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Serving Clients Locally from Offices Nationwide


National Attorney Referral Program Trust a firm with over a century of experience. Collaboration Through our most recent joint venture, we have more than eighty attorneys throughout the country protecting the rights of our clients.

Opportunit y Our Referral Program is one of the best in the nation and could be beneficial to you and your clients.

Grow th New offices increase our ability to better represent local and national clients in an expanding range of Practice Areas.

We have obtained landmark settlements for our clients, over $3 Billion in verdicts and settlements. Interested parties contact (888) 529-4669


Evidence of Experience Senior Partners

Serving clients locally from offices Nationwide Headquarters Empire State Building

Paul J. Napoli

350 Fifth Avenue New York, New York 10118

Paul J. Napoli is nationally known as

Offices

rights in courts around the country,

a tenacious advocate for his clients’

New York

Illinois

Pennsylvania

California

Maryland

Rhode Island

DelAware

New Jersey

Texas

Florida

where he consistently achieves results in the multiple millions of dollars for injured plaintiffs. He has been named in New York Super Lawyers ® each year since 2007, and in 2010, was named as one of the top 100 lawyers in the New York Metropolitan area.

NapoliBern.com / (888) 529-4669

Marc J. Bern

contact us for your free consultation

Marc J. Bern’s legal career spans over Follow NApoli Bern

35 years, in which time he has tried more than 100 cases to jury verdict and has settled hundreds of cases in excess of $1M for his clients. Mr. Bern

Download the Mobile App

has been designated a New York Super Lawyers ® every year

Napoli Bern Accident Toolkit

since 2006, is a Million Dollar Advocates Forum member and

Free download For

and

was also selected as one of “America’s Premier Lawyers” by

photography is tock / tifonimages (Cover); iStock /dra _ schwart z (interior cover)

Fortune Magazine.

Alan S. Ripka

Accolades

Alan S. Ripka began his legal career as

Super Lawyers

a criminal prosecutor at the District

2012 The Legal 500

Attorney’s office for Kings County.

Fortune Magazine

In 1992, he began in civil litigation,

America’s Premier Lawyers Law Dragon Top 500 Plaintiff’s Lawyers in the United States

where he continues today. He has tried countless cases to verdict and has recovered numerous awards over one million dollars. He is a member of the Board of Directors for the NY State Trial Lawyers Association.

Million Dollar

Hunter J. Shkolnik

Advocates Forum

Hunter J. Shkolnik brings over 25

American Trial

years of legal experience to his po-

Lawyers Association

sition in the firm. He is a sought after speaker in the areas of auto and

Cambridge Who’s Who Top 100 Attorneys in the New York Metro Area

drug product liability and currently serves as a chairman, leader or court appointed representative on Plaintiff Steering Committees in various drug and other

National Trial Lawyers

mass torts. He been designated a New York Super Lawyers ®

top 40 Under 40 in New York

since 2006. profile / 03


Our Misson

At Napoli Bern Ripka Shkolnik, LLP, we are dedicated to protecting the rights of our clients. Your cause is our cause and we are here to serve you. We are ready to listen and to provide all the support you and your family will need to achieve justice for your case. Our firm's trial lawyers have the courtroom experience to stand against any firm in the nation, and we will do what is necessary in order to achieve what matters most to you — Results.

Witness to Results

Verdicts & Settlements

$816.45 Million

$47.5 Million

$35 Million

Set tlement

Set tlement

Verdict

For injuries sustained by Firefighters, For Injuries sustained by Rescue and

For a former US Navy machinist mate

Police Officers and Construction Work- Recovery Workers at Ground Zero from

who was exposed to asbestos.

ers at Ground Zero from toxic dust

$875 Million

toxic dust recovered from The Port Authority of New York and New Jersey

$2.5 Million Set tlement

Set tlement

$220 Million

On behalf of users of a pharmaceutical

Set tlement

breach of their fiduciary duties to their

that caused heart defects

On behalf of users of a pharmaceutical

clients

$52 Million Set tlement

that caused heart defects

$24.5 Million

Against an investment advisor firm for

$3.6 Million Set tlement

For environmental contamination of mu- Set tlement

For a Floridian town whose groundwa-

nicipal water supplies of MTBE by Petro- For injuries sustained by Rescue and

ter was contaminated from a chemical

leum Refiners and Retailers

Recovery Workers at Ground Zero from

manufacturing plant and industrial prop-

toxic dust at Fresh Kills Landfill

erties

Set tlement

$1.3 Million

$28 Million

On behalf of users of a pharmaceutical

Set tlement

Set tlement

that caused heart defects

On behalf of clients for the unlicensed

For Injuries sustained by Rescue and

$118 Million

$7 Million Verdict

sale of securities

$9.4 Million

For an individual who suffered knee, Verdict back and shoulder injuries in a three car

For a motor vehicle accident victim who

collision

required multiple surgeries

0 6 / profile

Recovery Workers at Ground Zero from Toxic Dust while working on the Barges and Piers


Knowledge Precedes Practice Areas

Environmental Litigation

Personal Injury Personal Injury does not only pertain to

Environmental

contamination

physical injuries. It can also refer to cas-

heavy

chemicals,

metals,

with

pesticides,

es involving psychological trauma, emo-

gases, asbestos, radiation or other toxin

tional distress, defamation of one’s rep-

can cause serious illnesses among chil-

utation or loss of property value or

dren, adults, pets and livestock as well as

property damage caused by the negligence of another.

cause extensive property damage.

FDA & Prescription Drugs

Workers ’ Compensation

Untested, improperly labeled, misused

Without knowing how to navigate the

or otherwise defective drugs, medical

workers’ compensation claim process, an

devices or equipment can harm rather

employee who has suffered a work

than help. You may be facing the side

related injury or occupational illness, or

effects of a recalled medication or the

their family, could lose valuable benefits.

failure of medical devices or medical equipment. Securities / Commercial Litigation

Medical Malpractice Patients may be suffering from misdiag-

We focus on financial industry and cor-

nosis, surgical or medical treatment er-

porate abuses including consumer fraud,

ror or abuse such as at a nursing home. It

conflicts of interests, whistle blower

is also possible that a health care pro-

complaints and broker negligence or

vider failed to disclose all possible risks

misconduct, especially as it relates to

of a procedure, treatment or drug.

stock market losses.

Motor Vehicle Accidents

Asbestos / Mesothelioma

Accidents can involve any combination of

Mesothelioma, asbestosis, lung cancer

passenger vehicles, commercial vehicles,

and other respiratory diseases are se-

tractor-trailers, buses, motorcycles, bi-

rious and fatal medical conditions that

cycles and pedestrians. Unfortunately

are linked to asbestos exposure in the

some accidents cause severe injuries,

military, construction, factory, shipbuild-

death or extensive property damages.

ing and automotive industries.

Product Liabilit y

Social Securit y Disabilit y Benefits

These types of cases deal with the liabil-

Social Security Disability Benefits can be

ity of manufacturers, wholesalers, dis-

based upon work-related or non-work-

tributors and retailers for any damages

related conditions and can be received

caused by their defective product due to

prior to full retirement age and/or in ad-

defects in design, manufacturing or

dition to Workers’ Compensation or other

marketing.

benefits you receive, such as a Municipal Disability Pension.

Download the Mobile App Napoli Bern Accident Toolkit

(888) 529-4669 NapoliBern.com

Free download For

contact us for your free consultation

and

profile / 07


J oint V e ntur e s

Serving Clients Locally from Offices Nationwide

headquarters Empire State Building 350 Fifth Avenue

Results in 50 States

New York, New York 10118 New York (2) C alifornia (2)

Over $3 Billion in Verdicts and Settlements

Del Aware

for Our Clients

Florida Illinois Maryl and New Jerse y Pennsylvania Rhode Isl and Tex as

Two Big Long Island Firms Team Up By James Bernstein (The Scoop) March 26, 2012

T

Source

wo large Long Island law firms announced Friday they have gotten together,

but they’re calling it a joint venture, not a merger. Pasternack Tilker Ziegler Walsh Stanton & Romano LLP, which has office in Garden

City, Bohemia and Southampton, has joint-ventured with Napoli Bern Ripka Shkolnik LLP, which has offices in Great River. The combined firm, being called Pasternack Tilker Napoli Bern, will have 80 lawyers and a staff of more than 200 and offices in five states. The Napoli firm is best known for the nearly $800 million World Trade Center settlement it obtained on behalf of injured rescue and recovery workers. The Pasternack firm has won “hundreds of millions” in workers’ compensation benefits over the years, said senior partner Jordan Ziegler. The combination is a joint venture, he said, because the firms want to make the best use of each other’s compensation and negligence departments. Will it ever become a full marriage? Stay tuned, Ziegler says.

