COMMITMENTS AND CONTINGENCIES | 6 Months Ended |
Feb. 28, 2014 |
COMMITMENTS AND CONTINGENCIES | ' |
COMMITMENTS AND CONTINGENCIES | ' |
6. COMMITMENTS AND CONTINGENCIES |
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Litigation |
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We are subject to various legal claims arising in the normal course of business. We are self-insured up to specified limits for certain types of claims, including product liability, and are fully self-insured for certain other types of claims, including environmental, product recall, and patent infringement. Based on information currently available, it is the opinion of management that the ultimate resolution of pending and threatened legal proceedings will not have a material adverse effect on our results of operations, financial position, or cash flows. However, in the event of unexpected future developments, it is possible that the ultimate resolution of such matters, if unfavorable, could have a material adverse effect on our results of operations, financial position, or cash flows. |
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We establish accruals for legal claims when the costs associated with the claims become probable and can be reasonably estimated. The actual costs of resolving legal claims may be substantially higher or lower than the amounts accrued for such claims. However, we cannot make a meaningful estimate of actual costs or a range of reasonably possible losses that could possibly be higher or lower than the amounts accrued. In addition, from time to time we may incur expense associated with efforts to enforce our non-compete agreements. |
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California Sales Representative Litigation |
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In December 2010, two of our California-based sales representatives filed suit against us on behalf of themselves and on behalf of all other sales representatives who were employed by Acuity Specialty Products, Inc. in the State of California and similarly situated. Approximately 171 persons were members of the putative class proposed by the plaintiffs. Plaintiffs asserted two primary causes of action against us for (i) failure to reimburse work-related expenses (the “Expense Reimbursement Claim”) and (ii) failure to pay wages by reason of unlawful deductions from wages (the “Wage Deduction Claim”), as well as derivative claims under the California Labor Code Private Attorney General Act of 2004 (“PAGA”) for civil penalties and under the California Business and Professions Code for unfair business practices. The court denied the plaintiff’s motion for class certification. In fiscal 2013, we settled the original two plaintiffs’ claims for $48,000 plus interest. In addition, the Company paid State of California PAGA fees of approximately $275,000. The Court awarded the plaintiffs’ lawyers legal fees in the amount of $1,162,000 with respect to the lawsuit filed by the two California sales representatives. The Company believes that the award is excessive and intends to appeal. |
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In December 2012, 55 of the current and former sales representatives who were members of the putative class alleged in the first lawsuit filed a lawsuit against the Company in which they asserted the Expense Reimbursement Claim, the Wage Deduction Claim and an additional claim for improper wage statements on behalf of themselves individually. Between the date this suit was filed and January 23, 2014, we settled the claims of 19 of the plaintiffs and arbitrated the claims of another five. On January 23, 2014 we settled the claims against the Company of all but six of the remaining plaintiffs. Pursuant to the terms of the January 23, 2014 settlement agreement, we paid $1.7 million in cash, plus pre-judgment interest of approximately $826,000 to settle the claims. The January 23, 2014 settlement does not resolve the issue of the amount of fees to which the plaintiffs’ lawyers are entitled. That matter will be resolved by the court. The schedule for resolving the matter is not yet established. There are six remaining plaintiffs who were not covered by the January 23, 2014 settlement. The Company believes it will be able to resolve those cases for an amount that will not be material to the Company’s results of operations. |
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The ultimate resolution of the plaintiffs’ attorney fees associated with the California Sales Representative Litigation is uncertain. When the amount is determined, it may be material to the Company’s results of operations. The Company has reserved for this liability at the low end of the range. |
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During the second quarter of our fiscal 2014, we recorded a charge of $3.8 million against earnings associated with legal defense and settlement costs. Of the $3.8 million, $1.0 million is classified as interest expense, net and $2.8 million is classified as selling, distribution and administrative expenses on the condensed consolidated statement of operations. Since the inception of this case in fiscal 2011, the Company has incurred total costs associated with the California Sales Representative Litigation of approximately $10 million. Except for the issue associated with plaintiffs’ attorney fees which will be resolved by the courts, all significant matters have been resolved and we do not anticipate material expense in future periods. |
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Environmental Matters |
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General |
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Our operations are subject to federal, state, local, and foreign laws and regulations relating to the generation, storage, handling, transportation, and disposal of hazardous substances and solid and hazardous waste, and the remediation of contaminated sites. Permits and environmental controls are required for certain of our operations to limit air and water pollution, and these permits are subject to modification, renewal, and revocation by the issuing authorities. We will incur capital and operating costs relating to environmental compliance on an ongoing basis. Environmental laws and regulations have generally become stricter in recent years, and the cost of responding to future changes may be substantial. While management believes that we are currently in substantial compliance with all material environmental laws and regulations, and have taken reasonable steps to ensure such compliance, there can be no assurance that we will not incur significant costs to remediate violations of such laws and regulations, particularly in connection with acquisitions of existing operating facilities, or to comply with changes in, or stricter or different interpretations of, existing laws and regulations. Such costs could have a material adverse effect on our results of operations. |
