and Tonio Mallia, who presided the Court of Appeals, upheld two judgments previously handed down by a civil court,
The shipyards were held responsible for the death of Joseph Fenech after it was proven that the yards did not provide any protective clothing or masks.
Fenech died in 1997 from a serious case of mesothelioma - a lung cancer caused by asbestos fibre, the Court of Appeals ruled."
Epigenetics and toxins are subjects of ever-increasing research and findings demonstrating harms to offspring, especially when a fetus is exposed to a toxin while in utero. In short, the timing of exposure can really matter. A new study is the first to link genetics and epigenetics with exposure to a flame retardant chemical. In short, the exposure of mother mice can result in harms in offspring. A possible human analog involves clear cell vaginal cancers suffered by "DES daughters and grand-daughters" after DES was consumed during pregnancy by a mother or
grandmother.
On the flame retardant, set out below are key excerpts from ScienceDaily's
summary of the new research paper and related press release materials:
"The research was published online February 16 in the journal Human Molecular Genetics. It will be presented during a symposium on Feb. 18, at the annual meeting of the American Association for the Advancement of Science (AAAS) by Janine LaSalle, a professor in the Department of Medical Microbiology and Immunology in the UC Davis School of Medicine and the UC Davis Genome Center.
"This study highlights the interaction between epigenetics and the effects of early exposure to flame retardants," said Janine LaSalle, the study's senior author and a researcher affiliated with the UC Davis MIND Institute. "Our experiments with wild-type and mutant mice indicate that exposure to flame retardants presents an independent risk of neurodevelopmental deficits associated with reduced sociability and learning."
Epigenetics describes the heritable changes in gene expression caused by mechanisms other than those in the DNA sequence. One such mechanism is DNA methylation, in which genes are silenced when their activation no longer is required. DNA methylation is essential for normal development. The researchers chose a mouse that was genetically and epigenetically susceptible to social behavioral deficits in order to understand the potential effect of this environmental pollutant on genetically susceptible humans.
LaSalle and her colleagues examined the effects of the chemical BDE-47 (Tetrabromodiphenl ether), a member of the class of flame retardants called polybrominated diphenylethers, or PBDEs. PBDEs have been used in a wide range of products, including electronics, bedding, carpeting and furniture. They have been shown to persist in the environment and accumulate in living organisms, and toxicological testing has found that they may cause liver toxicity, thyroid toxicity and neurodevelopmental toxicity, according to the U.S. Environmental Protection Agency. BDE-47 is the PBDE found at highest concentrations in human blood and breast milk, raising concerns about its potential neurotoxic effects during pregnancy and neonatal development.
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Rett syndrome is causally linked to defects in the methyl-CpG-binding protein 2 gene MECP2 situated on the X chromosome. Mutations in MECP2 result in a nonfunctional MeCP2 protein, which is required for normal brain development. The researchers evaluated the effects of exposure to BDE-47 on mice genetically engineered to have mutations in MECP2 and their offspring, or pups. The genetically engineered Mecp2 mother mice, or dams, were bred with non-mutant wild-type males. The dams were monitored for 10 weeks -- for four weeks prior to conception, three weeks during gestation and three weeks of lactation. They were then compared with a control group of normal, unexposed dams and pups over several generations and hundreds of mice.
The study found that that the weights of the pups of the lactating BDE-47-exposed dams were diminished when compared with the controls, as were their survival rates. To assess the effects of the flame retardant exposure on the pups and their genotypes, the researchers placed them through more than 10 cognitive, social and physical tests."
The Delaware Corporate and Commercial Litigation blog by Francis Pileggi includes an update on the constitutional challenges to the Delaware Chancery rule creating secret arbitrations presided over by Delaware chancery judges. The post includes myriad links - you can follow follow them back to see why most commentators see the procedure as a violation of First Amendment rights to access information, among others. The defense is focused on economics for Delaware lawyers and making business happy, as illustrated by this post:
Bouchard argued repeatedly that Delaware's Chancery Court needs to have this confidential process to keep it competitive in the field of business litigation, which brings in millions to Delaware every year through state incorporation fees. Businesses must be incorporated in Delaware to access Chancery Court.
Allowing the court to remain competitive and bring in this revenue benefits the citizens of Delaware, Bouchard said. There is no harm to the public, he argued, because the disputes handled by the procedure would otherwise go to private arbitration, where the public already is barred.
It is a "cut to the chase" program, Bouchard said, that is designed to resolve business disputes in as little as 90 days. A civil suit in public court could take years just to get to trial, he said, and cost far more to reach resolution. The program also is different from a bench trial because appeal options and the power of the judge/arbitrator are more limited, he said.
