/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/061013.mbx C L A S S A C T I O N R E P O R T E R Friday, October 13, 2006, Vol. 8, No. 204 Headlines ARISTOCRAT LEISURE: Investors' Fraud Suit Continues in Australia CALIFORNIA: Court Upholds Tuition Fee Law; Plaintiffs to Appeal CANADA: Pinel Fails to Block Swiss Ethics Report in Abuse Suit CHALLENGER MANAGED: Investors Sue Over Failed Penrith Purchase C.H. ROBINSON: Faces Sexual Harassment Litigation in S.D. Ohio CYBERSOURCE CORP: Ill. Judge to Hear Motion for Summary Judgment DENMARK: Minister Presents Parliament with Class Action Bill DIOCESE OF COVINGTON: Court Orders New Case for Attorneys' Fees ENCYSIVE PHARMACEUTICALS: Faces Securities Fraud Lawsuit in Tex. ILLINOIS: Ill. Judge Junks Claims in Dist. U46 Racial Bias Suit INDIANA COMPANIES: Federal Suit Filed Over House-Flipping Scheme MERCK & CO: Vioxx Users Refused Legal Standing in America MICROSOFT CORP: Wants "Conlin" Out of Consumer Antitrust Suit NEWS-PRESS: Ex-Reporter Files Labor Violations Suit in Calif. NTL INC: Oct. 23 Fairness Hearing Set for N.Y. Stock Suit Deal PAINCARE HOLDINGS: Continues to Face Securities Suits in Fla. PHILIP SERVICES: Ga. Court Allows Lawyers to Contact Plaintiffs QWEST COMMUNICATIONS: Court Awards $60M to Counsel in Stock Suit QWEST COMMUNICATIONS: Retirees Oppose Dismissal of ERISA Lawsuit SONY BMG: Quebec Court Approves XCP, MediaMax Lawsuit Settlement TECO ENERGY: Fla. Court Partially Dismisses Stock Fraud Suit TORCHMARK INC: Court Rules on Cancer Policies Suit Jurisdiction UNITED STATES: MNG Reimbursement Suit Continues in Federal Court WILLIAMS PRODUCTION: Faces Col. Lawsuit Over Unpaid Royalties WORLDCOM INC: Third Party Claims Fund Termination Date Extended * Schiffrin & Barroway Fortifies European Securities Practice Asbestos Alert ASBESTOS LITIGATION: Claims v. Ameron International Drop to 149 ASBESTOS LITIGATION: Conn. Court Upholds Wing Suit v. HB Fuller ASBESTOS LITIGATION: H.B. Fuller Accrues $992T for Liabilities ASBESTOS LITIGATION: Pending Claims v. GenCorp Increase to 155 ASBESTOS LITIGATION: Tex. Court Favors Armco Inc. in Brooks Suit ASBESTOS LITIGATION: La. Court Favors Eaton Corp in Britton Suit ASBESTOS LITIGATION: N.Y. Court Reverses Decision in Leeber Suit ASBESTOS LITIGATION: Court Rejects Grace Appeal in $54M Cleanup ASBESTOS LITIGATION: Fla. City Okays Settlement in CARES Lawsuit ASBESTOS LITIGATION: Ex-worker Fears Exposure in Trebor Factory ASBESTOS LITIGATION: NSW Govt. Rejects Alternative Hardie Scheme ASBESTOS LITIGATION: Council Says 200 U.K. Schools Have Hazards ASBESTOS LITIGATION: WCB Hits Snag in Quest for Ex-Grace Workers ASBESTOS LITIGATION: Armstrong World to Allocate $738M to Trust ASBESTOS LITIGATION: Suits v. RPM Int'l. Units Rise to 10,934 ASBESTOS LITIGATION: RPM Int'l. Records $58.5M Current Liability ASBESTOS LITIGATION: Ind. Man's Kin Sues 96 Firms in Ill. Court ASBESTOS LITIGATION: Man Appeals for Payout Bid v. Bromley NHS ASBESTOS LITIGATION: 5-Year Freeze on U.K. Compensation Lifted ASBESTOS LITIGATION: Minn. Man Sues 77 Companies in Ill. Court ASBESTOS LITIGATION: U.K. Man Gets T&N Payout for Wife's Death ASBESTOS LITIGATION: Eternit Creates CHF1.25M Fund for Employees ASBESTOS LITIGATION: EPA Charges $49T Penalty to 5 Ariz. Schools ASBESTOS LITIGATION: Japan Govt Offers Medical Exams to Retirees ASBESTOS LITIGATION: Eli Lilly & Co. to Launch Alimta in India New Securities Fraud Cases LOUDEYE CORP: Howard G. Smith Announces Wash. Stock Suit Filing LOUDEYE CORP: Scott + Scott Files Securities Fraud Suit in Wash. TVIA INC: Faces Securities Fraud Violations Lawsuit in Calif. ********* ARISTOCRAT LEISURE: Investors' Fraud Suit Continues in Australia ---------------------------------------------------------------- The respondents' defense in a class action against Australian slot machine maker Aristocrat Leisure Ltd. has been received and the lawyers are seeking further particulars in the case, according to information posted in the Web site of deListed, a division of BRG Pacific Pty Limited. In 2003, Maurice Blackburn Cashman Lawyers and litigation company IMF Australia, Ltd. confirmed it filed a class action writ against Aristocrat Leisure alleging that the company's market forecasts were false and misleading and that it failed to disclose all material information in a timely manner. The lawsuit alleges that the company misled shareholders by not keeping them fully informed before announcing earnings downgrades that wiped $1.5 billion (AU$2 billion) from the company's value in 2003. The lawsuit claims damages of $86.37 million (AU$115 million) for losses when shareholders sold their stock. The case was transferred to the Federal Court in Sydney. Later, the applicant applied to amend the class definition to delete the requirement that a group member must retain Maurice Blackburn Cashman to be a part of the class. This application was successful and the class definition was amended so that the case now applies to any person who acquired shares in Aristocrat during the period Sept. 20, 2002 to May 26, 2003 and who suffered loss as a consequence of Aristocrat alleged conduct. The Statement of Claim has been amended to claim losses incurred by shareholders who purchased shares between Feb. 19, 2002 (previously Sept. 20, 2002) and 26 May 2003. Aristocrat Leisure: 71 Longueville Road, Lane Cove, NSW, Australia, 2066, Phone: (02) 9413 6300, Fax: (02) 9420 1352. CALIFORNIA: Court Upholds Tuition Fee Law; Plaintiffs to Appeal --------------------------------------------------------------- The Yolo County Superior Court upheld a 2001 California law that allows public colleges and universities to charge in-state fees to undocumented immigrants, but plaintiffs' attorneys vow to appeal that decision. The law is the subject of a class action filed last December on behalf of out-of-state students who claimed that giving certain undocumented immigrants an in-state tuition break discriminated against legal U.S. residents who are charged a higher tuition. The class action was filed by former representative Brian Bilbray and his two college-age children against California's higher-education system. Mr. Bilbray accuses the system of discriminating students who were forced to pay out-of-state tuition rates because undocumented immigrants who met residency requirements were eligible for in-state tuition rates (Class Action Reporter, May 26, 2006). The suit alleges violation of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which essentially prohibits states from giving college benefits to illegal immigrants unless U.S. citizens and legal immigrants are eligible for such benefits, such as in-state tuition. However, Judge Thomas Warriner concluded that there was no indication Congress intended the Act or any other federal statute cited by the plaintiffs to determine resident tuition rates at state universities and community colleges. Plaintiffs' attorneys said they would appeal the ruling. Kris Kobach, an attorney for the Immigration Reform Law Institute, said the challenge will be filed within the next few weeks in the 3rd District Court of Appeal in Sacramento. For more details, contact Kris W. Kobach, Professor, University of Missouri - Kansas City School of Law, 5100 Rockhill Road, Kansas City, Missouri 64110, Phone: 816-235-1644, 816-235-5276. CANADA: Pinel Fails to Block Swiss Ethics Report in Abuse Suit -------------------------------------------------------------- A judge refused to grant Philippe-Pinel Institute's request for an injunction against a controversial Swiss report that attorneys say is key to a case against the maximum-security psychiatric hospital, CBC News reports. The report, from a Swiss psychiatrist and ethics expert, concludes that the psychiatric hospital broke basic ethical guidelines and treated the former patients inhumanely when they stayed at the institute. Philippe-Pinel had wanted to bar the report, arguing it reflects European standards that aren't binding in Quebec. It also cited that the report could be damaging to the institution's reputation. A former patient that was hospitalized at Philippe-Pinel in 2001 filed the lawsuit. The case is now being pursued as a class action on behalf of about