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Superfund Sites |
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Certain of our subsidiaries are currently a party to federal and state administrative proceedings arising under federal and state laws enacted for the protection of the environment where a state or federal agency or a private party alleges that hazardous substances generated by our subsidiary have been discharged into the environment and a state or federal agency is requiring a cleanup of soil and/or groundwater pursuant to federal or state superfund laws. In each of these proceedings in which our subsidiary has been named as a party that allegedly generated hazardous substances that were transported to a waste site owned and operated by another party, either: (1) our subsidiary is one of many other identified generators who have reached an agreement regarding the allocation of costs for cleanup among the various generators and our potential liability is not material; (2) our subsidiary has been identified as a potential generator and the sites have been remediated by the Environmental Protection Agency or by a state for a cost that is not material; (3) other generators have cleaned up the site and have not pursued a claim against our subsidiary and our liability, if any, would not be material; or (4) our subsidiary has been identified as a potential generator but has been indemnified by its waste broker and transporter. |
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Environmental Remediation Orders |
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One of our subsidiaries has been named as a responsible party with respect to the facility located on Seaboard Industrial Boulevard in Atlanta, Georgia that it owns and currently uses in the manufacture of our products. Our subsidiary and the current and former owners of adjoining properties have agreed to share the expected costs and responsibilities of remediation. Further, our subsidiary has executed a Consent Order with the Georgia Environmental Protection Division (“EPD”) covering this remediation, and is operating under an EPD approved Corrective Action Plan, which may be amended from time to time based on the progression of our remediation. In May 2007, we accrued an undiscounted pre-tax liability of $5.0 million representing our best estimate of costs associated with subsurface remediation, primarily to remove, or secure, contaminants from soil underlying this property, and other related environmental issues. While it is reasonably possible that the total remediation cost could range up to $10.0 million, management’s best estimate of the probable total remediation costs continues to be $5.0 million. To date, we have expended $2.7 million of the $5.0 million accrual established in May 2007. Further sampling, engineering studies, and/or changes in regulatory requirements could cause us to revise the current estimate. We arrived at the current estimate based on studies prepared by independent third party environmental consulting firms. |
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One of our subsidiaries has been named as a responsible party with respect to its primary manufacturing location in Marietta, Georgia. With regard to this location, our subsidiary is responsible for the expected costs of implementing an Amended Corrective Action Plan that was conditionally approved by the EPD in June 2012 under the Georgia Hazardous Response Act. The State of Georgia has introduced a Voluntary Remediation Program (‘‘VRP’’) that provides for a risk-based approach toward environmental remediation. We believe the provisions of the VRP are applicable to the Marietta site. As of February 28, 2014, liabilities related to the remediation of the Marietta site presented within the condensed consolidated balance sheets reflect an undiscounted, pre-tax liability of $6.6 million, which represents our best estimate of remaining remediation costs for this site. We arrived at the current estimates based on studies prepared by independent third party environmental consulting firms. In the future, we plan to submit an application to enter the Marietta, Georgia site into the VRP. |
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Additionally, one of our subsidiaries previously conducted manufacturing operations at a facility in Cartersville, Georgia that has since been sold and where sub-surface contamination exists. Pursuant to the terms of the sale, the subsidiary retained environmental exposure that might arise from its previous use of this property. Management is preparing a plan to address sub-surface contamination at this location. Based on recent data, the contamination has migrated off site and is present at a greater depth than originally anticipated. In the future, we will submit an application to enter the Cartersville, Georgia site into the VRP. As of February 28, 2014, liabilities related to the remediation of the Cartersville site presented within the condensed consolidated balance sheets reflect an undiscounted, pre-tax liability of $0.4 million, which represents our best estimate of remaining remediation costs for this site. We arrived at the current estimates based on studies prepared by independent third party environmental consulting firms. |
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The actual cost of remediation of the Marietta and Cartersville sites could vary depending upon the results of additional testing and geological studies, the rate at which site conditions may change, the success of initial remediation designed to address the most significant areas of contamination, and changes in regulatory requirements. While it is reasonably possible that the total costs incurred by us in connection with these matters could range up to an aggregate of $16.0 million, management’s best estimate of total remaining remediation costs for these two sites combined is $7.1 million. |