0 8 / Joint Ventures

Newsday

Pasternack Tilker Napoli Bern LLP has over 80 attorneys nationwide.


Costa Concordia Survivors Sue Carnival for $528 Million Dozens of Costa Concordia survivors have joined in a Florida lawsuit against Carnival Corp. accusing them of negligence and fraud. By Michael Billera February 15, 2012

Source

International Business TImes

“The nature of the conduct, being so outrageous and reckless, and the failure to provide for safety features, actually negates the contract ... it makes the ticket null and void,” said Marc Jay Bern, a senior partner in one of the law firms that filed the suit…

NB Note The Costa Concordia collided with rocks of the coast of Tuscany on January 13, 2012.

S

uing for about $528 million, 33 more passengers were added to the Florida

lawsuit that was filed in January with just six. The lawsuit claims that Carnival Corp.

and its employees exercised gross negligence on the ship that resulted in the deaths

of 32 people on board, reported the Maritime Executive. The crews allegedly did not conduct proper safely drills and adequately provide the passengers with information. The lawsuit claims that the crew was not properly prepared for the evacuation and the cruise line caused mental distress to those on board. Witnesses were forced to fend for themselves on the ship with little communication and direction from the crew. The captain had allegedly fled on a lifeboat. The lawsuit claims that the cruise liner committed fraud by claiming they followed all safety regulations. The passengers said that an online agreement that they accepted when they bought their tickets did not provide the full details about safety on board. “Plaintiffs found themselves in a listing, capsizing, sinking vessel without communication, direction or help from the captain and misdirection from the crew from approximately 9:45 p.m. to approximately 11 p.m. and were left to fend for themselves,” the lawsuit said, according to MSNBC. The passengers are asking for over $78 million in compensatory damages and $450 million in punitive damages. These figures do not include the attorney fees, reported the Maritime Executive. “The nature of the conduct, being so outrageous and reckless, and the failure to provide

photography Francesco Amorosino

for safety features, actually negates the contract ... it makes the ticket null and void,” said Marc Jay Bern, a senior partner in one of the law firms that filed the suit, Napoli Bern Ripka Shkolnik and Associates, according to MSNBC. Carnival Corp originally offered passengers $15,000 each. Passengers had to agree to the offer by Tuesday, but the company extended the offer to March 31, 2012. “The families of deceased and missing victims and guests who were injured will be covered under a separate proposal based on their individual circumstances,” the cruise line said, according to MSNBC. The passengers who are claiming the damages in the lawsuit are from the United States, Italy, Venezuela, China, Canada, Germany, Korea and Kazakhstan, reported Maritime Executive. The lawsuit said that Florida courts should hold the case because the defendants, Carnival Corp. engaged in business in the state.

Joint Ventures / 09


En v ironm e nta l

A Plaintiff’s Primer on Litigating Natural Gas Cases Marc J. Bern and Tate J. Kunkle of Napoli Bern Ripka & Associates discuss some of the hurdles that must be faced by plaintiffs’ attorneys representing Marcellus Shale landowners who have incurred damages from gas drilling operations. By Marc J. Bern, Esq., and Tate J. Kunkle, Esq. (Napoli Bern Ripka & Associates) JUNE 8, 2011

I

n the last several yearS, the natural gas drilling boom has multiplied gas produc-

ers’ efforts in gas extraction and expanded east from the historic mining areas of the

Source

Westlaw Journal® (Formerly Andrews Litigation Reporter)

Midwest and West. The move to extract natural gas from the Marcellus Shale in West

Virginia, Ohio, Pennsylvania and New York has brought an unprecedented wave of industrialization into previously rural areas. Residents who fled the urban industrialized areas are finding themselves right back where they started. Never before have natural gas wells and drilling operations been so “in your face” and directly on or adjacent to land where people live and raise their families and livestock. In one location, a gas company is seeking to put two gas wells on a golf course that is in a retirement community. In another area, gas companies are departing unoccupied federal lands and drilling gas wells next to neighborhoods and schools. It is not uncommon to see drilling rigs and waste pits right next to grazing dairy cows. The collision of residents living in the peaceful countryside with the industrial operations that include siting, drilling and, increasingly, “fracking,” or the pressurized injection of fluids

Never before have natural gas wells and drilling operations been so “in your face” and directly on or adjacent to land where people live and raise their families and livestock.

into the gas wells, has left many people with nowhere to turn except to the judicial system. These historically non-litigious people who have repeatedly tried to work with the state agencies and gas companies to remedy their issues have increasingly sought attorneys to help them in their time of need, often as a last resort.

The Clients Many people suffering from the negative affects of gas drilling operations have little to no experience in litigation. They stayed in (or moved to) the country to avoid the noise, pollution and industrialization of urban areas and are very reluctant to seek legal advice. They think if they bring a lawsuit, their neighbors will look down on them or become angry for complaining about an industry that has brought (at least for the short term) an influx of jobs and money into the area. They also do not want to irritate their neighbors who have received

NB Note People near gas well drill-

ing operations also report respiratory illnesses from air pollution.

significant signing bonuses for drilling leases and who continue to receive royalties. Our clients do not want to see the gas companies leave. Indeed, many even work for them. Almost all of our clients have tried over long periods of time to negotiate with the gas companies to resolve issues including contaminated air and water, noise and light pollution and problems with their oil and gas leases. In many cases they work with these large powerful companies because they truly believe that no one can successfully stand up to them. Others are reluctant to seek legal advice for fear of being called unpatriotic or perceived as simply looking to make a quick dollar. Although the list of reasons why people are reluctant to turn to legal help goes on and on, in our experience the number-one reason is that they feel alone and helpless. The people in these rural areas are often unaware that their neighbors are suffering from the same problems and are equally afraid to come forward. Continue reading at NapoliBern.com

10 / Environmental

Landowners often cooperate with gas companies because they believe that no one can stand up against them.


Class-Action Lawsuit Filed Against Nuclear Fuel Services By Brad Hicks, Erwin Bureau Chief JUNE 13, 2011 / Erwin, Tennessee

Source

Johnson City Press

“Throughout the operational history of these facilities, defendants have caused the release of radioactive, hazardous and toxic substances into the surrounding environment,” the complaint said.

A

class-action lawsuit seeking damages from Nuclear Fuel Services and its

parent company for alleged “reckless” and “negligent” operation of the Erwin plant, leading to personal injuries and property damage, was filed Monday in U.S. District

Court in Greeneville. The 40-page complaint filed Monday outlines alleged injuries, property damage and emotional distress suffered by 19 plaintiffs due to “repeated releases of hazardous and radioactive substances” by NFS. Thirteen of the plaintiffs listed in the complaint, including one former NFS employee, allege they developed various forms of cancers because of these releases. Two of the plaintiffs allege the cancer deaths of relatives were caused by materials released from NFS. “The putative class-action (lawsuit) includes any person who lived or worked in the Erwin area between 1957 and the present and experienced property damage or was diagnosed with severe or fatal illnesses, including numerous types of cancer,” a release from the Motley Rice law firm announcing the lawsuit said. “The plaintiffs claim they were exposed to radioactive, hazardous and toxic substances released into the nearby air, water and soil due to, among other charges, gross negligence on the part of NFS and numerous other named defendants.” Aside from Nuclear Fuel Services and its parent company since 2008, Babcock & Wilcox,

…Plaintiffs contend Nuclear Fuel Services has not been operated in compliance with state, local and federal laws.