An amicus brief opposes secrecy and was filed by the Reporters' Committee for Freedom of the Press and media companies, including AP and the NYT. The Sturm College of Law in Denver has collected many of the briefs here.
The front page of the NYT this morning is dominated by a mosaic picture of 60 people who form a chain of 60 lives and 30 kidney transplants driven by domino chains of linked donations. The story by Kevin Sack is a remarkable tale and vividly illustrates the goodness of many people. The story focuses on a donation chain set in motion by the National Kidney Registry, a non-profit driven by a couple with a daughter who at one time needed a kidney transplant.
The heart-warming and remarkable story deserves a leisurely Sunday morning read to nurture faith in mankind. And, after the feel good part, consider the story's subtle but clear lessons on the human and financial gains resulting from investing money and time in collaborative, creative and passion-driven teams bringing to fruition the power of science in this new age of individualized medicine. Specifically, the chain of paired donations - and thus cures - was driven by:
The investment outcomes are fabulous. The story focuses on one particular chain of 60 people and 30 kidneys, but there are many more successful chains. The results are online at the web site. Read the full story and imagine the suffering avoided and the lives restored.
And, the investment also produces a fabulous financial return. So, the next time someone suggests cutting science budgets, follow Nancy Reagan's advice to "just say no" and then point the speaker to the following numbers quoted from Mr. Sack's article:
"Domino chains, which were first attempted in 2005 at Johns Hopkins, seek to increase the number of people who can be helped by living donors. In 2010, chains and other forms of paired exchanges resulted in 429 transplants. Computer models suggest that an additional 2,000 to 4,000 transplants could be achieved each year if Americans knew more about such programs and if there were a nationwide pool of all eligible donors and recipients.
Such transplants ultimately save money as well as lives. The federal Medicare program, which pays most treatment costs for chronic kidney disease, saves an estimated $500,000 to $1 million each time a patient is removed from dialysis through a live donor transplant (the operations typically cost $100,000 to $200,000). Coverage for kidney disease costs the government more than $30 billion a year, about 6 percent of the Medicare budget."
Reputation risk arises in many ways, including sharing trade names and trademarks. An example arises from the widespread news of the Italian criminal convictions of senior officials of Eternit entities. Feeling pressured by that news, Eternit Brazil issued the following press release.
RESS RELEASE
Feb. 17, 2012, 1:31 p.m. EST
SAO PAULO, Feb. 17, 2012 /PRNewswire via COMTEX/ -- The Brazilian Eternit Group, in view of recent news regarding the trial held at the Court of Justice in Turin, Italy, in which two ex-board members of Eternit Italy were held responsible for deaths resulting from the use of asbestos in its plants, wishes to publicly clarify that:
Eternit S.A. is a locally-owned, publicly traded company listed in the New Market, which is the highest level of Corporate Governance at the Sao Paulo State Stock, Commodities and Futures Exchange (BM&FBOVESPA), and bears no relation to Eternit in other countries, including Italy. The ownership and use of the trademark are exercised in distinct manners by different companies in several countries.
In Brazil Eternit employs chrysotile asbestos as a reinforcement fiber in the manufacturing of asbestos-cement roofing sheets and tiles using modern production techniques. The Italian company employed various types of asbestos, especially the amphibole variety, in several applications and without protection for the workers.
The activity in Brazil is regulated by Federal Law 9.055/95, Decree 2.350/97 and Regulatory Norms issued by the Ministry of Labor and Employment. These regulate the extraction, industrialization, sale and transportation of chrysotile asbestos and products which contain it, providing the Brazilian population with durable, high quality and excellent cost-benefit products; in this manner contributing to reduce the Brazilian housing deficit.
Market competition in the cement-asbestos segment, between Eternit S.A. and a French group that also is active in Brazil in the manufacturing and use of synthetic fibers, has led some Brazilian states, especially where the plants are located, to approve anti-asbestos legislation. It is worth mentioning that the validity of these laws awaits a merit decision on the part of the Supreme Federal Court.
The extraction and processing of chrysotile asbestos by controlled entity SAMA and the use of the mineral in Eternit's plants are subject to strict security standards that surpass legal requirements. With the improvement in production techniques and the perfection of work safety mechanisms, no accounts of disease related to the use of chrysotile asbestos have been reported among company employees who joined the group since the 1980's. A three-way agreement signed and in place since 1989, between the companies in the chain of production, workers and labor union entities and registered at the Ministry of Labor and Employment, has been instrumental and decisive in consolidating this achievement.
