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Asbestos use in a wide variety of products, and all new products, has been banned for more twenty years, and yet asbestos litigation continues to be a multi-billion dollar business because asbestos was used everywhere and remains all around us. … Continue reading →

© Max Kennerly. The original for this post is The Asbestos Settlement Fraud That Wasn’t There at Litigation & Trial.

Asbestos use in a wide variety of products, and all new products, has been banned for more twenty years, and yet asbestos litigation continues to be a multi-billion dollar business because asbestos was used everywhere and remains all around us. Even if you were never exposed to asbestos as part of your work, you still have “millions of [asbestos] fibers and tens of thousands of asbestos bodies” in your lungs. The difference between an average person and an asbestos plaintiff is often just one thing: a diagnosis of mesothelioma. (For any die-hard tort reformers out there who doubt that link, consider this 2011 study identifying the specific way asbestos alters proteins in mesothelial cells. If someone has mesothelioma, it’s virtually guaranteed it was caused by asbestos exposure.)

By coincidence, two separate articles yesterday touched upon a subject that has kept injury lawyers (both plaintiffs’ and defense) interested for more than a generation: figuring out which asbestos exposure caused a particular person’s mesothelioma and thus who, if anyone, is responsible.

At Corporate Counsel:

The Government Accountability Office released a new report on Wednesday analyzing asbestos injury trusts, shining some light on a multi-billion-dollar system of plaintiff claims and payouts that operates largely in secret.

The report, Asbestos Injury Compensation: The Role and Administration of Asbestos Trusts [PDF], reviewed 52 asbestos-related bankruptcy trusts that “have paid about 3.3 million claims valued at about $17.5 billion.”

The GAO found that while the majority of the trusts made general data available, very few provide detailed information about their activities without being directed to by a court of law: “Most asbestos trusts we reviewed publish for public review annual financial reports and generally include total number of claims received and paid.  Other information in the possession of a trust, such as an individual’s exposure to asbestos, is generally not available to outside parties but may be obtained, for example, in the course of litigation pursuant to a court-ordered subpoena.”

More on that in a moment. The Legal Intelligencer reported on arguments before the Pennsylvania Supreme Court in Betz v. Pneumo Abex:

The [appeal] follows an Allegheny County judge’s decision to grant a global Frye motion on behalf of several friction-based product defendants, subsequently granting summary judgment in their favor. …

According to the defense, one expert’s testimony was a “bad science” assertion that summed up to this: If a lot of asbestos can cause harm, so too can a little.

The expert under scrutiny, Dr. John C. Maddox, had relied upon an analysis the defense said gave unsupported weight to “each and every breath” one takes of asbestos. Under such an approach, they said, Maddox opined every breath one takes of friction-based products can contribute to developing mesothelioma.

Let’s start by going back to that GAO report. As if on cue, Daniel Fisher at Forbes and the U.S. Chamber of Commerce both chimed in to hurl unfounded attacks at trial lawyers, like:

“It is becoming clear that rather than acting to prevent abusive claims, the asbestos trusts are effectively encouraging fraud by inhibiting claims information sharing between the trusts and the tort system. We hope that Congress’s growing attention to this important issue will ensure that the trusts operate in a manner fair to asbestos victims and job-creating businesses, not plaintiffs’ lawyers and fraudulent claimants.”

It’s part of an attack on trial lawyers in general, who asbestos defendants have started suing to intimidate them out of taking asbestos cases. Fisher helped get this “asbestos claim fraud” ball rolling years ago, with assertions like:

Even as states crack down on frivolous lawsuits by people with no symptoms at all, trusts established by bankrupt asbestos manufacturers are paying tens of thousands of claims each year based on inflated or downright false stories of how people were exposed to their products.

Shocking. Tens of thousands of inflated or false claims?

There’s just one problem with this theory, as Corporate Counsel pointed out:

The report itself does not claim to have documented any regular occurrences of fraud, however, and includes review of the trust distribution procedures (TDP) that each trust has in place: “Although the possibility exists that a claimant could file the same medical evidence and altered work histories with different trusts, each trust’s focus is to ensure that each claim meets the criteria defined in its TDP, meaning the claimant has met the requisite medical and exposure histories to the satisfaction of the trustees. Of the trust officials that we interviewed that conducted audits, none indicated that these audits had identified cases of fraud.”

Fraud? What fraud?

