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from MEALEY'S International Arbitration Report October 24, 2003 Kingspan Group plc Awarded $40.3 Million By Arbitration Panel WASHINGTON, D.C. -- Concluding that the owners of Tate Global Corp. of Maryland "did breach the representation and warranty" in the stock purchase agreement (SPA) it entered into with Kingspan Holdings U.S. Inc. and Kingspan Group plc of Ireland, an American Arbitration Association panel has awarded $40.3 million to Kingspan. The arbitrators on Oct. 10 issued a final award, finding that Daniel R. Baker and others involved in the sale of Tate Global to Kingspan breached the agreement and violated U.S. and Pennsylvania securities law "in that they made to Claimants misrepresentations of, and omissions to state, material facts and did so with scienter, in connection with their sale to Claimants of Tate Global Corp." under the agreement, upon which Claimants "relied to their detriment" (In the matter of the Arbitration between Kingspan Holdings U.S. Inc., et al. v. Daniel R. Baker, et al., 50 T 168 00487 1, AAA). (Award. Document #05-031024-112A.) On Dec. 13, 2000, Kingspan Holdings U.S., which is wholly owned by Kingspan Group, purchased from Baker all of the issued and outstanding shares of Tate Global. Baker is the son-in-law of Tate's founder, who served as president, chief executive officer and chairman of the board of directors of Tate and conducted the negotiations that led to the conclusion of the agreement. Tate manufactured and sold "raised access flooring" for commercial buildings. Kingspan Group was in the same business and intended to enter the U.S. market, according to the arbitrators. Starting Nov. 29, 2000, MCI, one of Tate's leading end users, "quite drastically reduced" its previous commitment to purchase about 75,000 panels of raised access flooring per month. "It is not disputed that essentially every member of senior management at Tate was contemporaneously aware of these developments relating to MCI. In particular, Mr. Baker himself testified, and several witnesses confirmed, that he was informed directly of the December 18, 2002 meeting in Richardson, Texas and its results," according to the arbitrators. Copyright 2003, LexisNexis, Division of Reed Elsevier Inc., All Rights Reserved This story and the complete archive of Mealey's Litigation Reports including related court documents are available online by subscription or on a pay-per-view basis. Go to Mealeys Online.
from MEALEY'S International Arbitration Report September 26, 2003 Nonsignatory's Claims Against Another Are Not Arbitrable BOSTON -- InterGen N.V. of the Netherlands and Alstom Ltd. of Switzerland won't be arbitrating their dispute because InterGen's claims against Alstom "are not subject to compulsory arbitration," the First Circuit U.S. Court of Appeals ruled Sept. 22 (InterGen N.V. v. Eric F. Grina, Alstom [Switzerland] Ltd. and Alstom Power NV, No. 03-1056, 1st Cir.). "Both InterGen and ALSTOM are sophisticated commercial actors, and each has been quite deliberate in constructing and deploying an elaborate web of affiliates to handle the Rocksavage and Coryton projects. As a result of these posturings, neither of them is a signatory to the underlying contracts," the appeals court concluded. (Opinion. Document #05-030926-015Z.) The First Circuit affirmed, for different reasons, a decision of the U.S. District Court for the District of Massachusetts denying Alstom's motion to compel arbitration. The District Court had held that under the U.S. Constitution, it lacked "authority to compel proceedings in London," the appeals court said, quoting InterGen N.V. v. Grina (No. 01-11774, slip op. at 3 [D. Mass. Nov. 6, 2002]). Intergen is an energy company that finances and develops electric power generation facilities throughout the world. In 1995, InterGen launched the Rocksavage power project in northwest England. InterGen choose GT26 gas turbines manufactured by Alstom Power N.V. for the Rocksage project and for the Coryton project in Essex, England. Bechtel Ltd. entered and signed the agreement to purchase the turbines from Alstom Power Generation, an indirectly owned subsidiary of Alstom Power. Citing problems with the turbines, InterGen sued in Massachusetts state court. Copyright 2003, LexisNexis, Division of Reed Elsevier Inc., All Rights Reserved This story and the complete archive of Mealey's Litigation Reports including related court documents are available online by subscription or on a pay-per-view basis. Go to Mealeys Online.