The use of asbestos-cement, water tank and roofing tile products containing chrysotile asbestos does not present risks to the population's health. There are no reports in Brazil of a single case of a resident who developed any disease as a result of inhabiting one of the more than 25 million residences covered by cement-asbestos roofing tiles containing asbestos. This fact is corroborated by a nationwide survey conducted by a renowned medical team linked to the main Brazilian universities, the project and final report for which were approved by the National Council for Scientific and Technological Development - CNPq, and which is available at the site http://www.sectec.go.gov.br/portal .
The Eternit Group operates under full transparency and maintains an "Open Doors Program" that has already received more than 50 thousand visitors to its plants and which grants access to any person who wishes to know more about the safe processes employed in mining and producing products that contain chrysotile asbestos.
Additional Information: www.eternit.com.br/ir
Elio A. MartinsPresident and Investor Relations Director for the Eternit GroupEternit S.A.Corporate Tax Payer Registration (CNPJ) No.: 61.092.037/0001-81
Investor Relations Team(55-11) 3038-3818 - (55-11) 3194-3872 - (55-11) 3194-3881 www.eternit.com.br/irri @eternit.com.br
SOURCE Eternit S.A.
Copyright (C) 2012 PR Newswire. All rights reserved
Is it possible that advertising for mesothelioma litigation will soon be exceeded by advertising for claims against asbestos bankruptcy trusts? One wonders. Consider for example the following "alert" recently issued by a "mesothelioma law firm" regarding a new asbestos trust.
"Clapper, Patti, Schweizer & Mason (CPSM) is a premiere mesothelioma law firm with over 30 years expereince representing clients in filing asbestos lawsuits and asbestos bankruptcy trust claims. As such, CPSM wants to alert their clients of last week’s confirmation of Leslie Controls’ pre-negotiated Chapter 11 reorganization plan by the U.S. District Court for the District of Delaware. With the final details hoping to be worked out within the next 3 months, asbestos victims can begin to file their claims against the trust.
(PRWEB) February 16, 2012
Last week, the U.S. District Court for the District of Delaware affirmed the U.S. Bankruptcy Court’s confirmation of Leslie Controls’ pre-negotiated Chapter 11 reorganization plan (In re: Leslie Controls, Inc., Chapter 11 Case No. 10-12199 (CSS), First Amended Plan of Reorganization of Leslie Controls Inc. Under Chapter 11 of the Bankruptcy Code), opening the way for those injured by asbestos to pursue financial awards for their asbestos related deaths and illnesses, such as mesothelioma and asbestosis.
A pre-negotiated plan enables the company to complete the Chapter 11 bankruptcy process more quickly and cost effectively than conventional filing because details have been worked out and agreements made that lead to less appeals and faster support by all parties.
Leslie Controls was first founded in 1905 by J.S. Leslie and later became a wholly owned subsidiary of CIRCOR International. According to CIRCOR, Leslie Controls equipped U.S. navy ships with asbestos containing gaskets and valves (asbestos components purchased from an outside supplier.)
Asbestos is a naturally occurring yet highly toxic mineral that was once used in thousands of industrial and construction products because of it’s heat, fire and erosion resistant properties. Exposure to asbestos causes fatal illnesses, such as mesothelioma, asbestosis and cancer. Anyone who develops an asbestos related injury, many of whom are military and Navy veterans who worked aboard ships, are entitled to file a mesothelioma lawsuit or asbestos bankruptcy claim against those they can prove are responsible for the products that caused their injury.
Leslie Controls sought bankruptcy protection in 2010 when, according to court papers, there were more than 1300 pending personal injury asbestos claims filed against them. Following U.S. law, all claims and litigation against Leslie Controls was stayed while the bankruptcy was pending. With approval of the reorganization plan, asbestos claimants can now file for compensation against the approved $75 million asbestos trust funded by Leslie and CIRCOR.
Mesothelioma attorneys Clapper Patti Schweizer & Mason (CPSM), who specialize in representing military and navy veterans diagnosed with asbestos cancer and diseases, want to alert clients that Leslie Controls reorganizaiton plan has been approved. Final completion of the bankruptcy approval process, according to a press release given by CIRCOR, is expected to “be completed in as little as 120 days.”
After such time, plaintiffs of Leslie asbestos cases will be able to make claims against the established trust for compensation for proven asbestos related deaths and illnesses.