other defendants named in the suit include the W.R. Grace & Co., which the complaint said jointly funded the formation and development of NFS in collaboration with Davison Chemical Co. from when it opened in 1957 to 1968; the Chevron Co., the predecessors of which exercised ownership and operational control of NFS from 1969 to 1986, according to the complaint; and NFS Holdings Inc., which the complaint says exercised ownership and oversight of the Erwin facility from 1987 to 2008. “Throughout the operational history of these facilities, defendants have caused the release of radioactive, hazardous and toxic substances into the surrounding environment,” the complaint said. “These releases have contaminated the air, soil, surface water and ground water in the surrounding communities. The harm directly and proximately caused by defendants includes property damage and personal injuries.” The complaint states compensatory, punitive and loss of consortium damages are being sought for the plaintiffs, but a monetary amount sought is not specified. The plaintiffs in the suit are being represented by attorneys from three law firms — Greeneville-based Rogers, Laughlin, Nunally, Hood & Crum; South Carolina-headquartered Motley Rice; and New York-based firm Napoli Bern Ripka & Associates. Attorneys from each of these firms previously held a pair of meetings in Unicoi to discuss legal options with area residents who feel they were harmed by operations at NFS. The complaint was filed Monday by John T. Milburn Rogers, founder of Rogers, Laughlin, Nunally, Hood & Crum. “We have seen in previous environmental contamination cases the devastating impact that negligent environmental practices can have on a community, and our hope is that Erwin residents will now have their day in court as well as initiate changes in the safety culture at NFS,” Motley Rice environmental attorney Fidelma Fitzpatrick said in the release announcing the lawsuit. The complaint said plaintiffs contend NFS has not been operated in compliance with state, local and federal laws, and that each defendant named in the suit “engaged in a pattern of negligent, grossly negligent and reckless behavior in their operation, remediation and/or decommissioning of the facilities,” with this pattern of behavior being implemented with full knowledge of the hazards associated with radioactive and toxic substances. Continue reading at NapoliBern.com

Environmental / 11


En v ironm e nta l

Aspen Law Firm Files Class-Action Lawsuit Against Antero Over Battlement Drilling By David O. Williams July 21, 2011

Source

Colorado Independent

NB Note Natural Gas Drilling is causing contamination of land and water supplies.

D

enver-based Antero Resources, the company revealed to be disposing of oil

and gas drilling waste in Eagle County in a Colorado Independent exclusive earlier this month, is now being hit with more legal action stemming from its natural gas

drilling activities in neighboring Garfield County. According to the Glenwood Post Independent, the Aspen law firm of Thomas Genshaft filed a class-action lawsuit against Antero on behalf of the 5,000 residents of the Battlement Mesa

subdivision, an unincorporated community along Interstate 70 in Garfield County. The suit, which names six specific Battlement Mesa residents as plaintiffs, seeks a jury trial and alleges Antero’s current and future drilling activities “threaten the health and well being” of the residents of the former Exxon oil shale company town turned retirement community, according to the Post Independent. The lawsuit filed in Denver District Court late Wednesday comes on the heels of another Genshaft lawsuit against Antero filed on behalf of a Silt Mesa family alleging drilling contamination chased them off their property. That suit was filed in conjunction with Genshaft’s New York City partner, Napoli Bern Ripka and Associates – the firm that won huge awards in a class action suit against the city stemming from health risks associated with the World Trade Center cleanup. Battlement Mesa residents have long accused Garfield County of failing to protect their health and welfare and promised not to give up in the wake of the county pulling the plug on its controversial Health Impact Assessment earlier this year. The Colorado Independent earlier this month revealed that Antero is the only company utilizing the nearby Eagle County Landfill to dispose of oil and gas drilling waste. The county is now “moving away” from accepting contaminated soils and the county commissioners will have the ultimate say if Antero or any other operator seeks to dispose of pit liners, which were banned in Garfield County in 2009 because of toxic contaminants. All contaminated soils and other drilling waste from Antero have been tested according to strict state health and environmental standards, according to Eagle County officials.

12 / Environmental

The suit, which names six specific Battlement Mesa residents as plaintiffs, seeks a jury trial and alleges Antero’s current and future drilling activities “threaten the health and well being” of the residents of the former Exxon oil shale company town turned retirement community, according to the Post Independent.


Attorneys Insist on Water for Dimock Residents By Michael Rubinkam (Associated Press) November 5, 2011 / Scranton, Pennsylvania

Source

Timesleader.com

“PADEP’s arbitrary decision will deprive these deserving people and future generations, of their constitutional right to pure, clean, potable water,” wrote Tate Kunkle of the New York City law firm of Napoli Bern Ripka Shkolnik & Associates in a letter to the state Department of Environmental Protection.

A

law firm has demanded that Pennsylvania environmental regulators force a natu-

ral-gas driller to continue delivering replacement water to residents of Dimock whose

drinking water wells were tainted with methane and possibly hazardous chemicals.

A drilling rig is near a barn and bales of

Cabot Oil & Gas Corp. has been delivering water to the homes since January 2009. The

hay Friday, Oct. 14, 2011 in Springville,

Houston-based energy company asserts the water is safe to drink and won regulatory

Pa. State regulators blame faulty gas

permission last month to stop the water deliveries by the end of November.

wells drilled by Cabot Oil & Gas Corp for leaking methane into the groundwater in nearby Dimock, Pa. It was the first serious case of methane migration related to the Pennsylvania 3-year-old drilling boom, raising fears of potential environmental harm throughout the giant Marcellus Shale gas field.

Attorneys for 11 Dimock families who are suing Cabot in federal court said that test results show their well water is still contaminated. “PADEP’s arbitrary decision will deprive these deserving people and future generations, of their constitutional right to pure, clean, potable water,” wrote Tate Kunkle of the New York City law firm of Napoli Bern Ripka Shkolnik & Associates in a letter to the state Department of Environmental Protection. Regulators previously found that Cabot drilled faulty gas wells that allowed methane to escape into Dimock’s aquifer. The company denied responsibility, but has been banned from drilling in a 9-square-mile area of Dimock since April 2010. Along with its request to stop paying for water deliveries, Cabot asked the department for permission to resume drilling in the Susquehanna County community. The state agency has yet

photography AP Photo/Ale x Brandon

to rule on that request.

Environmental / 13


En v ironm e nta l

Cabot Report Finds Chemicals but No Health Threats in Whistleblowers Investigation By Laura Legere December 15, 2011

A

gas drilling company ’s investigation of spills and leaks alleged by a former

employee at its Susquehanna County well sites found nothing in the streams, ponds and soil it sampled at levels that would pose a risk to human health except metals it

said occur naturally in the region. The investigation by an environmental contractor hired by Cabot Oil and Gas Corp. found

substances that it said could indicate past spills form natural gas operations – including surfactants, chlorides and compounds associated with diesel fuel – at six of 11 well sites identified by the former employee. Those substances “were not commonly present in soil and sur-

Source

The Daily Review

Arsenic was found in soil samples at six well sites above statewide health standards.

face water at the well sites” and do not have state-mandated limits in soil and water, it said. The report was submitted to the state Department of Environmental Protection this week. A spokeswoman said regulators are reviewing the report and plan to respond to Cabot in the next week. The two-year investigation began in December 2009 when Dimock Twp. resident Scott Ely, then an employee of Cabot’s drilling subsidiary Gas Search Drilling Services, outlined claims of hidden or ignored spills, leaking pits and shoddy practices to environmental regulators and Cabot officials. Cabot’s contractor, URS Corp., set out to “demonstrate that any releases or incidents alleged by Ely were either confirmed or proven not to have occurred,” according to the report’s introduction, but the report never specifies where spills were proven or disproven. Instead, it details the investigation of 13 well sites, including analysis of samples from 25 soil test boreholes and 47 test pits as well as water-quality results from ponds and streams above and below the alleged spills. Eleven of the sites were identified by Ely. The twelfth and thirteenth sites were added to the investigation when another landowner claimed that drilling fluids were transferred to a pit on his property with a torn liner and drilling workers revealed that a drum holding petroleum products and antifreeze was buried at a well site and later recovered partially empty. According to the report, five sites revealed no substances other than metals the authors said occur naturally in the soil, sediment and surface water of the region. The metals, including elevated levels of arsenic, aluminum and iron, “do not indicate a release or impacts” from “Cabot’s drilling activity at any wellsites,” the report said. Arsenic was found in soil samples at six well sites above statewide health standards. The metal is frequently found in the wastewater that flows back from Marcellus Shale gas wells, but the report’s authors said that “arsenic or arsenic-based compounds are not known to be used in drilling or hydraulic fracturing or in substances that are alleged by Ely to have been released at the various wellsites evaluated. Tests from six sites showed the presence of what URS called “indicator parameters” that “could indicate past releases from processes related to natural gas operations.” The surfactant Methylene Blue Active Substances (MBAS) was found in soil at four well sites while diesel-range organics or other constituents of diesel fuel were found at four well sites. Seven sites had low levels of volatile or semi-volatile organic compounds, classes of chemicals that can occur naturally but are often man-made and found in paints, fuel and industrial cleaners. None were found at levels above state health standards. Some of those chemicals, including naphthalene, MBAS and bis(2-ethylhexyl) phthalate, were detected at low levels during recent Cabot water tests of 11 Dimock water wells. Cabot and Ely had opposite interpretations of the study Wednesday. Continue reading at NapoliBern.com

14 / Environmental

NB Note People experiencing

water supply contamination from gas drilling operations have reported adverse health conditions.