from MEALEY'S International Arbitration Report August 29, 2003 $4.26 Billion Judgment For Motorola Credit Stayed Pending Appeal NEW YORK -- U.S. Judge Jose A. Cabranes of the Second Circuit U.S. Court of Appeals on Aug. 18 entered an emergency stay of a $4.26 billion judgment in favor of Motorola Credit Corp. (MCC) pending appeal of the judgment by defendant Kemal Uzan (Motorola Credit Corp., et al v. Uzan et al., No. 03-7792, 2nd. Cir.). "Following referral of this motion for a stay to me on an emergency basis by Chief Judge John M. Walker, Jr., in the mid-afternoon of Friday, August 15, 2003, and a telephone conference with counsel for affected parties held on the record later that afternoon, the motion for a stay was GRANTED. Upon further consideration, the motion is hereby referred to the three-judge panel of the court sitting during the week of August 18, 2003, and the stay I entered on August 15, 2003 shall remain in full force and effect until that motions panel enters an order embodying its decision on the motion for stay," Judge Cabranes stated, according to an Aug. 18 docket entry. MCC and Nokia Corp. filed a motion to dismiss the appeal on the same day. In entering the $4.26 billion judgment on July 31, U.S. Judge Jed S. Rakoff of the Southern District of New York also denied, for a second time, a defense motion to compel arbitration. Judge Rakoff denied
Kemal Uzan's motion for a stay pending appeal on Aug. 8 but granted
the defendant's motion for a temporary stay of the judgment. In moving for the stay, Uzan argued that Judge Rakoff erred in seven instances, including the denial of arbitration rights. Copyright 2003, LexisNexis, Division of Reed Elsevier Inc., All Rights Reserved This story and the complete archive of Mealey's Litigation Reports including related court documents are available online by subscription or on a pay-per-view basis. Go to Mealeys Online.
______________________________________________________________________ from MEALEY'S International Asbestos Liability August
27, 2003 DUBLIN, Ireland -- The Irish government announced recently that it is planning to take legal action against hundreds of public sector workers with claims against the state who have sought damages for an alleged fear of cancer because of exposure to asbestos. The announcement, made Aug. 1 by the State Claims Agency (SCA), indicates that the government will seek an order from the Irish High Court in October seeking permission to recoup legal costs from claimants who allege an anxiety of contracting an asbestos disease yet have no current physical ailment. The SCA estimates that it has been forced to spend an average of E 5,000 ($5,438) a case and E 2.3 million ($2,501,821) overall to prepare defenses to the claims The claims against the state have been brought by workers who were employed in state-run buildings such as the Leinster House, Aras an Uachtarain, the National Gallery, the National Museum and Hawkins House. The SCA seeks to recover legal costs from more than 500 claimants. "The days when
claimants felt they could be speculative in relation to suing the State
are gone," said Ciaran Breen of the SCA. "Now, if you decide
to sue the State and lose, we [SCA] will seek to recover those costs."
Copyright 2003, LexisNexis, Division of Reed Elsevier Inc., All Rights Reserved This story and the complete archive of Mealey's Litigation Reports including related court documents are available online by subscription or on a pay-per-view basis. Go to Mealeys Online.