If you have been diagnosed with mesothelioma, contact us today at 1-800-440-4262 for a free case evaluation. Filing a mesothelioma lawsuit or asbestos bankruptcy trust claim can be a very complex process, and having an experienced asbestos law firm that specializes in representing victims of asbestos is essential for successful and fast recovery. For over thirty years, Clapper Patti Schweizer & Mason has won significant awards for their clients, gaining them the reputation of being top asbestos attorneys in the United States.
Global asbestos claiming. The latest chapter in the global growth is a new lawsuit filed against the Manville Trust in New York bankruptcy court. The claimants are persons who live overseas and claim inhalation of Manville's asbestos fibers while aboard US warships. The complaint alleges that the Manville Trust terms are unfair and inequitable because persons living overseas are treated less well than are persons living in the US. According to Jaqueline Palank's Wall Street Journal article on the case, the Manville Trust intends to move to dismiss the complaint, quoting David Austern, the long-time General Counsel of the Trust.
The lawsuit raises myriad interesting questions, but it's not plain all will be reached or revealed in the litigation. Start with the question of jurisdiction - does the bankruptcy court have the power to resolve this claim? Next, do the plaintiffs have a 'right" to treatment equivalent to persons living in the US when judged against 1) the terms of the Trust, and 2) other sources of legal rights.
Third, were the plaintiff's interests adequately represented during the Manville bankruptcy, and can they bound by the terms of the bankruptcy court proceedings as a matter of due process? To my knowledge the Manville bankruptcy process did not include any estimates for overseas claims. Assuming that's correct, it seems plain the futures representative did not adequately represent his entire constituency. That being so, one could argue that the Manville injunction does not bind overseas claimants, and so current owners of Manville face successor liability tort claims by exposed and injured persons living overseas. This prior post explores that subject in greater depth, including analogies to the issues which have arisen after the original Agent Orange resolution.
Fourth, will this suit and discovery provide insights into the decision-making processes of the Trust? A look into the decision-making process would be fascinating because the Trust has become increasingly opaque in recent years, as discussed here. The case might also delve into why the Manville Trust stopped collecting social security numbers from claimants, a topic previously covered in this post.
One suspects the case will be resolved without all the issues being reached. But the due process and adequacy issues will remain for another day.
One more thing. The suit was filed by Mitchell S. Cohen, a lawyer in Narbarth, Pennsylvania. The web site for his firm describes his practice as follows:
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Mitchell S. Cohen has successfully practiced complex litigation and has specialized in representing injured workers exposed to asbestos and other toxic materials, since leaving the U.S. Department of Justice in 1979. He continues to hold companies accountable for the harm and damage they have caused to those who have worked in shipyards, power stations, refineries and elsewhere in the building trades, as well as their families who are likewise affected. He has obtained significant jury verdicts and settlements on behalf of those whom he has been privileged to serve.
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Remember when a tobacco company (Liggett) sought to avoid prosecution by turning over its knowledge of wrongful acts by big tobacco? Last year, Schwab sued 11 major banks claiming LIBORrates were fraudulently manipulated fraud. Now, Bloomberg has run a February 15 story regarding Canadian officials looking at LIBOR fraud charges against uber banks, aided apparently by a bank seeking to turn its knowledge into immunity. Here are key excerpts from the Bloomberg's article:
"JPMorgan Chase & Co., Deutsche Bank AG (DBK) and HSBC Holdings Plc (HSBA) are among at least seven firms accused by another bank of participating in a conspiracy to manipulate the price of derivatives worldwide for more than three years.
The unnamed bank, seeking immunity, told Canada’s Competition Bureau that traders and cash brokers conspired to influence the Yen London interbank offered rate from 2007 to 2010 to profit on interest-rate derivative positions linked to the benchmark. The bureau spelled out the probe in documents it filed with the Ontario Superior Court in May.
The documents, shown yesterday to Bloomberg News by court clerks, offer one of the most detailed accounts yet as watchdogs in Europe, Asia and the U.S. look into concerns that firms conspired to manipulate interest rates serving as benchmarks for trillions of dollars of financial products. Canada also is investigating Citigroup Inc. (C), Royal Bank of Scotland Group Plc (RBS), ICAP Plc (IAP) and RP Martin Holdings Ltd., the court documents show."
When I was in law school back in the dark ages of 1980-1983, no one taught a course in the litigation industry or courts competing for cases. Thirty years later, the industry and competition are evident.
New York is the latest entrant into the litigation industry race to be "good to business" litigation. That could mean many things, such as faster and more efficient systems with smart judges. Or, it could mean a tilted playing field. Prof Lynn LoPucki has eloquently and convincingly proven the "race to the bottom" caused many bankruptcy cases to end up in Delaware. Either way, court fees bring revenues and courthouse jobs, not to mention lawyers.