hundreds of former patients at the institute. Ian-Kristian Ladouceur, a lawyer representing the plaintiffs, said as many as 600 other former patients are claiming to have been subjected to similar treatment during stays that spanned a four-year period between 1999 and 2002. When the patient who initiated the suit was released from hospital, he consulted a mental health advocacy group. The Quebec court accepted the class action he filed in 2003, however the claims have not been proven in a court of law. Mr. Ladouceur explained that in the course of the case expert opinions were sought and Montreal psychiatrists urged the legal team to consult with the Swiss psychiatrist, who wrote a report that characterized the patients' treatment as excessive and unreasonably controlling. Mr. Ladouceur said court proceedings are expected to start within the year. For more details, contact Ian-Kristian Ladouceur of Doyon, Guertin, Montbriand & Plamondon, 6337 Rue Saint Denis, Montreal, PQ H2S 2R8, Canada, Phone: (514) 277-4077. CHALLENGER MANAGED: Investors Sue Over Failed Penrith Purchase -------------------------------------------------------------- Maurice Blackburn Cashman filed on Sept. 13 a multi-million dollar class action against Challenger Managed Investments Ltd. in the Supreme Court of New South Wales, Australia. Challenger Managed Investments Ltd. is part of Challenger Financial Services Group, a leading Australian financial services company. A group of investors have come forward to file the class action to recover losses sustained after Challenger purchased the Penrith Mega Homemaker Centre in Sydney's western suburbs, with funds raised from the public. The investors are alleging that Challenger misled them to invest in the Centre by issuing a prospectus that did not warn them of some very significant risks associated with the Centre. There are at least another thousand people whose money was used by Challenger to purchase the Centre and who probably don't yet know about the action, a statement from Maurice Blackburn states. It is believed that 1600 people invested a total of almost $32 million in the Trust that purchased the Centre, and each investor lost about 60 cents in every dollar invested after the Centre was recently sold at a loss of around $10 million. Maurice Blackburn Cashman Principal, Rebecca Gilsenan, today said: "Thousands of family investors entrusted their retirement savings to a reputable company like Challenger. However, Challenger failed investors by not providing critical information in the prospectus about Council restrictions that affected the economic viability of the centre. Challenger did not provide investors with the information that they needed to make an informed decision about whether to invest their savings in the scheme. Anyone who invested in the Penrith Mega Homemaker Centre between November 2002 and December 2003 should come forward and stand up for their rights as investors." Barbara O'Sullivan, a 70 year old widow who invested $145,000 and the lead plaintiff in the class action, said: "I'm retired and responsible with my savings, and it just makes me cranky to think that this big investment company didn't tell me vital information before I made the decision to invest my savings. It's not only me who has been affected; my children and grandchildren have lost their inheritance." Ms. O'Sullivan suffered losses of at least $87,000. Charlie Gollow, Litigation Manager with IMF (Australia), who is funding the legal costs of the class action, said: "It's hard for small investors, who often have already lost their lifetime savings, to come together to mount expensive legal cases. IMF's funding will provide access to justice for these investors. The start of this class action is another signal that many people are willing to enforce their statutory rights and will no longer put up with being victims of this type of corporate behavior." Maurice Blackburn: http://www.mauriceblackburncashman.com.au C.H. ROBINSON: Faces Sexual Harassment Litigation in S.D. Ohio -------------------------------------------------------------- C.H. Robinson Worldwide was named as a defendant in a purported sexual harassment class action filed in U.S. District Court for the Southern District of Ohio, The Cincinnati Enquirer reports. The suit is on of many that were filed by women who work for or used to work for the Minneapolis-based transportation logistics company. These suits generally allege that the women were subjected to a male-dominated work place where pornography, sex jokes and sexually disparaging remarks were the norm. The latest suit, filed by Denise Smith on Oct. 6, 2006, states that she worked at Robinson's depot in Milford from June 2002 until the day she "felt compelled to resign" in May 2004. Attorneys Bruce Elfvin of Cleveland and Kell Simon of Washington, D.C., are Ms. Smith's legal representatives. Ms. Smith's complaint alleges that she endured an environment that she claims amounted to sexual harassment where male employees gathered around computers to view Web sites with images of naked women; and an assistant branch manager and another employee repeatedly sang a phrase referring to oral sex. Also, she claims, in the course of doing her job of calling people to schedule freight loads, she was given fake names descriptive of sexual acts. Managers and male workers, allegedly, regularly used derogatory words to describe women. Thus, the suit seeks an unspecified amount of back pay, punitive damages, lawyers' fees and reinstatement for Ms. Smith to her job. The company has vehemently denied the claims. According to company spokeswoman Angie Freeman they do not have a hostile work environment. The suit is "Smith v. C.H. Robinson Worldwide Inc., Case No. 1:06-cv-00672-HJW," filed in the U.S. District Court for the Southern District of Ohio under Judge Herman J. Weber. Representing the plaintiffs are Bruce B. Elfvin and Barbara Kay Besser of Elfvin & Besser, 4070 Mayfield Road, Cleveland, OH 44121, Phone: 216-382-2500, Fax: 216-381-0250, E-mail: bbe@elfvinbesser.com and babslaw@aol.com. CYBERSOURCE CORP: Ill. Judge to Hear Motion for Summary Judgment ---------------------------------------------------------------- Judge Daniel Stack of the Madison County Circuit Court set an Oct. 25 hearing on a request by Cybersource Corp. for summary judgment in a purported class action filed against it by former employee, The St. Clair Record reports. In 2000, PaylinX agreed to merge into Cybersource, a public company that helps businesses process payment transactions over the Internet. Under the merger, PaylinX share options would turn into an option to buy shares of Cybersource. Half the Cybersource shares would accelerate or vest when the merger closed. It closed Sept. 18, 2000, with company stock at $10.75. But, at the stock conversion in November, it had dwindled to $1.85. In 2002, John Hoffman of Korein Tillery filed a lawsuit on behalf of Brian Wilgus, a test engineer for PaylinX, claiming that a delay in converting stock prevented Mr. Wilgus and others from immediately exercising their options. Also, Mr. Hoffman claims that the company failed to establish necessary E-trade accounts. The suit proposed a class action on behalf of about 75 former PaylinX employees at Cybersource. Judge Phillip Kardis certified the suit in 2004. He retired last year and this year the case was assigned to Judge Stack. Cybersource attorney Alan Goldstein of St. Louis moved on Aug. 31, 2006 for summary judgment. Mr. Goldstein questions whether Mr. Wilgus did in fact exercises his option, and if he did, he did not suffer from the share price drop between Sept. 18 and Oct. 20, 2000 because a "blackout" on that period to prevent illegal insider trading was in place. "Because of the blackout, no one at Cybersource who owned company stock could sell shares, while the share price was dropping from $10.75 to less than $6.50 between Sept. 18 and Oct. 20, 2000," Mr. Goldstein wrote. For more details, contact: (1) [Plaintiff] John Hoffman of Korein Tillery, LLC, Gateway on the Mall, 701 Market Street, Suite 300, St. Louis, MO 63101, Phone: (314) 241-4844, Fax: (314) 588- 7036; and (2) [Defendant] Alan K. Goldstein of Goldstein and