Outlined claims of hidden or ignored spills, leaking pits and shoddy practices to environmental regulators and Cabot officials.


In Drilling Safety Debate, Hydrofracking’s Not the Only Target By Mireya Navarro December 28, 2011

Source

The New York Times

Mr. Bern said he doesn’t take sides in the debate over whether hydrofracking should be allowed — he just argues that “it can be done in a much better way.”

I

n the heated debate over fracking in New York, it is often forgotten that con-

ventional natural gas drilling has been taking place in the state for decades. Chemung County, a place I write about in Wednesday’s Times, has been a leader

in gas production in the state and is now poised to become a leader in exploration of the

Marcellus Shale. Drilling awaits the approval of new state rules governing horizontal drilling combined with high-volume hydraulic fracturing, or fracking – a controversial process because it uses large amounts of water, more than one million gallons per well — and could pose new risks of groundwater contamination. But conventional vertical and horizontal drilling has its safety issues as well. In Chemung County, where gas companies have been drilling in the Trenton Black River rock formation, a group of 15 residents filed a lawsuit last winter against Anschutz Exploration, a company based in Colorado, over drilling operations at two gas wells that they claim contaminated their drinking water.

“The industry itself believes that things can be done safe, but they want to do it in the most expeditious and cheapest way and deal with the environmental costs and the contamination later, “ Bern continued.

The law firm shepherding that suit, filed in State Supreme Court in Elmira, N.Y., is Napoli Bern Ripka, which recently won a settlement of nearly $700 million with the City of New York and its contractors on behalf of more than 10,000 workers saying that they developed respiratory illnesses as a result of their rescue and recovery work at ground zero after 9/11. One of the lawyers, Marc J. Bern, said that the firm has cases pending over natural gas drilling operations in Pennsylvania, Colorado, West Virginia and now New York. Mr. Bern said he doesn’t take sides in the debate over whether hydrofracking should be allowed — he just argues that “it can be done in a much better way.” “The industry itself believes that things can be done safer, but they want to do it in the most expeditious and cheapest way and deal with the environmental costs and the contamination later,” he said. Industry representatives dispute that notion. “That’s why we have standards and recommended practices on drilling and water management,” said John Felmy, chief economist for the American Petroleum Institute, which represents more than 400 oil and natural gas companies. “We as an industry are committed to doing this right.” Officials with the New York State Department of Environmental Conservation investigated the Chemung residents’ complaints last year but found that the drilling was unlikely to have caused methane to seep into potable water wells. “Methane commonly occurs in residential water wells since it is often present in bedrock at shallow depths,” a fact sheet on the case from the department says. “The way the gas wells were constructed makes it unlikely that gas from deeper formations could migrate through multiple cemented casing strings into any aquifers near the surface.”

Environmental / 15


En v ironm e nta l

Attorneys Argue Over 2013 Asbestos Trial Docket By Christina Stueve March 26, 2012

S

ixty-one asbestos defendants are asking Madison County Associate

Judge Clarence Harrison to revise the court’s 2013 advance trial docket. More than 100 attorneys packed a third floor courtroom on Monday morn-

ing as both sides of the bar argued their points in opposition to and support of a

preliminary order established in December by former asbestos Judge Barbara Crowder. Heyl Royster attorney Robert Shultz presented his proposal which would eliminate a reservation system for preferred plaintiff’s firms, prioritize cases going to trial by the oldest ones with Illinois plaintiffs and establish the identity of cases 60 days in advance of trial. “Cases with little or no connection to Illinois are drawn to Madison County,” Shultz said. “Trial dates are marketed. Annually, defendants are forced to defend hundreds of suits brought by plaintiffs who live hundreds, if not thousands, of miles away.

Source

The Record (madisonrecord.com)

“Victims have finite lifespan. Clients need trial settings. They need to have access to trial dockets,” says Steven Aroesty of NBRS & A.

As a result, Shultz said few local citizens bring cases, and few local industries remain. According to Shultz’s presentation, 158 people are diagnosed annually with mesothelioma in Illinois, but Madison County has 500 plus trial dates per year for those suffering from the disease. Madison County has two percent of the population of Illinois, yet it shoulders nearly 25 percent of mesothelioma litigation in the nation, Shultz said. His presentation drew a reaction from plaintiff attorneys in the courtroom, including Elizabeth Heller of Goldenberg Heller Antognoli & Rowland, P.C. and Barry Julian of Gori Julian in Edwardsville. “Mr. Shultz is a very gifted attorney,” Julian said. “Seventy six point three percent of all people who quote statistics make them up as they go along,” he said. Heller repeated remarks she made in the fall before Crowder. “The sky is not falling. Cases without me are getting dismissed or sent elsewhere,” she said. “The system is working.” Attorney Eric Jackstadt of the Saville and Flint law firm told the court his firm requested three trial dockets but received two. “The docketing system has a place in reality,” Jackstadt said. “We asked for three dockets. We got two. It’s never been a problem in the past for individual cases to be piggybacked.” “What the defense is arguing for will deny asbestos plaintiffs their significant rights.” Allyson Romani pleaded that Harrison set the cases for trial. “These cases need to be set for trial,” she said. “Extending trial dates will make it so clients may never see their trial dates. Getting rid of the current system will not make these cases go away. Consider the rights of every victim who brings their cases here.” Steven Aroesty of Napoli, Bern, Ripka, Shkolnik & Associates filed a motion to reconsider Crowder’s order on March 7. “Victims have finite lifespan,” Aroesty said. “Clients need trial settings. They need to have access to trial dockets.” For the defense, Raymond R. Fournie of Armstrong Teasdale said asbestos litigation has resulted in an excess of 80 bankruptcies in Madison County. “The number of cases on the defense side has been difficult to deal with,” Fournie said. Shultz filed an 18-page brief March 12, opposing Crowder’s order. His brief stated that the court’s trial reservation system is no longer being used for its original purpose, to resolve local asbestos lawsuits. The brief was also signed by Fournie, Daniel Donahue of Foley & Mansfield in St. Louis; and Steven Hart of Segal McCambridge Singer & Mahoney of Chicago. Continue reading at NapoliBern.com

16 / Environmental

These cases need to be set for trial. Extending trial dates will make it so clients may never see their trial dates.


Giving Back Napoli Bern LLP is proud of its tradition of sponsoring honorable and educational organizations. The firm supports numerous groups who recognize the events and sacrifices made on September 11, 2001. Napoli Bern LLP is actively involved in progressive academic communities (including 92nd Street Y, St. John’s University School of Law and the St. John’s University Fellowship Program). The following represents our recent commitments.

The New York Cit y Police Department Pulaski Association April 27, 2012 / New York

Napoli Bern LLP was proud to participate in the Association’s 56th Annual Installation Dinner Dance where the new president and board members were introduced. The firm is also happy to support the Association’s Scholarship Program, which awards scholarships to high school and college students who have demonstrated academic excellence.

The New York Cit y Police Museum May 9, 2012 / New York

Marc J. Bern of Napoli Bern LLP was the Co-Chair of the 3rd Annual Police Hero Awards Gala, which honored Survivors of the Shield, Margo & John Catsimatidis and Kelsey Grammer. Museum Board Member Bern and the firm are actively committed to helping the Museum realize its Mission to preserve the history of the New York City Police Department through educational programming and exhibitions.

FealGood Foundation July 2011 / New York

Napoli Bern LLP continues to support the FealGood Foundation whose primary mission is to spread awareness and educate the public about the 9/11 first responders. The firm also generously donated to the 9/11 Responders Remembered Park Wall, which honors First Responders who have died from illnesses as a result of working at Ground Zero. Along with their families, the wall recognizes their dedication and commitment when faced with the momentous challenge of clearing the destruction at the World Trade Center site.