Set out below are excerpts from Joe Palazzolo's WSJ new article on New York's approach to doing better in the litigation industry competition:
“We must seek to create an even more hospitable environment for business,” said Chief Judge Jonathan Lippman Tuesday in his annual address on the state of the judiciary. The judge said he wants to “set a new vision for how we in the New York State court system might better serve the needs of the business community.”
The Commercial Division, New York’s business court, was carved out of the state Supreme Court 17 years ago, with an eye toward improving the quality and consistency of judicial decision-making in commercial litigation. Judge Lippman noted that other states had used New York’s business court as model, increasing the competition for cases.
“We must ask ourselves anew whether business leaders in New York and around the country know they can rely on our courts for the most efficient and expert resolution of business disputes,” he said.
Lippman announced the creation of a task force led by his predecessor Judith Kaye and Martin Lipton of Wachtell, Lipton, Rosen & Katz. In the next year, the task force will look at how to better control dockets, manage case flow and make more effective use of non-judicial personnel and alternative dispute resolution within the courts, the judge said.
***
Lippman said he would soon be sending a bill to the state legislature that would establish a new class of Court of Claims judges that the governor could appoint to sit on the Commercial Division.
“This would enable direct designation of seasoned commercial practitioners to supplement the court’s roster. New York has the best commercial lawyers in the world,” Lippman said. “They are a resource for our state, and it would be of great benefit if we could attract more of them to the New York Bench.”
Reputation risk problems are expensive even for not-for-profits. Consider, for example, this AmLaw article on Penn State's experience. The university had spent almost $3.2 million on lawyers and other advisors as of year-end 2011. No doubt many more expenses will follow.
Retraction Watch. It's a blog run by two science writers, and one of them is doctor. They look for and write about retractions and changes to articles in scientific journals. The "why" is obvious in some ways and not so obvious in other ways - they explained their mission in their opening post.
Yesterday, Retraction Watch posted a story involving asbestos and sponsored research. In this instance, there was no retraction. Instead, four articles - all from one journal - were modified to insert disclosures that the research work had been funded for litigation, and that the authors had been or would be working as consulting or testifying expert witnesses in asbestos litigation. The lessons seem apparent.
The disclosure states:
"The publisher would like to apologise on behalf of the authors of the following 4 articles published in Inhalation Toxicology.
1. Brorby, Sheehan, Berman, Green, Holm, Re-Creation of Historical Chrysotile-Containing Joint Compounds, Inhalation Toxicology, 20: 1043–1053 (2008).
2. Bernstein, Donaldson, Decker, Gaering, Kunzendorf, Chevalier, Holm, A Biopersistence Study following Exposure To Chrysotile Asbestos Alone or in Combination with Fine Particles, Inhalation Toxicology, 20: 1009–1028 (2008).
3. Bernstein, Rogers, Sepulveda, Donaldson, Schuler, Gaering, Kunzendorf, Chevalier, Holm, The pathological response and fate in the lung and pleura of chrysotile in combination with fine particles compared to amosite asbestosfollowing short-term inhalation exposure: interim results, Inhalation Toxicology, 2010, 22(11) 937–962 (2010).
4. Bernstein, Rogers, Sepulveda, Donaldson, Schuler, Gaering, Kunzendorf, Chevalier, Holm, Quantification of the pathological response and fate in the lung and pleura of chrysotile in combination with fine particles compared to amosite-asbestos following short-term inhalation exposure, Inhalation Toxicology, 2011; 23(7):372–391 (2011).
Since publication of these 4 articles we have had a request to add the following information to the Declaration of Interest section of each paper.
The additional statement reads:
“Georgia-Pacific has not sold chrysotile-containing joint compounds for more than 30 years, but litigation is pending in which individuals claim exposure to the Company’s historic products. The articles listed above report on work that Georgia-Pacific commissioned to address issues that have arisen in that litigation. I, Stewart E. Holm, representing Georgia-Pacific, am an author on all four papers. The other authors are consulting experts retained by or on behalf of Georgia-Pacific to conduct the research and prepare the articles. Dr. Donaldson has been listed as potential testifying expert witness by Georgia-Pacific, and Dr. Bernstein has testified as an expert witness for Georgia-Pacific.”
Read More: http://informahealthcare.com/doi/full/10.3109/08958378.2012.655000"In non-US claiming news from litigation in Germany, the Wall Street Journal and others are reporting a possible $ 1 billion settlement by Deutsche Bank of claims related to the bankruptcy of the Kirch Group. The reported settlement follows several years of litigation, and ancillary arguments regarding whether investigators acted improperly. Sounds rather like US litigation.