Price, L.C., One Memorial Drive, Suite 1000, St. Louis, MO 63102-2449, Phone: (314) 421-0710, Fax: (314) 421-2832 and (314) 421-6150. DENMARK: Minister Presents Parliament with Class Action Bill ------------------------------------------------------------ Denmark's Minister of Justice Lene Espersen has presented a bill to parliament that would allow filing of class actions in the country, The Copenhagen Post reports. Class actions, which permit people with identical claims to sue collectively, will help consumers with complaints too small to otherwise warrant an individual trial, according to Mr. Espersen. He adds that consumers should be able to find strength in numbers when they feel cheated. Despite business groups' concern over the introduction of this type of litigation, Mr. Espersen believes that it would make it possible for consumers to seek justice in cases that would otherwise be too expensive to pursue on an individual basis. Additionally, the justice minister pointed out that class actions would be "a very effective tool to ensure that groups of consumers with similar complaints can band together to take on a company they believe has sold a product that doesn't work." Still, companies led by the Confederation of Danish Industries, worry that introducing such lawsuits will force them to unnecessarily settle out of court in order to avoid drawn out court battles. DIOCESE OF COVINGTON: Court Orders New Case for Attorneys' Fees --------------------------------------------------------------- Judge Robert McGinnis in Boone Circuit Court ordered plaintiff attorneys for a sex abuse case against the Diocese of Covington to file a new lawsuit separate from the diocesan suit to determine awards for attorneys, The Cincinnati Post reports. Judge McGinnis was assigned to the case in September after the resignation of Senior Judge John Potter. Lawyer Stan Chesley filed the class action in Boone County Circuit Court in 2003, claiming 21 priests and some other workers abused more than 150 victims in the Diocese of Covington for decades while church officials did nothing to stop the misconduct (Class Action Reporter, Feb. 18, 2003). According to court filings, from about 1956, information on the sexual abuse of minors by diocesan priests has been concealed from the public, including parents of children in schools and parishes where the alleged perpetrators were assigned, as well as from family members of employees of the diocese. In July 2005, the court initially approved a $85 million settlement. On Jan. 31, Judge Potter finally approved the settlement with 361 victims. The agreement calls for plaintiffs to receive between $5,000 and $1 million based on the severity and duration of the abuse they suffered. The first monetary awards were distributed to victims in September (Class Action Reporter, Sept. 15, 2006). The distribution of the settlement is being handled by special masters William Burleigh, chairman of the board of the E.W. Scripps Co., and Thomas D. Lambros of Ashtabula, former chief federal judge in the Northern District of Ohio. Judge Potter awarded plaintiff attorneys $18.5 million in fees in May, but Mr. Chesley had refused to give another attorney, Brenda Dahlenburg Bonar, a share. Ms. Bonar argues that she is entitled part of the fees for her efforts in the initiation, prosecution and ultimate settlement of the case. The initial two plaintiffs in the case that eventually became a class action were her clients, as well as 13 of the original class members. ENCYSIVE PHARMACEUTICALS: Faces Securities Fraud Lawsuit in Tex. ---------------------------------------------------------------- A second purported class action complaint was filed in the U.S. District Court for the Southern District of Texas by the law firm Hoeffner and Bilek LLP on behalf of Gustav R. Bastian and all other similarly situated investors against Encysive Pharmaceuticals Inc. Named defendants in the suit are: -- Encysive Pharmaceuticals Inc.; -- Bruce D. Given, M.D., president and chief executive; -- Richard A.F. Dixon, senior vice president, research and chief scientific officer; and -- Stephen L. Mueller, former vice president, finance and administration, secretary and treasurer. The complaint alleges violations of sections 10(b) and 20(a) of the Securities Exchange Act of 1934, and Securities and Exchange Commission Rule 10b-5, and focuses on statements that are claimed to be false and misleading regarding the company's drug sitaxsentan sodium. The plaintiff seeks unspecified damages on behalf of a purported class of purchasers of the company's securities during the period from Feb. 19, 2004 through March 24, 2006. On Sept. 26, 2006, a similar complaint against the same defendants was filed by Massachusetts Laborers Annuity Fund. In a filing with the U.S. Securities and Exchange Commission, the Houston-based firm said it is possible that additional complaints may be filed in the future. The company expects that these individual lawsuits will be consolidated into a single civil action. The company believes that the allegations in these cases are without merit and intends to defend all such litigation vigorously. The suit is "Bastian v. Encysive Pharmaceuticals Inc et al., Case No. 4:06-cv-03205," filed in the U.S. District Court for the Southern District of Texas under Judge Gray H. Miller. Representing the plaintiffs is Thomas E. Bilek of Hoeffner and Bilek LLP, 1000 Louisiana, Suite 1302, Houston, TX 77002, Phone: 713-227-7720, Fax: 713-227-9404, E-mail: tbilek@hb-legal.com. ILLINOIS: Ill. Judge Junks Claims in Dist. U46 Racial Bias Suit --------------------------------------------------------------- U.S. District Judge Robert Gettleman partly granted on Oct. 6 Elgin School District U46's motion to dismiss plaintiffs' claims in the bias lawsuit filed against it, The Courier News reports. The court dismissed claims concerning the district's alternative high school program, because sole plaintiff Ashley Ivy graduated from the Gifford Street High School in the spring. The remaining claims pertains to allegations that the district is engaged in a long-standing practice of discriminating against minorities through closing schools with substantial minority populations, failing to improve some of those schools and building news schools away from communities with concentrations of minority students, among others, the report said. A black family and a Hispanic family in Elgin filed the suit in 2005 to complain about the closure of Illinois Park Elementary School in 2004. The suit plans to seek relief for all Hispanic and black students who claim they were discriminated against in assignments, transportation, school closings and educational programs. In March Judge Gettleman refused to certify the lawsuit, saying the complaint must be narrowed, or the plaintiff list must be expanded to accommodate all of the issues listed to get class certification. Plaintiffs in the suit filed an amended complaint on May 12. In June, the district filed a request that the lawsuit be dismissed. In July, plaintiffs attorney responded to that request and defended the suit's compliance with court requirements. The revised suit added two Hispanic families and an African- American family alleging unfair treatment of their children by the Elgin public schools (Class Action Reporter, May 17, 2006). It is filed on the behalf of 18 students and their parents: Tracy McFadden, Marielena Montoya, Griselda Burciaga, Beverly Ivy and Irma Sifuentes. The school district was ordered to answer the plaintiffs' second amended complaint by Oct. 23. A hearing for the matter will be held at 9 a.m. Nov. 2. The court has not yet made a decision to certify the suit as a class action. The suit is "McFadden et al. v. Board of Education for Illinois School District U-46," filed in the U.S. District Court for the Northern District of Illinois under Judge Robert W. Gettleman. Representing the plaintiffs is Carol Rose Ashley of Futterman & Howard, Chtd., 122 South Michigan Ave., Suite 1850, Chicago, IL 60603, Phone: (312) 427-3600, E-mail: cashley@futtermanhoward.com. Representing the defendants is Patricia J. Whitten of Franczek Sullivan, P.C., 300 South Wacker Drive, Suite 