Sure, the anti-asbestos-victim forces can name a handful of the same cases over and over again, like the Kananian case, which Fisher references again, thinking it proves his point that asbestos trusts are rife with fraudulent claims and easy, unjustified settlements. It doesn’t. The Kananian case showed how, even if a few bad actors try to manipulate the process, they’ll just end up getting caught. As soon as the Kananian estate tried new claims with a new trust, their new lawyers caught the “outright fabrications” — those were the plaintiffs’ lawyers’ words — and sent out “immediate” instructions to everyone to be wary of the claims and to ensure all future claims were accurate. They then amended their schedules.

Based on one example — in which the system worked — the big corporate interests, the asbestos-cement, roofing, flooring, car manufacturers, and friction product companies, want to change the system completely to cut off even more people. It’s at best the boy who cried wolf, more likely just another strawman argument.

Which brings me back to the Betz v. Pneumo Abex case. An “every breath you take” medical opinion in support of asbestos causing mesothelioma might run into some evidentiary challenges — even though, like with all cancer-causing agents, it happens to be true — that wasn’t actually the issue in the case:

For Betz’s attorney, David B. Rodes of Pittsburgh firm Goldberg Persky & White, the defense was pulling a “classic bait and switch.”

Nobody was arguing that “one breath” of asbestos caused Simikian’s cancer, he said. Rather, there was a cumulative picture — more than 40 years of exposure to friction-based products — he urged the court not to ignore.

From the reports, it seems the Pennsylvania Supreme Court ‘gets it’ and recognizes the “every breath you take” theory isn’t even at issue there. Moreover, it wouldn’t be improper to permit that evidence; as the court reaffirmed just two years ago, Abrams v. Pneumo Abex Corp., 981 A.2d 198 (Pa. 2009), the mere increased risk of harm from asbestos exposure is itself enough to state a viable cause of action.

The real question is if Congress will intervene in the trusts to placate a handful of business interests. “If it isn’t broken, don’t fix it” doesn’t seem to apply where there’s corporate money at stake.

The focus of the Forbes article is applicability and effect of the bonus depreciation feature of the Tax Relief Act of 2010, and its potential tax benefits to qualified horse businesses. As the Forbes article suggests, some race horse operations who buy yearlings in 2011 may be able to deduct 100% of the yearling’s purchase price. 

Before the bonus depreciation feature of the Act became effective on September 9, 2010, the percentage of depreciable basis allowed as bonus depreciation on qualified property was only 50%. This 50% depreciation percentage will apply again in 2012.

The potential tax savings offered by the Act for the 2011 tax year are significant for qualified horse businesses. Walt Robertson, Keeneland’s vice president of sales, indicated in the Forbes article that the Act may have positively affected sales activity at the Keeneland 2011 September Yearling Sale. 

It is important to note that the Act does not refer to specifically Thoroughbreds, yearlings, race horses, horses or livestock. The Act provides 100% bonus depreciation for all “qualified property”. In general, “qualified property” is tangible personal property and equipment purchased for use in a business operation, as long as certain conditions are met. For horse businesses, qualified property could arguably include horses, trailers, trucks, tractors, ATVs, and other horse/farm equipment.  Among the conditions that must be met are the following:

1) the horse / equipment’s original use must begin with the taxpayer (i.e. horses that have not begun training; new equipment); and

2) the horse / equipment must be placed in service after September 8, 2010 and before January 1, 2012;

As many of the experts quoted in the Forbes article indicate, the Act does not provide an “easy write-off”. For starters, taxpayers wishing to avail themselves of the 100% bonus depreciation must be able to prove that they are in the “horse business” and that the property was purchased for said business. This element may pose difficulties to taxpayers who have not shown a profit in their horse business for many years. Further, purchasers of fractional interests in racing syndicates are generally considered “passive investors”, and therefore may not see any tax savings through application of the Act.

There are other considerations that come into play to determine whether the 100% depreciation is available, such as whether the taxpayer borrowed money to purchase the horse/equipment through an LLC or other entity. 

Horse businesses who purchased or will purchase new horses or equipment in 2011 should consult a CPA or attorney who has expertise in the equine industry to determine the possible applicability of the Act to their newly-acquired property.

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Some of the word’s richest characters are fictional, and although the spending (or scrooging, as the case may be) isn’t real it’s just as entertaining.

Forbes has released their 2011 Fictional 15, a list of the wealthiest fictional characters in the world. Their net worth averages $9.86 billion (up a whopping 20 percent from last year) and each was calculated based on source material, real life commodity and share price movements, and a healthy dose of “this is just for fun.”

