COMMITMENTS AND CONTINGENCIES | 6 Months Ended |
Feb. 28, 2015 |
Commitments and Contingencies | |
COMMITMENTS AND CONTINGENCIES | |
5. 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 former California-based sales representatives filed suit against us on behalf of themselves and all other sales representatives who were employed by Acuity Specialty Products, Inc. in the State of California and similarly situated. In fiscal 2013, we settled the original two plaintiffs’ claims and paid the State of California fees under the California Labor Code Private Attorney General Act of 2004. 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 has appealed. |
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The ultimate resolution of the plaintiffs’ attorney fees associated with the California Sales Representative Litigation is uncertain. We are reserved for this matter based on a settlement offer to plaintiffs’ counsel. All other issues regarding this litigation have been resolved. |
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During the second quarter and first six months of fiscal 2014, we recorded charges of $3.8 million and $4.6 million, respectively, against earnings associated with legal defense and settlement costs related to the California Sales Representative Litigation. Of these charges, $1.0 million was classified within interest expense, net, in the condensed consolidated statements of operations for the three months ended February 28, 2014. The additional $2.8 million and $3.6 million in the three and six months ended February 28, 2014, respectively, were classified as selling, distribution and administrative expenses in the condensed consolidated statements of operations. |
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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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Certain of our subsidiaries are a party to environmental remediation orders with respect to certain facilities, as discussed below. We arrived at our current estimates with respect to these matters based on studies prepared by independent third party environmental consulting firms. Our estimates of the actual costs of remediation of these matters 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. |
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One of our subsidiaries has been named as a responsible party with respect to a facility located on Seaboard Industrial Boulevard in Atlanta, Georgia that it owns and currently uses in the manufacture of our products. 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. While it is reasonably possible that the total remediation cost could range up to $10.0 million, management’s best estimate of the total probable remediation costs continues to be $5.0 million. As of February 28, 2015, we recorded liabilities related to the remediation of this site in an undiscounted, pre-tax amount of $2.1 million. |
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One of our subsidiaries has been named as a responsible party with respect to our Aerosol Facility. With regard to the Aerosol Facility, 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. Testing subsequent to the fire has not shown a need to materially change our remediation efforts at the site. |
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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. |
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While it is reasonably possible that the total costs incurred by us in connection with the remediation of the Aerosol Facility and the Cartersville site could range up to an aggregate of $16.0 million, we recorded liabilities related to the remediation of these sites in an aggregate undiscounted, pre-tax amount of $7.0 million, which is management’s best estimate of total remaining remediation costs. Our recorded liabilities include the costs to rebuild the water treatment facility that was destroyed in the fire. |
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