3400, Chicago, IL 60606-6785, Phone: (312) 986-0300, E-mail: pjw@franczek.com. INDIANA COMPANIES: Federal Suit Filed Over House-Flipping Scheme ---------------------------------------------------------------- Two women filed a lawsuit in the U.S. District Court for the Southern District of Indiana over an alleged real estate fraud scam, The Martinsville Bulletin reports. The seven-count suit filed claims that two Henry County residents recruited others into a house-flipping scheme. It is seeking to recover monetary damages and losses resulting from the incident. In addition, it also seeks to be considered as a class action, which could then include all the people claiming to be victims of the scam. The two plaintiffs named in the suit are Amelia Watkins and Linda K. Hairston of Virginia. According to court documents, the women filed the suit "on their own behalf and on behalf of others" involved in the alleged scheme. Named as defendants in the case are: -- Sharon Penn, Henry County resident; -- Buelah Penn, Henry County resident; -- Robert Penn (Buelah Penn's son); -- ACE Appraisal Services; -- Frederick Bauter; -- Brown Funding Inc.; -- Brian Carrington; -- EU Group, LLC; -- Griffin Group, LLC; -- Land Economics, LLC; -- People's Trust Mortgage, LLC (doing business as People's Choice Mortgage); -- Amy Pollard; -- Robert Pollard; -- Susan L. Ruhana; -- Tamara Scott-Penn (Robert Penn's wife); -- Showhomes Property Management, LLC; -- KTD Enterprises, Inc.; -- Excel Realty Group, LLC; -- Homevestors, LLC; Realty Options, LLC; and -- Jerry Jaquess. In particular, the suit alleges that defendants defraud mortgage lenders by recruiting people into what they thought was an investment club. The scheme involves enticing straw borrowers to join the club with a promise that they could profitably buy investment real estate in Indiana. A straw borrower is when the personal information of someone other than the borrower is used to secure a loan. Te real estate investment club was to secure the mortgages for the properties on terms that would not require down payments or cash contributions of any kind from members of the investment club. Mr. Penn and his associates were to rent the investment properties and manage them at no cost to club members, and those members were not actual owners of the properties or responsible for mortgage payments. The rental income would supposedly be used to make those payments and club members would profit from the investments, while their credit ratings would be "enhanced." However, according to the suit, those representations were false. The mortgage loan applications containing misrepresentations or material omissions were submitted to a lender on behalf of members of the investment club. The loan applications, the suit claims, did not state that the properties were worth much less than the values attributed to them in fraudulent appraisals. In the end, victims are stuck with mortgages on properties that were worth far less than the loans that were obtained to purchase them. Russ Sipes of the Indianapolis-based law firm of George & Sipes, LLP, said that the case could qualify as a class action. The suit is "Watkins, et al. v. Penn, et al., Case No. 1:06-cv- 01473-JDT-TAB," filed in the U.S. District Court for the Southern District of Indiana under Judge John Daniel Tinder with referral under Judge Tim A. Baker. Representing the plaintiffs are W. Russell Sipes of George & Sipes, 156 East Market St., Suite 600, Indianapolis, IN 46204, Phone: (317) 637-6071, Fax: (317) 685-6505, E-mail: wrsipes@lgrslaw.com. MERCK & CO: Vioxx Users Refused Legal Standing in America --------------------------------------------------------- A U.S. court has refused a request by Vioxx users, including at least four in North Staffordshire, to join a class action in America, The Sentinel reports. The court ruled that the patients must challenge the American pharmaceutical company Merck & Co. in the U.K., the report said. Vioxx, known generically as rofecoxib, belongs to a general class of pain relievers known as non-steroidal anti-inflammatory drugs. On May 20, 1999, the U.S. Food and Drug Administration approved Vioxx for sale in the U.S. On Sept. 30, 2004, Merck withdrew Vioxx from all markets worldwide, when a clinical trial APPROVe indicated that the use of Vioxx increased the risk of cardiovascular thrombosis such as myocardial infarctions and ischemic strokes. Merck & Co., Inc. -- http://www.merck.com-- is a global research-driven pharmaceutical company dedicated to putting patients first. Established in 1891, Merck currently discovers, develops, manufactures and markets vaccines and medicines to address unmet medical needs. MICROSOFT CORP: Wants "Conlin" Out of Consumer Antitrust Suit ------------------------------------------------------------- Microsoft Corp. lawyers are seeking for the removal of Des Moines attorney Roxanne Conlin from a consumer antitrust class actions filed against Microsoft Corp., KCCI reports. Microsoft has accused her of unethical conduct. Plaintiffs claim Microsoft violated Iowa's antitrust laws by monopolizing and unreasonably restraining trade in the markets for Intel-compatible: (i) personal computer operating system software, and (ii) applications software, including word processing, spreadsheet and office-suite software. The plaintiffs claim that Microsoft harmed Class Members by: -- illegally overcharging for its software; -- denying class members free choice in software products and the benefits of software innovation; and -- making computers increasingly susceptible to security breaches. Plaintiffs also allege that Microsoft engaged in anticompetitive conduct in new and specialized purported software markets for server operating systems. Class members in the case include all those who bought Microsoft Windows, MS-DOS, Word, Excel, or Office software, or a personal computer on which this software was already installed in Iowa from May 18, 1994, through June 30, 2006. However, Microsoft denies the claims and maintains that it developed and sold high quality software products at fair and reasonable prices. Specifically, Microsoft contends that it did not overcharge for its software and that consumers benefited from being able to purchase high quality software products. Microsoft also contends that consumers benefited from being able to purchase high quality products that were continually improved and enhanced through Microsoft's research and development efforts. Further, Microsoft contends that it developed products that responded to consumer desires and that were more attractive to consumers than the products offered by its competitors. According Ms. Conlin, her experts have estimated that individuals and businesses were overcharged as much as $453 million for Microsoft products in the past 12 years, since a lack of competition has inflated the cost of the company's products (Class Action Reporter, Sept. 18, 2006). In Iowa, about 5.1 million licenses for Microsoft Windows have been issued, 1.8 million for Office, 446,373 for Word and about 21,349 for Excel. Ms. Conlin pointed out that the average consumer overcharges ranges from $10.50 for buyers of Word to $56.99 to those who purchased Excel. She also pointed out that many customers might have purchased more than one version in 12 years, thus they could be eligible for multiples of those amounts. Microsoft attorney David Tulchin accused Ms. Conlin of lying to the company and the court and "soliciting and obtaining stolen property that belonged to Microsoft." Ms. Conlin's lawyer, Mark Tripp, said she did nothing wrong and accused Microsoft of engaging in an "ethical witch hunt." A trial is scheduled to begin on or after Nov. 13, 2006. Iowa Software Suit on the Net: http://www.iowasoftwaresuit.com The counsels representing the Class Members are: (1) Roxanne Conlin & Associates, P.C., 319 Seventh Street, Suite 600, Des Moines, Iowa 50309, Phone: (515) 283- 1111, Fax: (515) 282-0477, E-mail: rconlin@roxanneconlinlaw.com, Web site: http://www.roxanneconlinlaw.com/;and (2) Zelle, Hofmann, Voelbel, Mason & Gette LLP, 500 Washington Avenue South, Suite 4000, Minneapolis, MN 55415, Phone: 800-899-5291, Fax: 612-336-9100, Email: mfeinber@zelle.com, Website: http://www.zelle.com. Representing Microsoft is David B. Tulchin of Sullivan & Cromwell, 125 Broad Street, New York, New York 10004-2498, Phone: +1-212-558-3749, Fax: +1-212-558-3588, E-mail: tulchind@sullcrom.com. NEWS-PRESS: Ex-Reporter Files Labor Violations Suit in Calif. ------------------------------------------------------------- A former reporter for the Santa Barbara News-Press filed a lawsuit against the newspaper, alleging that it failed to keep accurate time records and withheld employees' overtime pay, The Associated Press reports. Filed in Santa Barbara Superior Court in California, the suit seeks class-action status for as many as 200 past and present employees. Generally, the suit claims that the newspaper failed to pay overtime to employees who worked more than eight hours a day or more than 40 hours a week. It also claims that the News-Press didn't provide its employees with meal and rest periods required by California law. The News-Press is a 41,000-circulation daily. It has about 50 newsroom employees among a 206-person work force. For more details, contact plaintiff's lawyer Bruce N. Anticouni of Anticouni & Associates, 23 East De La Guerra Street, Santa Barbara, CA 93101, Phone: (805) 962-0467 and (800) 551-9018, Fax: (805) 962-7501, Web site: http://www.anticouni.com. NTL INC: Oct. 23 Fairness Hearing Set for N.Y. Stock Suit Deal -------------------------------------------------------------- The U.S. District Court for Southern District of New York will hold a fairness hearing on Oct. 23, 2006 at 2:00 p.m. for the proposed $9,000,000 settlement in the matter, "In Re NTL, Inc. Securities Litigation, Case No. 02-CV-3013 (LAK)(AJP)." The court will hold the hearing at the U.S. District Court for the Southern District of New York, 500 Pearl Street, New York, New York 10007. Deadline for submission of a claim form and any exclusion from the settlement was Sept. 22, 2006. Objections to the settlement was due Sept. 29, 2006. The case covers all persons or entities that purchased or otherwise acquired the publicly traded securities of NTL, Inc. on the open market during the period between Aug. 10, 2000 and Nov. 29, 2001. During the class period, NTL was a New York based corporation providing telephone, cable television, Internet, and broadband communications services in the United Kingdom, Ireland, and parts of continental Europe. Commencing in April of 2002, several securities class actions were instituted on behalf of purchasers of NTL securities during the period from Aug. 3, 2000 and continuing through and including Nov. 29, 2001, alleging violations of the U.S. federal securities laws. These lawsuits were consolidated for all purposes by a Court Order on July 31, 2002. By order of the court dated July 31, 2002, Cheyne Fund LP and Fleck T.I.M.E. Fund L.P. were designated Lead Plaintiffs and Milberg Weiss Bershad & Schulman LLP (formerly known as Milberg Weiss Bershad Hynes & Lerach LLP) and Bernstein Liebhard & Lifshitz, LLP were appointed as Co-Lead Counsel for the Class. The Consolidated Amended Class Action Complaint dated Oct. 30, 2002 filed in the action alleges, among other things, that NTL and the individual defendants, who were officers and/or directors of NTL, made materially false and misleading statements and omissions in NTL's public reports and statements disseminated to the investing public thereby artificially inflating the price of the securities of NTL and damaging members of the class. In particular, the complaint alleges, inter alia, that during the class period, one or more defendants materially misrepresented the company's ability to integrate acquired businesses, the size of its subscriber base and its ability to service its debts in public reports and statements disseminated to the investing public. The company's financial and other public statements are alleged to have made been in violation of Sections 10(b) and 20(a) of the U.S. Securities Exchange Act of 1934, and Rule 10b-5 promulgated thereunder. The complaint further alleges that, as a result of defendants' materially false and misleading statements, the price of NTL securities was artificially inflated during the class period, thereby causing damage to members of the class who purchased or otherwise acquired NTL securities during that period. NTL filed for Chapter 11 bankruptcy protection on May 8, 2002. On Sept. 5, 2002, the U.S. Bankruptcy Court permitted the Action to proceed post-reorganization against the parties other than the corporate debtor and against the corporate debtor to the extent of its available insurance coverage. NTL Europe, Inc. replaced the corporate entity in the Action. Defendants filed a motion to dismiss the complaint on Dec. 6, 2002. By Memorandum and Order dated Dec. 12, 2004, the court granted in part and denied in part defendants' motion to dismiss the complaint. On Jan. 28, 2005, defendants answered the Complaint, denying that they violated any laws or did anything wrong. They believe that their actions were proper under the federal securities laws, and they assert several affirmative defenses. On Sept. 7, 2005, Lead Plaintiffs made a motion to certify the class. By Order dated Mar. 9, 2006, the Court certified the Class as described above and Cheyne Fund LP and Fleck T.I.M.E. Fund L.P. as Class Representatives. The lawsuit seeks money damages against the Defendants for violations of the federal securities laws. The defendants deny all allegations of misconduct contained in the complaint, and deny having engaged in any wrongdoing whatsoever. For more details, contact: (1) Jeffrey M. Haber, Esq., Bernstein Liebhard & Lifshitz, LLP, 10 East 40th Street, New York, New York 10016, Phone: (212) 779-1414, Fax: (212)-779-3218, E-mail: haber@bernlieb.com; (2) George A. Bauer III, Esq., Milberg Weiss Bershad & Schulman LLP, One Pennsylvania Plaza, New York, New York 10119-0165, Phone (212) 594-5300 and 212-946-9310, Fax: 212-868-1229, E-mail: gbauer@milberg.com; and (3) The Claims Administrator, In re NTL, Inc. Securities Litigation, c/o The Garden City Group, Inc., Claims Administrator, P.O. Box 9000 #6456, Merrick, NY 11566- 9000, Phone: 1-888-366-5350, Web site: http://www.gardencitygroup.com/cases/index.html. PAINCARE HOLDINGS: Continues to Face Securities Suits in Fla. ------------------------------------------------------------- Paincare Holdings, Inc. remains a defendant in multiple securities class actions filed in the U.S. District Court for the Middle District of Florida. On March 21, 2006, Roy Thomas Mould filed a complaint under Sections 10(b) and 20(a) of the U.S. Securities Exchange Act of 1934 against the company, as well as the company's chief executive officer and chief financial officer (Class Action Reporter, June 6, 2006). The complaint is "Mould v. PainCare Holdings, Inc., et al., Case No. 06-CV-00362-JA-DAB." It alleged that the Orlando-based firm violated federal securities laws by issuing a series of material misrepresentations to the market during the class period that artificially inflated the price of PainCare securities. Plaintiff seeks unspecified damages and purports to represent a class of shareholders who purchased the company's common stock from Aug. 27, 2002 to March 15, 2006. Additional complaints were filed shortly afterward before the same court, which recite similar allegations. The suit is "Mould v. Paincare Holdings, Inc. et al., Case No. 6:06-cv-00362-JA-DAB," filed in the U.S. District Court for the Middle District of Florida under Judge John Antoon II with referral to Judge David A. Baker. Representing the plaintiffs is Kenneth J. Vianale of Vianale & Vianale, LLP, 2499 Glades Road, Suite 112, Boca Raton, FL 33431, Phone: 561/392-4750, ext. 107, Fax: 561/392-4775, E-mail: e-file@vianalelaw.com. Representing the company is Bruce J. Berman of McDermott, Will & Emery, 201 S. Biscayne Blvd., Suite 2200, Miami, FL 33131-4336, Phone: 305/358-3500, Fax: 305/347-6500, E-mail: bberman@mwe.com. PHILIP SERVICES: Ga. Court Allows Lawyers to Contact Plaintiffs --------------------------------------------------------------- Judge Charles A. Pannell of the U.S. District Court for the Northern District of Georgia gave attorneys from both sides