So who tops the list? Scrooge McDuck, of course, with his penny-pinching ways and investments in “hoardables” earning him a fictional net worth of $44.1 billion.

Other interesting list members include: No. 2 Carlisle Cullen of the Twilight series, rich in part due to solid banking habits and and early investments into Wal-Mart and Google, and No. 7 the red-golden dragon “Smaug” from “The Hobbit” who hoards his riches meticulously but spends little, preferring instead to use his gold and gems as bedding material.

See the complete Forbes Fictional 15 here.

Scrooge McDuck Tops Forbes Fictional Rich List originally appeared on Luxist on Fri, 08 Apr 2011 13:00:00 EST. Please see our terms for use of feeds.

On Wednesday, Forbes magazine will publish its annual list of the richest billionaires in the world. It’s almost certain to include Bill Gates, Warren Buffett and Carlos Slim in the top three, but while Gates has topped the list nearly every year since 1995 (losing out only once to Buffett by a margin of half a billion), this year we’re not expecting to see the Microsoft co-founder in the top spot.

The reason for Gates’ displacement? His overwhelming philanthropic activity. Although his personal fortune today is estimated around $49 billion, he and his wife Melinda have funneled some $28 billion into their non-profit foundation. As a result, Mexican billionaire Carlos Slim – who contributes far less than Gates or Buffett to charity – is expected to top the list.

[Source: Reuters]

Bill Gates Gives Up “World’s Richest Man” Status for Philanthropy originally appeared on Luxist on Tue, 08 Mar 2011 19:01:00 EST. Please see our terms for use of feeds.

But, as Pinterest hit some sort of inflection point right around the Super Bowl (with the help of Facebook integration), a bunch of people started noticing that there were some significant copyright questions involved. After all, the basic way it works is you make use of images you find online and “pin” them into a collection. But if you don’t have the rights to use those images, is it infringement? Some are pretty sure that it violates the law in that it wasn’t clear it would really qualify for fair use — and there were also some questions about how thoroughly it complied with DMCA takedown requests. Either way, the issue began to explode with a ton of articles all discussing the copyright questions.

As this suddenly got so much more attention, Pinterest just rolled out a “nopin” meta tag, which allows website owners to basically block images from a site from being easily “pinned” to a Pinterest collection. Depending on who you listen to, this either answered all the copyright questions or merely represented a “small step” towards dealing with them. For angry photographers, I’d bet they’re going to claim the latter is more accurate, if they’ll even grant that much.

There’s also a separate, but related, issue concerning Pinterest’s terms of service that includes some boilerplate language that pretty much every online service includes and when someone reads them for the first time, they freak out about how Pinterest is claiming too many rights over the uploaded works. This is an exaggeration — and we’ve seen the same thing happen with TwitPic and others, where the terms are there to make sure you’re granting the site an effective license to display the works, and not as some nefarious plan to claim ownership of the works.

Either way, the community that’s been most vocal about Pinterest and how it’s something evil are photographers. While there are plenty of photographers who are quite reasonable on copyright issues, for some reason, it seems like photographers often can be the most extreme on copyright issues, and it’s no different here.

However, it seems like (as the music industry did with Napster, and now the movie industry has done with cyberlockers), they’re getting the wrong message out of what’s happening online: these services are opportunities, not threats. If you want to understand why, I recommend reading (thoroughly) a recent blog post by photographer Trey Ratcliff, who goes into great detail not just about how Pinterest has been really useful for him (including in driving revenue), but that photographers need to stop treating everything as a threat, and start looking at these things as opportunities. Again, you should read the whole thing, but here are a few useful snippets. Ratcliff points out that treating everything as a threat means that you spend all your time trying to angrily shut stuff down, rather than getting your work out there. But there are real advantages to getting your work out there (and he explains why it should be high res, and without watermarks, contrary to the standard way that many photographers do thumbnails with annoying watermarks):

Most people in the world are good people. If they find digital art they want to buy for a print or use in a commercial campaign, they will figure out a way to get you money. 99% of your traffic is truly “window-shoppers.” They will look at your goods, take note, enjoy them and move on. But 1% will want to make a personal or business transaction with you….

[....]

StuckInCustoms.com has healthy traffic that grows every year thanks to good old-fashioned word-of-mouth. We don’t advertise or buy links or any of that stuff. So I depend on the Internet and nice people like you to link back to the site and tell your friends that you find something unique and cool.