Memory Remains: 9/11 Artifacts at Hangar 17 September 8, 2011 - January 8, 2012 / New York

The Memory Remains exhibition was made possible with support from Paul J. Napoli & Marc J. Bern – Napoli Bern LLP, the National Endowment for the Arts, the Institut Ramon Llull, the Government of Spain – Ministry of Culture, the Joseph and Joan Cullman Foundation for the Arts and with public funds from the New York City Department of Cultural Affairs in partnership with the City Council. The exhibit was presented in association with the Port Authority of New York and New Jersey.

9/11 Memorial Benefit Dinner September 7, 2011 / New York

The firm is proud to have been the 2011 9/11 Memorial Benefit Dinner Benefactor. Napoli Bern LLP is a Sponsor of the 9/11 Memorial, which was dedicated on September 11, 2011 in a special ceremony for victims’ families. The design was chosen from 5201 design submissions from 63 nations.

Special Announcement / 17


By fadwebsite.com August 24, 2011

Memory Remains at The Imperial War Museum

FDNY fire truck 37803

T

Composite 37802

Yellow cab 37811

Source

he empty shell of Hangar 17 at JFK Airport became a storehouse of memories

when it was filled with the material cleared from the World Trade Center site following the September 11th attacks on New York City.

Marking the tenth anniversary of 9/11, these photographs by Frances Torres explore inside the hangar and reflect on the emotional power of what remained, from personal belongings to steel girders distorted by the force of the attacks. The exhibition will also be on display at the International Center for Photography in New York and at the Centre de Cultura ContemporĂ nia de Barcelona. Memory Remains is presented in cooperation with the National September 11th Memorial & Museum and the International Center of Photography, in association with the Port Authority of New York & New Jersey. Original funding for Memory Remains was provided by the Government of Spain - Ministry of Culture, the Institut Ramon Llull, and the John and Margo Catsimatidis Foundation. A Book of the same name Memory Remains is published by National Geographic.

fad

Marking the tenth anniversary of 9/11, these photographs by Frances Torres explore inside the hangar and reflect on the emotional power of what remained, from personal belongings to steel girders distorted by the force of the attacks. Original funding for Memory Remains was provided by Paul J. Napoli & Marc J. Bern -Napoli Bern LLP.

Folded Steel Column

18 / Phil anthropy

photography Š Francesc Torres / randomhouse .com / courtesy of the National September 11 Memorial Museum

P hi l anthropy

Frances Torres Memory Remains at The Imperial War Museum


P hi l anthropy

Helping 9/11 Ill and Injured an Uphill Task Despite challenges, attorneys Bern and Napoli are waging a war for justice for first responders. By Cynthia Brown October 2011

Source

American Police Beat

N

o one was surprised when eight years ago, a police officer who had con-

tracted cancer while working on the search and recovery effort at the World

Trade Center site knocked on the doors of Napoli Bern when he had nowhere else

Snapshot

to turn.

Marc Bern and Paul Napoli met with the officer. It turns out he had gone to see several other attorneys and none of them would take his case. Marc and Paul have been friends and colleagues for a long time. Their law firm goes to bat for people who have been seriously injured by harmful drugs, chemicals and other toxic substances as well as those who have been victims of financial fraud. They have been squaring off against some of the most powerful interests in the U.S., if not the world, for tens of thousands of victims for close to 30 years. Ground Zero may have been cleaned up, but the police officers, firefighters

“We have represented clients who have been harmed by diet drugs, pregnant mothers who were prescribed anti-depressants like Paxil and then gave birth to babies with serious

and other first responders who crawled

deformities, and people who developed cancer after being exposed to ionizing radiation

through rubble searching for bodies

spewing out of a nuclear power plant,” Bern explains.

are still fighting for coverage and compensation.

During his career, Marc has tried more than 100 cases before a jury and has won hundreds of judgments in excess of $1 million each for sick and injured people. “We are very proud that we have been able to win generous financial settlements over the years on behalf of people who have come to us for help after suffering a wide range of injuries,” Paul Napoli says. “It’s a track record we are proud of.” “When that police officer showed up at our door the Victims Compensation Fund had been closed,” Marc explained, “People like this officer had no way to get compensation for the serious illnesses they were getting.” “We could understand why the other lawyers were reluctant to take these battles on,” Bern continued. “These cases are incredibly expensive to pursue. It’s very difficult to

Attorneys Marc Bern (right) and Paul

prove beyond a doubt that a cancer or other illness was caused by exposure to a specific

Napoli (left) are proud to be represent-

toxic substance.

photography courtesy American Police Beat

ing the men and women who sacrificed

“On top of that you are going up against some formidable foes like New York City who

so much on September 11, 2001.

have enormous resources at their disposal. But on September 11 our offices were half a

Their desire to see that the real heroes of 9/11 would always be remembered prompted Paul J. Napoli and Marc J. Bern to make a generous gift of $200,000 to the New York City Police Museum in May.

duty and obligation to try and get justice for New York City’s Bravest and Finest.”

block away from the site. We had a constant reminder of the attacks and we felt it was our Shortly after that first police officer approached Marc and Paul about representation, the flood gates opened. Eight years later the firm is representing thousands of police officers and other first responders who became ill after working at the site in lower Manhattan and the Fresh Kills Landfill in Staten Island. Their work, which both Marc and Paul agree has become more like a mission, has been costly and if they don’t win a settlement on behalf of the client, the firm does not recoup the millions of dollars – now close to $35 million – they spent on the complicated litigation. While the total monetary investment made by Napoli Bern has topped $35 million, the personal sacrifices – long hours and time away from their families – have been great as well. Continue reading at NapoliBern.com

Phil anthropy / 19


Groun d Z e ro

NY Lawyers Working Hard to Seal the Deal on 9/11 Settlement By Mark Hamblett November 8, 2010

A

Source

n unprecedented effort to persuade some 10,000 plaintiffs who responded

to the World Trade Center terror attacks to accept a $712.5 million settlement of their respiratory illness claims is nearing the finish line.

Firefighters, police and cleanup workers who toiled in the pit at Ground Zero face a filing

deadline today to opt in to the settlement, and the lead plaintiffs’ lawyer said last week that he expects to meet the 95 percent participation level required to make the settlement effective. “We’re getting a lot of releases, we have over 8,500 in hand and I expect by [today] to have a lot more,” said Paul Napoli of Worby Groner Edelman & Napoli Bern. “I’m confident that, at the end of the day, we are going to get 99 to 100 percent.” Still, campaigning for the settlement in In re World Trade Center Disaster Site Litigation, 21 MC 100, continued down to the wire as the firm held one-on-one meetings with clients

New York Law Journal

Paul Napoli of Worby Groner Edelman & Napoli Bern, “I’m confident that, at the end of the day, we are going to get 99 to 100 percent.”

at its own offices and in rented hotel conference rooms and ballrooms. On Wednesday night, lawyers were in Nassau County and on Staten Island on Thursday. Further meetings were scheduled during the weekend in Manhattan, Queens, Brooklyn and the Bronx. Mr. Napoli’s firm, serving as co-liaison plaintiffs’ counsel, represents the vast majority of the claimants in the seven-year-old litigation. Nicholas Papain and Andrew J. Carboy of Sullivan Papain Block McGrath & Cannavo, represent some 679 police and firefighters who have, or fear they will have, respiratory and other illnesses from inhaling the toxic dust and ash produced by the collapse of the twin towers on Sept. 11, 2001. About 300 additional plaintiffs are represented by a half dozen other law firms. One lawyer involved in the litigation, who asked not to be named because of the sensitivity of the last-minute push, said attorneys heard comments from several people about how hard everyone—plaintiffs’ and defense attorneys and the court—was pushing the settlement. “Well, at a certain point, yeah, guilty as charged,” the lawyer said. “They negotiated hard for this thing for over two years and, at the end of the day, people should not be surprised they are pushing for it. They think it’s in everyone’s best interest to do it. They think this is the best settlement [the plaintiffs] are going to get.” It has taken more than two years for the plaintiffs’ lawyers to negotiate a settlement with New York City and its contractors and lawyers for the World Trade Center Captive Insurance Co., an entity formed to manage insurance costs associated with the response to the terror attacks and funded by a $1 billion grant from the Federal Emergency Management Agency (FEMA). The parties thought they had reached a final agreement in early 2010. But on March 19, Southern District Judge Alvin K. Hellerstein stunned Mr. Napoli; James Tyrrell of Patton Boggs, who is the city’s lead outside counsel; and the lead lawyer for the WTC Captive, Margaret Warner of McDermott Will & Emery, when he rejected the proposed deal. Mr. Tyrrell questioned the judge’s authority to intervene in a non-class action, mass tort settlement. But the judge, whose dockets have been consumed for almost nine years by a variety of Sept. 11 litigation, said that “9/11 is different.” Continue reading at NapoliBern.com

20 / GROUND ZERO

It has taken more than two years for the plaintiffs’ lawyers to negotiate a settlement with New York City and its contractors and lawyers for the World Trade Center Captive Insurance Co.