in the proposed class action over an odor coming from an industrial waste plant owned by the Philip Services Corp., the ability to discuss aspects of the case with putative, or supposed, class members, The Fayette Citizen reports. "In light of (prior litigation including) Jackson, Gulf Oil and the fact that the defendants have not presented any factual evidence showing that imminent and irreparable injury of the type complained of in their brief is likely to occur absent an order limiting communications, the court will allow the parties and their counsel to speak freely about this lawsuit with any potential class member who initiates contact with them. "The court will also allow the parties and their counsel to initiate contact with putative class members as long as the contact is not widespread and is not made for the purpose of encouraging or discouraging this lawsuit," Judge Pannell said in an Oct. 4 ruling. The court ruled that neither party may initiate any mass communication with potential class members. The court, however, allowed defendants to set up a toll-free number to answer questions about the facts relating to the incident and the ensuing investigation. Additionally, the court did not limit in any manner the parties' right to speak with the media on the substance of the lawsuit as long as no attempts are made to overtly solicit participation or non-participation by potential class members. Case Background About 75 people filed a lawsuit seeking class-action status in Fulton County Superior Court in Georgia over a nauseating odor coming from an industrial waste plant owned by the Philip Services Corp. (Class Action Reporter, Aug. 1, 2006). Named defendants in the suit are Philip Services Corp. also known as PSC Recovery Systems and Georgia Recovery Systems, and AMVAC Chemical Corp. Residents, represented by attorney Scott Zahler, claimed in the suit that they have suffered migraine headaches, nosebleeds, rashes, nausea, sore throats, diarrhea, eye irritation, dizziness and respiratory problems over the odor. Initially sought for problems arising from exposure to the chemical odorant propyl mercaptan, the amended suit adds the organophosphate pesticide MOCAP (Ethoprop) to the action. Amended Complaint Filed Atlanta attorneys Goetz, Allen & Zahler, Fayette and south Fulton residents, filed an amended complaint recently (Class Action Reporter, Oct. 12, 2006). The amended suit includes a broadened definition of the harm done to residents and their property. It now claims eight counts, including continuing trespass, continuing nuisance, negligence, negligence per se, injunctive relief, declaratory judgment, punitive damages and attorney's fees, costs and expenses. The amended suit also broadens the reported time frame for which the chemicals were introduced into the communities surrounding the PSC plant. Residents' attorneys maintain that shipments of MOCAP water wash were brought into the community in May and June and were released into the air, water and soil surrounding the plant and in outlying areas. The suit charges that those releases resulted from mishandling and mistreatment of the shipments. It was during the same time frame that area residents began manifesting symptoms of the various symptoms of acute overexposure and chronic overexposure to MOCAP, the suit said. According to The Fayette Citizen, timelines for the case show the fact-finding or discovery phase to be concluded by Jan. 31, 2007. The class certification for the lawsuit is expected to be filed on or before March 31, 2007. The suit is "McLendon et al. v. Philip Services Corp. et al., Case No. 1:06-cv-01770-CAP," filed in the U.S. District Court for the Northern District of Georgia under Judge Charles A. Pannell. Representing defendants are Cari K. Dawson, Richard Thomas Fulton, James Alan Langlais and Robert Douglas Mowrey all of Alston & Bird LLP, 1201 West Peachtree Street, One Atlantic Center, Atlanta, GA 30309-3424, Phone: 404-881-7000 or 404-881- 7490, E-mail: cari.dawson@alston.com or sfulton@alston.com or jlanglais@alston.com or bmowrey@alston.com. Representing the plaintiffs are: (1) Kurt D. Ebersbach, Donald D. J. Stack and Kimberly Ann Sturm all of Stack & Associates, 260 Peachtree Street, Suite 1200, Atlanta, GA 30303, Phone: 404-525- 9205, Fax: 404-522-0275, E-mail: kebersbach@stack-envirolaw.com or dstack@stack-envirolaw.com or ksturm@stack-envirolaw.com; (2) Jacob Stanford Eby of Devlin & Robinson, 127 Peachtree Street, N.E., Suite 300, Atlanta, GA 30303, Phone: 404- 222-8411, E-mail: jeby@dandrpc.com; (3) Charles M. Goetz, Jr., Samuel P. Pierce, Jr. and Scott Mitchell Zahler all of Goetz Allen & Zahler, 2859 Paces Ferry Road, Overlook III Suite 1740, Atlanta, GA 30339, Phone: 770-431-1000 or 770-431-1108, E-mail: cmgoetz@goetz-zahler.com or spierce@goetz-zahler.com or smzahler@goetz-zahler.com; and (4) Michael P. Pryor of Sams Larkin & Huff, 376 Powder Springs Street, Suite 100, Marietta, GA 30064, Phone: 770-422-7016, E-mail: mpryor@samslarkinhuff.com. QWEST COMMUNICATIONS: Court Awards $60M to Counsel in Stock Suit ---------------------------------------------------------------- U.S. District Judge Robert E. Blackburn issued a ruling on Sept. 28 regarding the lead counsel's motion for award of attorneys' fees and reimbursement of expenses in the Qwest Communications International, Inc. Securities litigation. Party Award ----- ----- Lerach Coughlin Stoia Geller up to $60 million in Rudman & Robbins LLP attorneys' fees and lead counsel for the plaintiff $2 million in costs The New England Health Care $13,215.56 in costs and Employees' Pension Fund expenses Lead Plaintiff Sat Pal Singh $7,650.00 in costs and expenses Lead Plaintiff Tejinder Singh $8,431.41 in costs and expenses Lead Plaintiff Clifford Mosher $11,280.00 in costs and expenses In an order issued concurrently with this order, the court had approved a class action settlement agreed to by the lead plaintiffs and all but two of the defendants. The terms of the settlement contained in the parties' Stipulation of Partial Settlement, filed Nov. 23, 2005, requires Settling Defendants in the suit to pay $400 million into a Settlement Fund for the benefit of the plaintiff class. In addition, the parties have agreed to persuade the U.S. Securities and Exchange Commission to permit $250 million held by the SEC to be added to the Settlement Fund. Defendant Qwest paid $250 million to the SEC under the terms of a judgment entered against Qwest and in favor of the SEC in a separate civil suit. In January, the court granted preliminary approval to the settlement. The class in the suit is defined as all persons who purchased or otherwise acquired Qwest publicly traded securities (including common stock, bonds, and options) from May 24, 1999 through July 28, 2002. The suit is "In re Qwest Communications International, Inc. Securities Litigation, Civil Case No. 01cv01451REBCBS," filed in the U.S. District Court for the District of Colorado. The lead counsel for the plaintiff is Lerach Coughlin Stoia Geller Rudman & Robbins LLP, Keith F. Park, 655 West Broadway, Suite 1900, San Diego, CA 92101-3301. Qwest Claims Administrator: c/o Gilardi & Co. LLC, P.O. Box 5100, Larkspur, California 94977-5100. QWEST COMMUNICATIONS: Retirees Oppose Dismissal of ERISA Lawsuit ---------------------------------------------------------------- Qwest retirees filed on Oct. 3 a legal brief in opposition to the company's motion for summary judgment dismissal in the pension death benefit litigation, "Kerber et al. v. Qwest." The suit was filed by Edward J. Kerber, Nelson B. Phelps, Joanne West, Nancy A. Meister, Thomas J. Ingemann, Jr. individually, and as representative of plan participants and plan beneficiaries of the Qwest Pension Plan, against: -- Qwest Pension Plan, -- Qwest Employees Benefit Committee, -- Qwest Pension Plan Design Committee, and -- Qwest Communications International, Inc., The case was brought under the Employee Retirement Income Security Act by the plaintiffs. A second amended complaint charges that Qwest Defendants have wrongfully re-classified the Pension Death Benefit as a "welfare" or mere take-a-way benefit and wrongfully amended the Qwest Pension Plan so as