Last month, we had 714,143 Pageviews and 234,107 unique visitors. 15% of this traffic came from Pinterest. Amazing! If Pinterest didn’t exist (a reality some photographers would prefer), then our traffic would be 15% less. Choosing to switch-off innovation is a fool’s errand, especially in today’s world. It reminds me of the scene in Anthem where the council of candle-makers becomes rather upset at the invention of the light bulb.

[....]

Someone on Pinterest can make a board called “Feeling a bit blue,” and they can fill it with cool-colored melancholy photos. Isn’t this just another way of making a poem? If I built up this pinboard and sent it to a friend, it’s nothing but a visual poem in a new medium. It’s just as powerful, and, in many ways, more accessible.

Pinterest is simply another way (a newer, evolving way, mind you) for humans to communicate with one another. It is increasingly the job of digital artists to inspire, share and bring more beauty and communication into the world.

There really is a lot more there, and it’s worth reading the whole thing. Also, Ratcliff appears to be an absolutely awesome photographer, so I recommend checking out his work too.

Either way, his point is a strong one, and it’s really no different than what many people have made to reactionary folks in other parts of the content industry. You can spend all your time trying to kill innovation or stop people from doing what they want to do… or you can bask in the wonderment that people want to do stuff, encourage them to do so, and make it easier for them to help spread your works… all the while making it easy for them to support you. Ratcliff seems to be a perfect example of our discussion on the benefits of being open, human and awesome.

And, in the end, that’s the key point. Whether or not Pinterest is a copyright landmine is kind of besides the point. It’s a really fascinating innovation that is having massive (unprecedented) success in terms of users. Clearly, it’s tapped into a market by providing something that a very large number of people absolutely love. When that happens, there are always opportunities, and smart photographers should be focused on finding and embracing those opportunities.

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Last week, Glenn Greenwald, over at Salon, went into tremendous detail in accusing Mitt Romney’s billionaire national finance co-chair, Frank VanderSloot (oddly, links to this page don’t seem to work, but if you go to Greenwald’s blog you can still get to it — at the same URL), of regularly using SLAPP-like suits or threats of SLAPP-like suits to silence critics. He lays out a number of examples, involving publications both big (Mother Jones, Forbes) and small (various small time bloggers). Unfortunately, it appears that many of those publications simply backed down, often removing the material entirely. You would think that publications like Forbes and Mother Jones would stand up to such actions, but they both took down the articles critical of VanderSloot, though Mother Jones eventually (a week or so later) posted a new version that was apparently edited to address the complaints.

VanderSloot is CEO of Melaleuca, which has been described as a multilevel marketing company. In that Forbes article, Melaleuca is described as a “a pyramid selling organization.” Elsewhere, in complaints to the government, it has been described as a “pyramid scheme.” VanderSloot and Melaleuca have argued, however, that it is not a “pyramid scheme.” He’s also been very politically active, not just in the Romney campaign, but various other political campaigns — including paying for billboards to speak out against the local PBS station showing a particular documentary about gay issues. Forbes recently used this story to suggest that VanderSloot was “a large contributor to a number of anti-homosexual causes.” That article has since been removed but copies can be found online. Greenwald also details a blog post by James Tidmarsh on the site IdahoAgenda, which claimed that VanderSloot “has a pretty solid anti-gay history in Idaho.” VanderSloot and his lawyers appear to take exception to such claims, and the Tidmarsh blog post has since been removed after he apparently received multiple communications pressuring him to take the post down or face consequences.

As we’ve seen in SLAPP cases we’ve looked at in the past, at times he uses copyright to try to threaten legal action — including in one case where his lawyers registered the copyright on a takedown letter they sent a blog, which they then used to claim infringement against the person who posted the letter on the site (to explain why the original blog post was removed). In that case, since it involved anonymous bloggers, VanderSloot’s company, Melaleuca also tried to issue subpoenas to identify the bloggers. Similarly, they apparently claimed copyright infringement in a letter to a blogger who made use of a VanderSloot corporate headshot — a common practice, and one for which there is at least some legal precedence for fair use (and that threatening over such uses can be seen as a SLAPP attempt).

We’ve seen many similar cases, but Greenwald lays out so many similar stories involving VanderSloot and Melaleuca (many with detailed citations), that I’m kind of surprised that we hadn’t come across these before. Either way, you can tell that Greenwald (who is a lawyer) was quite careful in drafting his writeup, most likely expecting at least some pushback. He also highlights the cause of one blogger, Jody May-Chang, who does not seem to want to back down against VanderSloot, after having received a letter (pdf) recently about an old blog post (for which it’s likely any defamation claim is long past the statute of limitations).