Most Sept. 11 Responders Settle Suits Over Dust By CBS News Team November 8, 2010

Source

CBS News

“The deal will resolve an overwhelming majority of the lawsuits over the city’s failure to provide protective equipment to the army of construction workers, police officers and firefighters who spent months clearing and sifting rubble after Sept. 11, 2001.”

M

ore than 10,000 workers exposed to the tons of toxic dust that blanketed

ground zero after the World Trade Center fell have ended their bruising legal

fight with New York City and joined a settlement worth at least $625 million,

officials said Friday. The deal will resolve an overwhelming majority of the lawsuits over the city’s failure to provide protective equipment to the army of construction workers, police officers and fire-

fighters who spent months clearing and sifting rubble after Sept. 11, 2001. Among the thousands who sued, claiming that soot at the site got into their lungs and made them sick, more than 95 percent eligible for the settlement agreed to take the offer. Only 520 said no or failed to respond. City officials and lawyers for the workers said they welcomed a resolution to a case that had pitted New York and a long list of demolition companies against the very men and women who helped lower Manhattan recover. “This settlement is a fair and just resolution of these claims, protecting those who came to the aid of this City when we needed it most,” Mayor Michael Bloomberg said in a statement. Paul Napoli, a senior partner with the law firm representing most of the workers, called the settlement “the best result, given the uncertainty of protracted litigation.” The settlement, which has been on the table since the spring, won approval by the thinnest of margins. Under terms of the deal, it would only become effective if at least 95 percent of eligible plaintiffs signed on. It just cleared that hurdle, with 95.1 percent. The settlement will provide at least $625 million to the workers, although related deals with other defendants, including the Port Authority of New York and New Jersey, will likely boost that total to $725 million or more. A majority of the money will come from a special $1 billion fund set up by Congress and paid-for by the American people. Workers could have qualified for an even larger total, topping $800 million, if enough workers had accepted the offer. The payment amount was based partly on how many agreed to join. The deadline to opt in to the deal was Tuesday. The results were withheld from the media and public for three days while lawyers loaded documents into a computer system and verified the numbers. Barring an act of Congress, the settlement will be the largest pool of compensation for people who fell ill in the years after their service at the trade center. The U.S. Senate is considering legislation, already passed in the House of Representatives, that would authorize as much as $7.4 billion in medical care and payments to the sick. Thousands of people believe they have illnesses caused by trade center dust. The lawsuits cited hundreds of different ailments, both serious and mundane, with the most common being a respiratory problem similar to asthma. Under the deal, the plaintiffs will be spared the tough task of proving that their illnesses were related to their work at ground zero. Scientists have documented elevated rates of asthma among ground zero workers and a decline in lung capacity among many firefighters but are undecided about other diseases. The hurdle of proving a cause loomed especially high for people with common illnesses such as cancer, which doctors have not connected to the dust.

GROUND ZERO / 21


Groun d Z e ro

9/11 Workers Approve Settlement with New York City By Jesse Solomon November 19, 2010

A

Source

settlement in New York City will pay out hundreds of millions of dollars to

ground zero workers exposed to toxic debris after the September 11, 2001, terrorist attacks, lawyers said Friday.

Plaintiffs narrowly approved the deal after facing a Tuesday night deadline that required

95 percent of some 10,000 people who worked at ground zero to approve the measure, according to Marc Bern, an attorney for the plaintiffs. In March, U.S. District Court Judge Alvin Hellerstein rejected an earlier settlement, saying that it did not do enough to address the workers’ ailments. Friday’s agreement concludes a seven-year fight between the city and first responders, who have said they were not properly outfitted for rescue and cleanup efforts after the 9/11 attacks, leaving them exposed to toxic dust that later prompted respiratory health issues. The deal paves the way for at least $625 million in city payouts. “It’s a fantastic deal for everybody,” Berns said. “Is it perfect? No. Is there a perfect deal?

CNN

New York City Mayor Michael Bloomberg called the deal “a fair and just resolution of these claims, protecting those who came to the aid of this city when we needed it most.”

No. But this is as good a deal as you’re going to get.” Former New York City Police Department Detective John Walcott, who has leukemia, was less enthusiastic. “There’s too much risk and no guarantees,” and he rejected the settlement because he did not trust how the funds were going to be allocated, he said. Kenny Specht, a former firefighter suffering from thyroid cancer, said he signed on to the settlement to avoid continued litigation. “I supported the settlement because it was the only game in town,” he said. “What you’re being offered is not everything you deserve, but your case won’t get dismissed.” New York City Mayor Michael Bloomberg called the deal “a fair and just resolution of these claims, protecting those who came to the aid of this city when we needed it most.” “We will continue our commitment to treatment and monitoring of those who were present at ground zero,” Bloomberg said on Friday. Congressional reaction to the announcement came quickly. “The agreement reached today on the 9/11 settlement is a positive step for many ailing first responders — but the problem isn’t over,” New York Reps. Jerrold Nadler, Peter King and Carolyn Maloney said in a joint statement. “Nearly everyone agrees that the settlement does not provide adequate funding to fully compensate those who are injured among the more than 10,500 plaintiffs in this case, nor does it cover the tens of thousands of 9/11 responders and survivors who are injured but have not filed lawsuits.” New Jersey Sen. Frank Lautenberg praised the deal, pledging to “continue working to pass the James Zadroga 9/11 health bill in the Senate to create a long-term solution that meets our responsibility to the heroes of September 11th.” Those who signed onto Friday’s settlement would still be eligible for the James Zadroga 9/11 Health and Compensation Act. If passed, the bill would provide $7.4 billion in aid and medical coverage for 9/11 workers and survivors exposed to toxic substances after the World Trade Center attacks. The House approved the measure on a mostly partisan 268-160 vote in September. Earlier this week, Bloomberg and state lawmakers called on the U.S. Senate to pass the bill.

22 / GROUND ZERO

Those who signed onto Friday’s settlement would still be eligible for the James Zadroga 9/11 Health and Compensation Act.


9/11 Health Deal Gets OK Ground Zero workers will receive up to $815 Million as 95.1% accept settlement By Chad Bray, —Devlin Barrett contributed to this article November 20 – 21, 2010

Source

Wall Street Journal, Greater New York

“We negotiated for over two years to achieve this settlement for our clients, which we truly believe is the best result, given the uncertainty of protracted litigation,” said Paul Napoli, one of the lead lawyers for the workers.

M

ore than 95% of Ground Zero workers agreed to accept a settlement of

long-running litigations over respiratory diseases and other injuries suffered in

recovery operations following the Sept. 11, 2001, terrorist attack.

A report released Friday said 95.1% of 10,563 eligible plaintiffs agreed to settlement

payments of at least $625 million and possibly as much as $815 million. Approval by at least 95% of the workers was needed under the settlement terms. “We negotiated for over two years to achieve this settlement for our clients, which we truly believe is the best result, given the uncertainty of protracted litigation,” said Paul Napoli, one of the lead lawyers for the workers. More than 10,000 workers sued the city and its contractors, as well as other related parties, for failing to adequately protect them while they worked at the World Trade Center site in the months following the 2001 terrorist attack. Many workers claim to be suffering asthma, blood cancers and other illnesses as a result of inhaling the toxic dust at the site. The main settlement with the city and its contractors is worth at least $625 million and an additional $103 million is available through settlements with related parties over Ground Zero debris, including the Port Authority of New York and New Jersey. The city’s settlement could increase to as much as $712.5 million, depending on how many people opt into the settlement. It’s possible the number of people participation could increase in the coming weeks. Someone suffering from serious lung disease as a result of injuries suffered while working at the former World Trade Center site could recover more than $1 million under the settlement with the city and its contractors. The settlement comes as New York lawmakers are trying to push through legislation in Congress that would provide health care and separate compensation to sick workers. Last week, U.S. District Judge Alvin Hellerstein in Manhattan agreed to extend the settlement deadline by a week for police officers, firefighters and other workers to accept the terms. “This settlement is a fair and just resolution of these claims, protecting those who came to the aid of this City when we needed it most,” Mayor Michael Bloomberg said in a statement.