Tort claiming outside the US remains in the news. The BBC now reports that a French court has held Monsanto liable for "poisoning" arising from inhalation of Lasso, a now banned pesticide. The issues apparently center on chlorobenzene.
People sometimes take science in the wrong direction. In that vein, consider a blog post from Jennifer K. Wagner at the University of Pennsylvania’s Center for the Integration of Genetic Healthcare Technologies. Ms. Wagner's post explains that North Carolina is close to paying $ 50,000 of compensation to persons who are still alive and were subjected to involuntary sterilization. The post covers interesting ground and covers similar issues in other states - here's an excerpt:
"Charmaine S. Fuller Cooper, Executive Director of NC Justice for Sterilization Victims Foundation presented (pdf) the Task Force in April 2011 with the history of NC’s eugenics program, explaining that North Carolina adopted its first sterilization law in 1919, its second in 1929, and its third in 1933. North Carolina did not abolish its eugenics board until 1977. The involuntary sterilization law, however, was not repealed until 2003. Don Akin, State Center for Health Statistics, presented (pdf) the Task Force with estimates of how many of the >7,500 individuals sterilized through the program were expected to still be alive, calculating roughly 40% of the victims (~2,900 victims) would have survived to the year 2010, but placing a “realistic” estimate at 1,500-2,000 surviving victims."
Kevin LaCroix at D & O Diary put together a new post compiling several new presentations on the vast amounts of litigation related to corporate M & A.
News releases are starting to emerge on the Eternit trial. This early report indicates two executives were convicted and sentenced to 16 years in prison.
The Eternit-caused asbestos deaths are to result in a verdict on Monday in Italy. Numerous prior prior posts explain the background - search Eternit. Here is a news video which includes pictures of former Eternit factory operations. Set out below are excerpts from a related news article - the full article is online here. Video is here of plant operations in 1924. And a partisan synopsis is here.
A website devoted to the trial has been ongoing throughout the trial, and portions of the trial have been televised. The verdict will be well-covered by the media with television, real time translations, and streaming video.
On the day after the verdict, various asbestos litigation activists will gather for a press conference, and meeting. They include Barry Castleman, a frequent expert in US cases, and Laurie Kazan-Allen, leader of IBAS and sister of a prominent American plaintiff's lawyer, Steve Kazan.
Verdict looms in world's biggest asbestos trial
by Gildas Le Roux
ROME, February 10, 2012 (AFP) - A court in northern Italy will rule Monday in the unprecedented trial of a Swiss billionaire and a Belgian baron for over 3,000 alleged asbestos-related deaths.
Stephan Schmidheiny, the former Swiss owner of a company producing Eternit fibre cement, and Jean-Louis Marie Ghislain de Cartier de Marchienne, a major Belgian shareholder, are being tried in their absence and face 20 years in prison.
The allegations concern asbestos production at four Italian facilities and involve employees who worked there as well as people who lived nearby.
Schmidheiny and De Cartier are accused of causing an environmental disaster and failing to comply with safety regulations.
Over 6,000 people are seeking damages in the long-running lawsuit in Turin -- the home of auto giant Fiat and Italy's industrial heartland.
****
Eternit went bankrupt six years before asbestos was banned in Italy in 1992.
Prosecutors have requested that the accused -- Schmidheiny is now 64 years old and De Cartier 89 -- each be sentenced to 20 years in prison.
The crimes carry a maximum 12-year sentence, but prosecutors are seeking a harsher punishment because the fall-out continues to affect victims decades after.
"I have never seen such a tragedy. It affects workers and inhabitants ... it continues to cause deaths and will continue to do so for who knows how long," prosecutor Raffaele Guariniello told the court in his closing speech.
*****
The trial, which began in 2009 in Turin after a five-year investigation, is the biggest of its kind against a multinational for asbestos-related deaths, and victims and relatives hope it will set a precedent.
***
Negotiations between Schmidheiny and local authorities in Casale Monferrato for an out-of-court settlement fell through on February 3. The Swiss billionaire had offered the town 18 million euros ($23 million) to drop the case.
This past week, breast cancer claimed the life of a 55 year old US astronaut, Janice Voss. Ms. Voss is one of the approximately 1,575 people who die from cancer every day in the US. That's 575,000 people per year. New cancers? 1,600,000 per year. The numbers are here, among many places.
Numbers are abstract, so let's consider the numbers in a context. 575,000 annual cancer deaths is not far from Vermont's population of 621,000. What would we do if a "terrorist" killed everyone in Vermont?