from MEALEY'S International Asbestos Liability October 24, 2003 Asbestosis
Claimant Awarded $265,000 By Australian Dust Diseases Tribunal (Judgment. Document #64-031024-102Z.) Judge Johns on Sept. 30 awarded Ronald Strachan, a trademan's assistant, damages for his condition as a result of his employment with Ameco Engineering Co. and his exposure to asbestos from a transfer machine manufactured by Ameco and commissioned by James Hardie. Judge Johns awarded Strachan damages for general damages and past and future medical care, among other things. Strachan was employed at Ameco Engineering as a trademan's assistant for three months between 1960 and 1961. During his employment, Strachan worked in the manufacturing of a transfer machine and often tested the machine by using asbestos cement fibro sheets supplied by James Hardie. During the testing of the machine, a stop-work meeting was called by Ameco employees because of the amount of asbestos dust the process was sending into the air. The solution was to move the testing to the James Hardie factory in Camellia, where the testing continued. In 1997, Strachan began to experience chest pain and shortness of breath; he was diagnosed in 2002 as having diffuse pleural plaques and asbestosis. Strachan subsequently sued Amaca, successor to Hardie, claiming that the company failed to warn him of the dangers of asbestos and was responsible for causing his pulmonary disease. The medical evidence was unchallenged, and Amaca did not offer a defense. At trial, Judge Johns assessed damages to compensate Strachan for his asbestos-related disease. In awarding Strachan $125,000 for general damages, Judge Johns noted: "The plaintiff [Strachan] has honeycomb cysts on his lungs, and widespread areas of coarse shadowing are to be observed throughout both lower lobes in the pattern of scarring. . . . Bearing in mind the fact that the plaintiff will suffer for a considerable number of years I assess general damages in the sum of $125,000 and I allow 2 per cent interest on a third for the past." Judge Johns awarded Strachan $38,650 for past care plus interest and $97,000 for future care, including lawnmowing and motor vehicle services. Copyright 2003, LexisNexis, Division of Reed Elsevier Inc., All Rights Reserved This story and the complete archive of Mealey's Litigation Reports including related court documents are available online by subscription or on a pay-per-view basis. Go to Mealeys Online.
from MEALEY'S International Asbestos Liability September 24, 2003 Cancer Claimants, Insurers Appeal Confirmation Of ABB Bankruptcy Deal WILMINGTON, Del. -- A group of cancer claimants and several insurers involved in the Chapter 11 bankruptcy proceedings of Combustion Engineering Inc. have filed notices of appeal seeking to block the confirmation of a proposed global settlement bankruptcy deal between CE parent ABB Ltd. and asbestos creditors (In re: Combustion Engineering Inc., No. 03-10495 [JKF], D. Del. Bkcy.). The Cancer Claimants Committee in CE's case and 10 insurers on Aug. 15 filed notices with the Third Circuit U.S. Court of Appeals, seeking to overturn a decision by U.S. District Judge Alfred Wolin that confirmed the $1.2 billion prepackaged Chapter 11 bankruptcy plan of Combustion Engineering. The group of approximately 280 cancer claimants and the insurers contend that preferential treatment was given to certain claimants under a prepetition trust established as part of the settlement and that their due process rights were violated by not being included in the negotiations that comprised the structure of the deal. The Third Circuit has stayed the bankruptcy case in the U.S. District Court for the District of Delaware pending appeal and has established an expedited briefing schedule to deal with the appeals. Under the appeals court timeline, briefing from both sides must be completed by early October. In addition to the Cancer Claimants Committee (No. 03-3415), insurers First State Insurance Co. (No. 03-3392), Travelers Indemnity Co. (No. 03-3414), Certain Underwriters at Lloyd's London (No. 03-3425), Allstate Insurance Co. (No. 03-3436), Evanston Insurance Co. (No. 03-3437), Allianz Insurance Co. (No. 03-3445), Everest Reinsurance Co. (No. 03-3446), Century Indemnity Co. (No. 03-3450), OneBeacon America Insurance Co. (No. 03-3451) and North River Insurance Co. (No. 03-3452) all filed notices of appeal with the Third Circuit. In a development related to the CE case, Judge Wolin on Sept. 15 issued an order reversing a June 23 decision by Judge Judith K. Fitzgerald that ordered CE global settlement deal facilitator Joseph F. Rice of Motley Rice in Mt. Pleasant, S.C., to inform his clients of his "conflict of interest" in the case and return any attorneys' fees from clients who do not submit a waiver signifying that they understand Rice's role in the deal but accept his representation. In facilitating the prepackaged deal, Rice negotiated with ABB while also representing claimants who had claims against CE, ABB's U.S. subsidiary. Certain interested parties raised an objection to Rice's role because he is being paid $20 million by the parent of an entity he is suing. (Order. Document #64-030924-102R. Opinion. Document #64-030924-103Z.) Copyright 2003, LexisNexis, Division of Reed Elsevier Inc., All Rights Reserved This story and the complete archive of Mealey's Litigation Reports including related court documents are available online by subscription or on a pay-per-view basis. Go to Mealeys Online.
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