Once again, stories like these really highlight the need for a strong and clear federal anti-SLAPP law. It would certainly be interesting for someone in the political press to ask Mitt Romney for his position on a federal anti-SLAPP law, given his relationship with VanderSloot. Either way, I feel it’s a shame that we don’t have such a strong federal anti-SLAPP law in place already. Such a law would go a long way towards protecting basic First Amendment principles. I’m always most amazed at the rich and powerful using these types of tactics (see: Snyder, Dan) not just because such people are public figures (where the bar for any defamation claim is significantly higher), but because you would think that, having gotten to such a level, they’d be secure enough in their arguments that having random publications snipe at them should be of little concern.

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First off this is my first post, I have learned a lot in the last three years but now have a different case that hasn’t been covered in detail. There also is minimal information out there that doesn’t look extremely biased. Last week I had a house fire in the utility corridor that runs from the basement to the attic in my 2200 sq ft colonial house. The house is 14 months old and built by a reputable builder. The fire investigation is still under way as there are a number of potential causes of the fire, electrical short, flu mis-installation, etc. The fire was not due to neglect or a mistake I made inside the house.

When I realized the house was on fire, I called 911 and being in a rural area had some time before the fire department showed up. I was able to evacuate a number of personal belongings, valuables, etc that could not be replaced. However the smoke and water damage was fairly extensive and is going to require a full gut and rebuild of the building.

I am less concerned with who is a fault regarding the fire as my insurance company is determining that. I am now trying to get smart in regarding to dealing with my insurance company, maximizing the effectiveness of my claim and making sure I don’t get screwed. Does anyone have any suggestions as to an advocate or resources for fire loss? There are a number of public adjusters that called that seem to be scum bags, should I hire a public adjuster or fight the claim myself? Who determines what is an acceptable level of smoke damage to salvage something? Can I be compensated for a loss of value in my house as I must now declare there has been a fire, similar to a salvage title for a car? Has anyone gone through this before and has tips or tricks that helped them out?

I am not necessarily looking to lawyer up, get sue happy and try to bone anyone, I just want to make sure over the next 5 years I don’t end up at a financial loss due to a subcontractors mistake.

Thanks for you help,
Tyler Forbes

With states on the fence rejoining the deal with the major mortgage lenders, it appears that this settlement may get approved soon.

Forgetting the politics and the reality of the settlement being much less than the issues behind it, I want to examine the actual financial results to normal folks, whether it be checks, changes to their mortgage, etc. If someone has a even more comprehensive link to what the deal is, I would appreciate it. I will update with information as it becomes available.

http://www.nationalmortgagesettlement.com/

So far, here is what I have:

If all states participate, $25 billion (with a possible loan mod value of even more).

The mortgage companies involved:
-Bank of America (includes Countrywide)
-JP Morgan (includes Chase and WaMu loans)
-Ally (includes GMAC)
-Citigroup
-Wells Fargo (includes Wachovia)

-Not about MBS issues, this is primarily about “robo-signing” and other direct underwriting/foreclosure abuses

$5 billion paid to troubled borrowers, states, and federal government
-$1.5 billion of the $5 billion is for foreclosed borrowers (750,000 folks in this category)
-Each borrower expected to receive average $1500 to $2000 check for these categories

Other $20 billion is really aid, not cash for cutting balanced owed for and refinancing those who are current but underwater
-$3 billion of it to lower rates of those who are current, but underwater (I am guessing the cost for the rate buydown and closing fees due to LTV). I have no idea what the criteria is for this one, but it appears these refinances will become loans guaranteed by FHA. These loans cannot be GSE loans (primarily Fannie and Freddie).
-$17 billion for those who are not current and need loan balances reduced or some other modification.
-Writing down principal for those who are in trouble will be encourage versus short-sale and other options
-Penalties payable in cash to federal government if the banks do not meet their thresholds on this part of the package within two years.

Rasheed

References:
http://www.nytimes.com/2012/02/06/business/mortgage-relief-plan-…
http://www.forbes.com/sites/deborahljacobs/2012/02/06/what-the-m…
http://www.forbes.com/sites/danielfisher/2012/02/09/states-feds-…
http://www.chicagotribune.com/business/breaking/chi-robisigning-…

Our happy hour fact to amaze your drinking buddy with. Las Vegas is the most stressed-out city in the nation. To determine a city’s stress level, Forbes magazine measured its unemployment rate, commute times, work hours, access to health care, … Read more

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