In five years, the annual US cancer death toll of 575,000 totals up to approximately 2,875,000 people. That number is just under the 2,990,000 people living in three New England states. Specifically, the death toll is just under the combined populations of Vermont (621,000), New Hampshire (1,318,000) and Rhode Island (1,053,000). Again, imagine what society would do if a "terrorist" wiped out the populations of 3 New England states.
Now go back to the new cancer number of 1,600,000 new cancers per year. In two years, that number exceeds the populations of Vermont, New Hampshire and and Rhode Island. How can we let that continue to happen?
The world cannot afford major diseases, and should be investing heavily in science. Yet, in the US, we see "budget hawks" blindly arguing for across the board budget cuts that would further reduce research budgets already too low. How can anyone in good conscience suggest that nations cut budgets focused on research of major diseases? And, when will politicians stop posturing over political footballs and focus instead on real needs, such as encouraging science and facilitating faster, better clinical trials for promising new treatments (statement of ASCO)
The points are highlighted by the possibility that there is now a major breakthrough in Alzheimer's research. The news is out in a ScienceDaily summary of a new study published on Thursday in Science, a world class journal.
The news is big, as indicated by the article being published online on February 9, after being received on December 9, 2011. That's fast for a journal. The story also is on Huffington Post, in Scientific American (excellent summary), the BBC, and the Wall Street Journal. The news also is key because the active agent - Bexarotene- already is approved for use in coping with a form of cancer, might be "only" $1,200 per month and is under study in various trials for cancer issues.
Translating this research into the clinic is of course not a sure thing and will take time. But, if it works at all well, consider the potential benefits in human misery avoided, and economic savings. Scientific research is key for our collective futures and deserves vastly more financial support than it receives today. Set out below are key excerpts from the ScienceDaily summary:
"ScienceDaily (Feb. 9, 2012) — Neuroscientists at Case Western Reserve University School of Medicine have made a dramatic breakthrough in their efforts to find a cure for Alzheimer's disease. The researchers' findings, published in the journalScience, show that use of a drug in mice appears to quickly reverse the pathological, cognitive and memory deficits caused by the onset of Alzheimer's. The results point to the significant potential that the medication, bexarotene, has to help the roughly 5.4 million Americans suffering from the progressive brain disease.
Bexarotene has been approved for the treatment of cancer by the U.S. Food and Drug Administration for more than a decade. These experiments explored whether the medication might also be used to help patients with Alzheimer's disease, and the results were more than promising.
Alzheimer's disease arises in large part from the body's inability to clear naturally-occurring amyloid beta from the brain. In 2008 Case Western Reserve researcher Gary Landreth, PhD, professor of neurosciences, discovered that the main cholesterol carrier in the brain, Apolipoprotein E (ApoE), facilitated the clearance of the amyloid beta proteins. Landreth, a professor of neurosciences in the university's medical school, is the senior author of this study as well.
Landreth and his colleagues chose to explore the effectiveness of bexarotene for increasing ApoE expression. The elevation of brain ApoE levels, in turn, speeds the clearance of amyloid beta from the brain. Bexarotene acts by stimulating retinoid X receptors (RXR), which control how much ApoE is produced.
In particular, the researchers were struck by the speed with which bexarotene improved memory deficits and behavior even as it also acted to reverse the pathology of Alzheimer's disease. The present view of the scientific community is that small soluble forms of amyloid beta cause the memory impairments seen in animal models and humans with the disease. Within six hours of administering bexarotene, however, soluble amyloid levels fell by 25 percent; even more impressive, the effect lasted as long as three days. Finally, this shift was correlated with rapid improvement in a broad range of behaviors in three different mouse models of Alzheimer's.
One example of the improved behaviors involved the typical nesting instinct of the mice. When Alzheimer's-diseased mice encountered material suited for nesting -- in this case, tissue paper -- they did nothing to create a space to nest. This reaction demonstrated that they had lost the ability to associate the tissue paper with the opportunity to nest. Just 72 hours after the bexarotene treatment, however, the mice began to use the paper to make nests. Administration of the drug also improved the ability of the mice to sense and respond to odors.
Bexarotene treatment also worked quickly to stimulate the removal of amyloid plaques from the brain. The plaques are compacted aggregates of amyloid that form in the brain and are the pathological hallmark of Alzheimer's disease. Researchers found that more than half of the plaques had been cleared within 72 hours. Ultimately, the reduction totaled 75 percent. It appears that the bexarotene reprogrammed the brain's immune cells to "eat" or phagocytose the amyloid deposits. This observation demonstrated that the drug addresses the amount of both soluble and deposited forms of amyloid beta within the brain and reverses the pathological features of the disease in mice."