GROUND ZERO / 23


By Paul Napoli, Esq. and Brian Crosby, Esq. (Napoli Bern Ripka LLP) June 1, 2011

O

n Jan. 2, 2011, President Obama signed into law the James Zadroga 9/11

Health and Compensation Act of 2010, P.L. 111-347, providing a long-awaited

Source

Westlaw Journal® (Formerly Andrews Litigation Reporter)

victory for responders, victims, survivors, workers and other individuals affected

by the collapse of the World Trade Center towers in the Sept. 11 terrorist attacks. With the enactment of Zadroga, the Sept. 11 Victim Compensation Fund of 2001 will reopen.

Title IV of P.L. 107-42, enacted shortly after the 2001 terrorist attacks, established the “original” Sept. 11 Victim Compensation Fund of 2001. That VCF, however, was closed to new claims by statutory mandate Dec. 22, 2003. Subsequently, and prior to the recent enactment of Zadroga, the only recourse available to the thousands of injured rescue, recovery and debris-removal workers and volunteers was through costly and lengthy litigation. Zadroga now allows for an alternate route to litigation: compensation through legislation. While not to be discussed here, another momentous perk to Zadroga is health benefits under the World Trade Center Health Program. The aim here is to summarize and highlight certain important aspects of the VCF as amended under the newly enacted Zadroga.

Before the enactment of Zadroga, the only recourse available to the thousands of injured rescue, recovery and debris-removal workers and volunteers was through costly and lengthy litigation.

This type of federal no-fault compensation fund legislation is historic but not un-precedented. Zadroga follows in the foot-steps of other notable acts such as the Price-Anderson Nuclear Industries Indemnity Act, the National Vaccine Injury Compensation Program and the War Hazards Compensation Act of 1942. Zadroga’s Title II reopens the VCF. Title II does not replace the original VCF; rather, it amends and supplements certain provisions of Title IV of the original VCF. Section 403 of the original VCF provides the still-applicable purpose of the VCF: “to provide compensation to any individual (or relatives of a deceased individual) who was physically injured or killed as a result of the terrorist-related aircraft crashes of Sept. 11, 2001.” This simply stated purpose, however, becomes more complex in light of the provisions concerning eligible “individuals” under the VCF and other requirements. Section 405(c) discusses eligibility for compensation in general. Eligibility generally hinges on whether the claimant: • Meets the definition of “individual.” • Meets the timing and other eligibility requirements as provided under the act. The following will summarize these components of eligibility.

Joseph Zadroga speaks at a news conference Nov. 29, 2010, calling for the passage of the bill named after his son, James Zadroga, a New York City police detective who died of a respiratory disease he contracted during recovery operations at ground zero.

Continue reading at NapoliBern.com

Paul Napoli is a senior partner of Napoli Bern Ripka LLP in New York. As the plaintiffs’ co-liaison counsel in the In re World Trade Center Disaster Site Litigation, he was the lead attorney responsible for achieving settlements totaling more than $800 million for injured WTC workers.

24 / GROUND ZERO

photography REUTERS/ Vic tor Fraile , REUTERS/Larry Downing (Zadroga ) Article and Image reproduced from Volume 29, Issue 8 of Wes tl aw Journal , Copyright: Original Sources

Groun d Z e ro

Compensation Through Legislation for 9/11 Responders and Victims: An Analysis of Zadroga


WTC Lead Counsel Applauds Zadroga Advisory Committee’s Recommendation that WTC Related Cancers Be Covered Recommendation by WTC Advisory Panel to include Cancer treatment in Zadroga Bill Benefits is great news, say WTC Plaintiffs’ Lead Counsel By Worby Groner Edelman & Napoli Bern, LLP March 26, 2012

Source

Yahoo!® Finance

“Of course, our clients’ experiences and illnesses have demonstrated to us and to those others who have been working with these cases that there is a strong link between their exposures at the WTC site and developing a number of different cancers,” said Senior Partner Paul. J. Napoli.

W

orby Groner Edelman & Napoli Bern, LLP, Lead Counsel for Plaintiffs

in the World Trade Center Disaster Litigations, today announced its strong support for the Draft Report release by the World Trade Center (WTC) Health

Program Scientific/Technical Advisory Committee (STAC). Trade Center Disaster Site Litigations, today announced its strong support for the Draft Report release by the World Trade Center (WTC) Health Program Scientific/Technical Advisory Committee (STAC). That report, provided at the request of the Administrator of the James Zadroga 9/11 Health and Compensation Law of 2010 (“Zadroga Act”) recommends that the Zadroga program provide coverage for treatment and monitoring of some 20 cancers believed related to the toxic exposures suffered by first responders and other workers at the site of the World Trade Center during rescue, recovery and debris removal activities following the 9/11 terrorist attacks. Pending a further hearing scheduled for March 28, 2012, the Committee’s initial recommendations are that cancers of the respiratory system (including nose, nasal cavity and middle ear, lung and bronchus, pleura, trachea, mediastinum and other respiratory organs be listed as WTC-related conditions. These cancers are associated with exposure to many carcinogenic agents of concern at the WTC, including arsenic, asbestos, beryllium, cadmium, chromium, nickel, silica dust and soot. The respiratory tract is also the major site for acute and chronic toxicity resulting from WTC-exposures, including chronic nasopharyngitis, upper airway hyperreactivity, chronic laryngitis, interstitial lung disease, “chronic respiratory disorder - fumes/vapors”, reactive airways disease syndrome (RADS) and chronic cough syndrome. The committee has also recommended that certain cancers of the digestive system, including esophagus, stomach, colon and rectum, liver and intrahepatic bile duct, retroperitoneum, peritoneum, omentum and mesentery be listed as WTC-related conditions. The Committee also noted that gastrointestinal reflux disease (GERD) is associated with cancer of the esophagus, especially if it progresses to Barrett esophagus. Since cancer of the distal esophagus, gastroesophageal junction and gastric cardia share common risk factors, the Committee listed GERD as a WTC-related condition for stomach as well as esophageal cancer. More information, and a copy of the Committee’s draft report can be found at the National Institute for Occupational Safety and Heal (“NIOSH”) website (URL): http://www. cdc.gov/niosh/docket/archive/docket248.html. “Of course, our clients’ experiences and illnesses have demonstrated to us and to those others who have been working with these cases that there is a strong link between their exposures at the WTC site and developing a number of different cancers,” said Senior Partner Paul J. Napoli. “We are gratified to see that the scientific community and the Zadroga Administrators are now taking steps to be sure appropriate coverage will be available to all WTC responders for all of their resulting injuries,” Napoli continued. “We have fought long and hard for these heroic WTC responders and we are so glad to know that the Zadroga program is now taking proper steps to provide adequate coverage for all WTC injuries.”

GROUND ZERO / 25


S ec uriti e s

Analysis: U.S. Brokerage’s Strategy Could Redefine ‘Customer’ By Suzanne Barlyn March 21, 2012

A

Source

series of victories by Morgan Keegan & Co is calling into question who can be

considered a “customer” in securities arbitration cases.

Thomson Reuters News & Insight featuring content from Westlaw

Most recently, a case involving a partner in the Lion Fund, a hedge fund, led to

an award totaling $206,000 for Corbin Robertson III for personal losses stemming from a

group of money-losing bond funds tied to allegations of fraud. The award was a small fraction of the $4.9 million he and the fund sought from a securities arbitration panel. In its decision, the panel concluded that only Robertson could be considered a Morgan Keegan customer. It was a major victory for Morgan Keegan, which is being sold by Regions Financial Corp to Raymond James Financial Inc. The brokerage has been battling a flood of cases tied to bond funds it underwrote and sold. The funds, heavily invested in risky subprime loans, were the subject of a $200 million civil regulatory fine. Morgan Keegan’s success turns on a controversial argument: Investors who buy Morgan Keegan funds through other brokerages are not Morgan Keegan’s customers and, therefore,

“Presumably courts and FINRA should interpret the customer rule exactly as its written — as everyone who is not a broker or a dealer, “said Adam Gana, senior litigation counsel for NBRS in New York.

shouldn’t be allowed to file arbitration claims against it. The argument has been successful in other Morgan Keegan cases, including one that reversed a $9.2 million award to a large group of investors, only two of whom were not direct Morgan Keegan customers. These wins highlight the ambiguity of a Financial Industry Regulatory Authority arbitration rule that defines the term “customer.” A brokerage is required to arbitrate in FINRA’s forum when a customer requests the arbitration. An interpretation in a 2001 federal court opinion suggests there must be a “brokerage or investment relationship” between the parties for an investor to be considered a customer. FINRA’s only guidance is a rule that says “customer shall not include a broker or a dealer.” “Presumably, courts and FINRA should interpret the customer rule exactly as its written — as everyone who is not a broker or a dealer,” said Adam Gana, senior litigation counsel for Napoli Bern Ripka Shkolnik LLP in New York. If that happens, it would clarify that FINRA arbitration could extend to investors who bought securities underwritten by FINRA members through other brokerages. Gana has already appealed two rulings that deemed his clients non-customers and will attempt to persuade federal judges to consider this literal definition of “customer.” A FINRA spokeswoman declined to comment on the rule and its interpretations.  