to cease paying Pension Death Benefits to the beneficiaries of plan participants who retired after Jan. 1, 2004. Qwest defendants have threatened to take-a-way the Pension Death Benefit from all other pre-Jan. 1, 2004 retirees currently receiving monthly service pension annuities. In August, Qwest Defendants filed a motion for summary judgment dismissal. In September, plaintiffs moved the court to certify the suit as class action against the Qwest defendants on behalf of a class of all Qwest Pension Plan participants (and beneficiaries thereof) who retired and are receiving either a service pension annuity or disability pension annuity, and all those persons (and beneficiaries thereof) who retired on or after Jan. 1, 2004 and received a lump sum distribution of their service pension annuity, minus the lump sum present value of the Pension Death Benefit. The plaintiffs also asked for the appointment of Curtis L. Kennedy as class counsel. The class certification motion is available for free at: http://ResearchArchives.com/t/s?1359 The suit is Civil Action No. 05-cv-00478-BNB-PAC filed in the U.S. District Court for the District of Colorado. The QWest defendants are represented by: (1) Elizabeth I. Kiovsky, Esq. and Beth Doherty Quinn, Esq. at Baird & Kiovsky, LLC, 2036 E. 17th Ave. Denver, CO 80206-1106, Phone: 303-813-4500, Fax: 303-813-4501, E-mail: BethK@bairdkiovsky.com or BDQ@bairdkiovsky.com; and (2) Sherwin S. Kaplan, Esq. of The Len Reid & Priest LLP, 701 Eighth Street, NW Washington, D.C. 20001, Phone: 202.508.4218, Fax: 202.654.1845, E-mail: skaplan@thelenreid.com. Representing the plaintiffs is Curtis L. Kennedy, 8405 East Princeton Avenue, Denver, CO 80237-1741, Phone: 303-770-0440, Fax: 303-843-0360, E-mail: CurtisLKennedy@aol.com. SONY BMG: Quebec Court Approves XCP, MediaMax Lawsuit Settlement ---------------------------------------------------------------- The Quebec Superior Court approved the settlement of a class action over Sony music CDs that installed software on computers without authorization, The CBC News reports. The settlement is in connection with music CDs sold by Sony BMG (Canada) Inc. that included anti-copying software that would be secretly installed on a computer when it was inserted in a CD drive. According to the case, that software made it possible for a computer to be hijacked by an attacker or susceptible to a computer virus. The software was added to Sony music CDs made or sold in Canada over the last three years. Sony BMG faced class actions filed in Ontario, British Columbia, and Quebec in late 2005 and early 2006 on behalf of a certain class of persons in Canada, who purchased a music CD SONY BMG that carried XCP or MediaMax software. The suit also named as defendants SunnComm International Inc., and First 4 Internet, Ltd. These actions allege that the Media Max and XCP software fails to disclose limits on use of the CDs, violates the privacy rights of users, creates security vulnerabilities, and is difficult to uninstall. The Ontario class proceeding includes the claims of all settlement class members who reside outside the provinces of British Columbia and Quebec. The Quebec and British Columbia class proceeding includes all of the class members who reside in the province of Quebec and British Columbia respectively. The proposed class includes: "all natural persons in Canada who purchased, received, came into possession of or otherwise used one or more MediaMax CDs and/or XCP CDs from Aug. 1, 2003 through Aug. 10, 2006 excluding the employees of Released Parties, SONY BMG resellers or distributors of the XCP CDs and MediaMax CDs, and any persons or entities that have previously executed releases discharging SONY BMG from liability concerning or encompassing any or all claims" against the product. Sony has reached a settlement in the class action (Class Action Reporter, Sept. 8, 2006). Under an agreement: -- all XCP class members who return their CD to SONY BMG or provide SONY BMG with a receipt indicating the return or exchange of their CD to its place of purchase will receive a replacement hard copy CD of the same title without the software, and will be able to download from the SONY BMG website free MP3 digital music files of the same album. XCP class members can then choose either of two additional compensation options: * a cheque for $8.40 and a promotional code exchangeable for one free album download from among a list of approximately 200 available albums, or * a promotional code exchangeable for three of the free album downloads; -- MediaMax 3.0 class members who provide proof of purchase will be able to download free MP3 digital files of the tracks on the MediaMax CD; -- MediaMax 5.0 class members who provide proof of purchase will be able to download free MP3 digital files of the tracks on the MediaMax CD, and will receive a promotional code for one free album download. Remedial undertakings by SONY BMG include: -- an agreement not to manufacture audio CDs with XCP or MediaMax Software in Canada, or to distribute CDs with XCP Software in Canada; -- an agreement to advise the courts if and when it uses Content Protection Software on CDs sold in Canada that has not been reviewed under the U.S. Settlement Agreement; -- an affirmation, which an independent auditor has confirmed, that it has not collected any personally identifiable information from consumers without consent, and it will agree to take commercially reasonable steps to destroy, at least every 10 business days, all IP addresses logged from hits made to its servers; and -- waive of certain provisions of the EULA associated with the XCP and MediaMax CDs. SONY BMG denies any wrongdoing or liability associated with the XCP and MediaMax Software. Class counsel's fees and disbursements, and taxes thereon in an amount to be fixed by the court, will be paid by SONY BMG in addition to the other settlement terms. In September, the Supreme Court in Ontario, Canada approved the settlement in a class action filed against Sony BMG Music (Canada) Inc. Compensation will be paid to the class until Dec. 31, 2006: Contact Information Quebec class members KUGLER, KANDESTIN (Attention; Pierre Boivin) 1 Place Ville-Marie, Suite 2101, Montreal Quebec H3B 2C6 Phone: 514-878-2861 Fax: 514-875-8424 Email: info@kugler-kandestin.com Other provinces, territories SUTTS, STROSBERG 600-251 Goyeau Street, Windsor, Ontario N9A 6V4 Phone: 1-519-561-6248 Fax: 519-561-6203 MERCHANT LAW GROUP 340-251 3rd Avenue S. W. 203-895 Belville Street Calgary, Alberta T2P 3T3 Victoria, B.C. V8V 1W9 Phone: 866-225-7777 Fax: 403-237-9775 HOTZ LAWYERS 203-100 Upper Madison Avenue, Toronto, Ontario M2N 6M4 Phone: 416-590-7823 Fax: 647-430-8269 On the Net: http://cdtechsettlement.sonybmg.ca. TECO ENERGY: Fla. Court Partially Dismisses Stock Fraud Suit ------------------------------------------------------------ Judge James D. Whittemore of the U.S. District Court for the Middle District of Florida granted a "dismissal in part" to a further amended complaint in a consolidated securities class action filed against TECO Energy, Inc. and certain of its current and former officers, The Tampa Tribune reports. Purchasers of company securities filed a number of securities class actions in August, September and October 2004. These suits, which were filed in the U.S. District Court for the Middle District of Florida, allege disclosure violations under the U.S. Securities Exchange Act of 1934. On Feb. 1, 2005, the court entered its order appointing the "TECO Lead Plaintiff Group," comprised of: -- NECA-IBEW Pension Fund (The Decatur Plan), -- Monroe County Employees Retirement System, -- John Marder and Charles Korpak, as the lead plaintiff for the class and the law firm of Lerach Coughlin Stoia Geller Rudman & Robbins LLP as lead counsel. The plaintiffs filed their Consolidated Class Action Complaint for securities fraud on May 3, 2005. The consolidated complaint maintains the same class period, Oct. 30, 2001 to Feb. 4, 2003, and the same parties as those contained in the original complaint. The nature of the claims, which relate to the adequacy of the company's disclosures and financial reporting, also remains the same. The defendants filed their motion to