More and more dialog is ongoing on settlement of global tort claims, whether in securities litigation or physical injury mass tort claims. Recent interesting blogs posts are this post at PrawfsBlog, and this post at OpinioJuris.
Tuesday was an especially good day for science in the US.
One positive was the Administration announcing an additional $ 50 million of funding (still far from enough) for research on Alzheimers. Happily, the Administration and far-sighted legislators continue to invest in science instead of caving in to short-sighted budget hawks who fail to appreciate the human and economic value of investing in science. Investing in science should be a no brainer, as proved by the stunning gains in knowledge and jobs achieved from projects such as the race to the moon (Freakonomics quorum on ROI) and investing just under $ 4 billion in the Human Genome Project ($ 796 billion and 310,000 jobs in return for a $3.8 billion investment. )
The President also directly boosted science in general by hosting the administration's second White House science fair for young students. The serious and not so serious events included the President trying out a marsh mellow cannon (video here) developed by 14 year old Joey Hudy, one of the students. The cannon uses pressurized air to shoot marsh mellows up to 175 feet. On the more serious side, the Science Fair press release details a range of Administration actions supporting science. Key excerpts are below:
"[President Obama will be hosting] the second White House Science Fair celebrating the student winners of a broad range of science, technology, engineering and math (STEM) competitions from across the country. The President will also announce key additional steps that the Administration and its partners are taking to prepare 100,000 effective math and science teachers and to meet the urgent need to train one million additional STEM graduates over the next decade.
“When students excel in math and science, they help America compete for the jobs and industries of the future,” said President Obama. “That’s why I’m proud to celebrate outstanding students at the White House Science Fair, and to announce new steps my Administration and its partners are taking to help more young people succeed in these critical subjects."
The President hosted the first-ever White House Science Fair in late 2010, fulfilling a commitment he made at the launch of his Educate to Innovate campaign to inspire boys and girls to excel in math and science. Over the past year, the President met with the three young women who won the Google Science Fair, met a student robotics team on his bus tour through North Carolina and Virginia, and made a surprise appearance at the New York City Science Fair. The second White House Science Fair will include over 100 students from over 45 states, representing over 40 different STEM competitions that recognize the talents of America’s next generation of scientists, engineers, inventors and innovators. More than 30 student teams will have the opportunity to exhibit their projects this year, almost twice as many as the first White House Science Fair. The President will view exhibits of the student work, ranging from breakthrough research to new inventions, followed by remarks to an audience of students, science educators and business leaders on the importance of STEM education to the country’s economic future. For a sampling of the exhibits that the President will see, as well as more information on all the students, competitions and organizations being honored, click here."
Various groups argue various positions about "controlled use" of asbestos. Arguments, however, are not necessarily reality. Here's the story of a Canadian demolition contractor jailed for continuing to falsify records regarding the presence of asbestos in homes being demolished.
Paul, Weiss announced record profits, and litigation industry success is a key part of the story. Indeed, the firm's chair is a litigator. Here's a key quote from David Bario's AmLaw article:
"We were very fortunate in 2011 to have the highest revenues and profits in our firm's history, driven by record litigation and transactional activity" says chairman Brad Karp.
But Karp says the raw numbers tell only part of the story of the firm's success last year. In 2010, Paul Weiss earned a whopping $97 million contingency fee stemming from an Alaska pension agency's $500 million negligence settlement with a Marsh & McClennan unit. Subtracting that unusual element from the 2010 results, Karp says, would give Paul Weiss an eye-popping 19 percent jump in gross revenue for 2011."
"The firm prevailed in five major jury trials and arbitrations for key clients, including its victory for Citigroup in a $7.5 billion arbitration brought by the Abu Dhabi Investment Authority."
"We are fortunate to be counsel of choice to some of the world's leading financial institutions in their most challenging litigations and regulatory matters," Karp says.
Today is World Cancer Day. The message from the sponsoring group? DO SOMETHING
The Komen Fund made the right choice and reversed its mistake of letting politics reduce cancer screenings. Now it's up to the rest of us to do something, such as:
Sign the petition at worldcancerday.org.
Speak out against politics in cancer.
Speak out against cancer killing 600,000 Americans every year. In a decade, that's the population of Chicago.
Speak out on funding - our government spends $ 50 billion per year on homeland security but gives the National Cancer Institute only $ 5 billion for cancer research. Osama bin Laden killed about 2,100 people. That many people die from cancer every 2 days. Money is being spent in the wrong places.
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