Not Our Customer A 2010 ruling by a FINRA arbitration panel foreshadowed the March 16 ruling on Robertson’s award. In the earlier ruling, the panel deemed that Morgan Keegan was “not associated” with the accounts, securities or conduct related to the Lion Fund’s purchase of securities. Those funds were not held in Morgan Keegan brokerage accounts. That left just Robertson’s claims for personal losses because his money-losing Morgan Keegan funds were held in Morgan Keegan brokerage accounts. A lawyer for the Lion Fund and Robertson did not respond to a requests comment. The not-a-customer strategy has already also worked in other cases, including the ruling, by a federal district court in October, that overturned the $9.2 million ruling against the Morgan Keegan. The investors in that case have appealed. Continue reading at NapoliBern.com

26 / Securities

Gana has already appealed two rulings that deemed his clients non-customers and will attempt to persuade federal judges to consider this literal definition of “customer.”


Napoli Bern Ripka Shkolnik LLP Files Arbitration Claim Against David Lerner Associates for the Sale of the Apple REITS By Adam J. Gana, Esq. August 29, 2011

Source

Globe Newswire

Napoli Bern Ripka Shkolnik, LLP filed an arbitration claim on behalf of an elderly beneficiary of a trust against David Lerner Associates, Inc. for unsuitable recommendations, misrepresentations and other violations in connection with the Apple Real Estate Investment Trusts (REITs).

N

apoli Bern Ripka Shkolnik, LLP (NBRS) filed an arbitration claim on behalf

of an elderly beneficiary of a trust against David Lerner Associates, Inc. (“David Lerner”) for unsuitable recommendations, misrepresentations and other violations

in connection with the Apple Real Estate Investment Trusts (REITs). Since 1992, David

Lerner has earned nearly $600 million in commissions for selling the Apple REITs. NBRS is currently investigating Apple REIT Six, Apple REIT Seven, Apple REIT Eight, Apple REIT Nine and Apple REIT Ten, which almost exclusively invested in extended stay hotels. According to the complaint, the Apple REITs are alleged to be improperly valued and were sold to investors through misleading practices.  On May 27, 2011, FINRA’s Department of Enforcement filed a complaint against David Lerner for the sale of the Apple REITs and alleged David Lerner targeted unsophisticated and elderly customers, recommended unsuitable investments without adequate due diligence, made material misrepresentations and omissions, and maintained unfair trade practices. According to FINRA’s complaint, David Lerner priced the Apple REITs on client’s statements at $11 per share despite major fluctuations in the commercial real estate market, net income declines, increased leverage through borrowings, and return of capital to investors through distributions. The beneficiary of the trust, like many other investors allegedly, was not made aware of these risks and now sues to recover the initial investment. The law offices of Napoli Bern Ripka Shkolnik, LLP are available to represent defrauded David Lerner and Apple REIT investors.  Napoli Bern Ripka Shkolnik, LLP attorneys have successfully represented thousands of investors in claims against their brokers and brokerdealers for claims, including suitability, misrepresentation and/or omissions, churning, negligence, breach of contract, breach of fiduciary duty, and other violations of the law. You may have a claim if you invested in: Apple REIT 6 Apple REIT 7 Apple REIT 8 Apple REIT 9 Apple REIT 10

Securities / 27


S ec uriti e s

Non-Listed REITs Under Fire, Reports Napoli Bern Ripka, LLP By Adam J. Gana, Esq. June 22, 2011

N

Source

apoli Bern Ripka, LLP has been investigating claims that broker-dealers are im-

properly placing unsuspecting investors into non-listed REITs. Non-listed REITs have recently begun to draw the attention of regulators and dissatisfied investors

alike. Regulators have become increasingly concerned as brokers potentially mislead investors by recommending non-listed REITs as low-cost and low-risk investments.  Non-listed REITs are attractive cash cows for some brokerage firms. It is not uncommon for 15% of an individual’s investment to be consumed by commissions and fund expenses padding the bottom lines of brokerage firms rather than being put to work for investors.

Because non-listed REITs do not trade on exchanges, they are rarely revalued and may appear very stable to investors.  One REIT that is under investigation by regulators is Apple REIT, sold by David Lerner & Associates (DLA). DLA has come under fire by the Financial Industry Regulatory Authority (FINRA) for its Apple REIT sales practices of “targeting unsophisticated and elderly customers with unsuitable sales of the illiquid security.” In its action against DLA, FINRA also noted that DLA “earns 10 percent of all offerings of Apple REIT securities as well as other fees. Apple REIT sales have generated $600 million…accounting for 60 to 70 percent of DLA’s business annually since 1996.” Napoli Bern Ripka, LLP is investigating the following REITs: American Realty Capital Trust

Healthcare Trust of America

AmREIT

Hines Global REIT

Apple REIT Eight

Hines REIT

Apple REIT Nine

IMH Secured Loan Fund LLC

Apple REIT Seven

Inland American

Apple REIT Six

Inland Diversified

Behringer Harvard Multi-Family REIT I

Inland Western

Behringer Harvard Opportunity REIT I

KBS REIT I

Behringer Harvard REIT 1

KBS REIT II

CB Richard Ellis Realty Trust

Lightstone Value Plus REIT

CNL Lifestyle Properties

Paladin REIT

Cole Credit Property Trust

Piedmont REIT

Cole Credit Property Trust II

Prime Group Realty Trust

Cole Credit Property Trust III

Shopoff Properties Trust

Concord Milestone Plus LP

Strategic Storage Trust

Cornerstone Core Properties REIT

TNP Strategic Retail Trust

Cornerstone Healthcare Plus REIT

W.P. Carey CPA 14

Desert Capital

W.P. Carey CPA 15

Dividend Capital Total Realty Trust

Wells REIT II

GC Net Lease REIT

Wells Timberland REIT

Grubb & Ellis Apartment REIT

Whitestone REIT

Grubb & Ellis Healthcare REIT II Napoli Bern Ripka, LLP has successfully advocated for its clients in a wide variety of claims involving financial products, brokerage services, and commercial disputes. The firm does not charge a legal fee unless it recovers money for its clients.

28 / Securities

Nasdaq OMX®

Because non-listed REITs do not trade on exchanges, they are rarely revalued and may appear very stable to investors.


The Essential Investment Guide We keep our clients informed.

O

ne of the great advantages of accumulated wealth is its ability to grow

through investing. Whether an individual, a family, a corporation, or other entity, the appropriate and effective allocation of monetary resources can help generate

income and affords people the opportunity of accomplishing many of the goals they set up for

themselves. Sometimes, however, investors can be the victims of securities violations by their brokers, brokerage firms, or the firms who develop, market, and sell investment products. Napoli Bern Ripka Shkolnik LLP developed The Essential Investment Guide to help investors better understand and navigate the investment world while also recognizing red flags that could indicate their broker or financial institution may not be handling investments correctly. For further information, visit NapoliBern.com/The-Essential-Investment-Guide or call (888) 529-4669.

Special Announcement / 29


Our attorneys have over 150 years of collective legal experience.

Serving Clients Locally from Offices Nationwide Headquarters Empire State Building / 350 Fifth Avenue / New York, New York 10118

NapoliBern.com / (888) 529-4669 Follow NB

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Š 2012 Napoli Bern Ripka Shkolnik LLP. Last Updated May 2012. All Rights Reserved. Attorney Advertising. Prior Results Do Not Guarantee Similar Outcomes.


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