dismiss on July 25, 2005. The plaintiffs have been granted an extension to file their response through Dec. 31, 2005, since the parties have agreed to mediate the claims in mid-December 2005, in order to eliminate uncertainty and ongoing expense associated with the litigation. In March 2006, the court partially dismissed the consolidated case. According to Judge James Whittemore's ruling, the plaintiffs relied on analysts' reports that they alleged revealed the company's fraud. However those reports, while pessimistic about the company's future, did not identify any improprieties, the judge wrote. In addition, the judge pointed out that the plaintiffs did not sufficiently establish a connection between the specific fraudulent activity alleged and a drop in stock prices. Thus in dismissing part of the plaintiff's complaint and the request for class action, Judge Whittemore wrote, "In sum, plaintiffs have not sufficiently alleged that defendant's fraud, as opposed to poor market conditions, was the proximate cause of TECO's stock price decline." The judge, however, did not grant the company's motion to dismiss the entire case. His reason for not granting that motion was because he found that the plaintiffs did set forth allegations of deception and manipulation that were sufficient to support a fraud claim. After the consolidated Class Action Complaint brought by the "TECO Lead Plaintiff Group" was dismissed without prejudice on Mar. 31, 2006, the plaintiffs filed their further amended complaint to which the company and the defendants filed their motion to dismiss on Jul. 7, 2006, based on failure to plead loss causation as raised in the prior motion. Plaintiffs filed their response to the motion to dismiss on July 21, 2006. The suit is "In Re: TECO Energy, Inc. Securities Litigation, Case No. 8:04-cv-01948-JDW-EAJ," filed in the U.S. District Court for the Middle District of Florida under Judge James D. Whittemore. Representing the plaintiffs are David A. Rosenfeld, Samuel H. Rudman, William S. Lerach, Darren J. Robbins, Stephen Richard Astley, David D. George and Jack Reise of Lerach Coughlin Stoia Geller Rudman & Robbins LLP, Phone: 561/750-3077, 619/231-1058 and 631/367-7100, Fax: 561/750-3364 and 631/367-1173, E-mail: sastley@lerachlaw.com, dgeorge@lerachlaw.com, jreise@lerachlaw.com, and drosenfeld@lerachlaw.com Representing the company are: (1) Diane Knox, Richard A. Rosen of Paul, Weiss, Rifkind, Wharton & Garrison LLP, 1285 Avenue of the Americas, New York, NY 10019-6064, Phone: 212/373-3000; (2) Tracy A. Nichols, Holland & Knight LLP, 701 Brickell Ave., Suite 3000, P.O. Box 015441, Miami, FL 33131- 5441, Phone: 305/374-8500, Fax: 305/789-7799, E-mail: tracy.nichols@hklaw.com; and (3) Steven B. Rosenfeld, 1285 Avenue of the Americas, New York, NY 10019-6064, Phone: 212/373-3000, Fax: 212-757- 3990. TORCHMARK INC: Court Rules on Cancer Policies Suit Jurisdiction --------------------------------------------------------------- The Alabama Supreme Court has ruled that a trial court lacked jurisdiction over a class action against Torchmark, Inc. and its subsidiary Liberty National Life Insurance Co., which involves how claims were paid on cancer policies, Bestwire reports. Known as the Roberts case, the suit was filed in the Circuit Court of Barbour County and settled in 2004. It allegations were: -- breach of contract in the implementation of premium rate increases; -- misrepresentation regarding premium rate increases; and -- unjust enrichment. In it's ruling, which was handed down on Sept. 29, 2006, the high court didn't address the terms of the settlement or criticize it, according to company vice president of investor relations, Joyce Lane. Asked on how much the companies settled for, Ms. Lane responded there was "no stated amount." She only added that the settlement required changes to the amount of premiums charged and how claims are paid. The Roberts case was a subclass of another class action against the companies, known as the Robertson case, according to the company's filing. The Robertson case, from the early 1990s, "has been closed for some time," Ms. Lane explained. That case involved some of the same people in the most recent Roberts case and also involved how claims were being paid on some cancer policies, according to her. McKinney, Texas-based Torchmark, Inc., (NYSE: TMK) -- http://www.torchmarkcorp.com-- is holding company whose subsidiaries specialize in life and supplemental health insurance marketed through several distribution channels to middle-income people. UNITED STATES: MNG Reimbursement Suit Continues in Federal Court ---------------------------------------------------------------- The purported class action filed by four Massachusetts National Guardsmen against the government will be making its way through federal court. The four soldiers, who filed the suit in the U.S. District Court for the District of Massachusetts, are claiming that they were denied reimbursement for meals, travel and lodging while guarding potential targets after the Sept. 11, 2001 terrorist attacks. The National Guard has acknowledged that it failed to reimburse some soldiers, however, it will still argue for the dismissal of the lawsuit. In the meantime, as the case is going through the legal system, attorneys lawyers for the guardsmen are trying to have the case certified as a class action, which would entitle hundreds of soldiers to compensation. In the past, Judge Richard G. Stearns has expressed his doubt that the case belonged in his court. He said it would appear to belong in the U.S. Court of Federal Claims, in Washington, D.C., which handles disputes where people say they are owed money by the federal government (Class Action Reporter, Aug. 14, 2006). The suit names the Department of Defense and the state National Guard as defendants. Judge Stearns said the names of individual government officials, including Secretary of Defense Donald Rumsfeld and Gov. Mitt Romney, would be dropped because the action was against government agencies. It seeks $73 million in compensation and argues there could be as many as 1,000 Massachusetts National Guard soldiers who deserve reimbursements. Case Background The suit named as plaintiffs all U.S., Massachusetts, Army and Massachusetts National Guard officials; and as defendants, leaders at the MNG Command Center who denied the reimbursements (Class Action Reporter, Jan. 20, 2006). Specific plaintiffs named are Wayne R. Gutierrez, of New Bedford, Mass., Sgt. Steven M. Littlefield, and Joseph P. Murphy, a specialist at Camp Edwards. The four guardsmen were among many MNG soldiers activated for temporary duty in early December 2001. In the post Sept. 11 anti-terror environment, their assignments included security patrols, lock-downs and construction projects at bases across the state. The lead plaintiff in the case, Sgt. Louis Tortorella, of New Hampshire, died in March 2006 of heart attack. The suit is "Tortorella et al. v. U.S. of America et al., Case No. 1:06-cv-10054-RGS," filed in the U.S. District Court for the District of Massachusetts under Judge Richard G. Stearns. Representing the plaintiffs are: (1) John R. Shek of Weston, Patrick, Willard & Redding, PA, 84 State Street, 11th Floor, Boston, MA 02109-2299, Phone: 617-742-9310, Fax: 617-742-5734, E-mail: jrs@wpwr.com; and (2) Constance A. Driscoll of Stevens Law Office, 127 Mountain Road, P.O. Box 1200, Stowe, VT 05672, US, Phone: 802-253-8547, Fax: 802-253-9945, E-mail: constance.driscoll@stowelawyers.com. Representing the defendants are: (i) Mark T. Quinlivan, United States Attorney's Office, 1 Courthouse Way, Boston, MA 02210, Phone: 617-748-3606, Fax: 617-748-3969, E-mail: mark.quinlivan@usdoj.gov; and (ii) Brian M. Donovan, Office of the Attorney General, Room 1813, One Ashburton Place, Boston, MA 02108, Phone: 617-727-2200, Fax: 617-727-3076, E-mail: brian.donovan@ago.state.ma.us. WILLIAMS PRODUCTION: Faces Col. Lawsuit Over Unpaid Royalties ------------------------------------------------------------- Grand Junction attorney Nate Keever filed a class action in Garfield County District Court against Williams Production, in an attempt to recover unpaid royalties from the company, The Daily Sentinel reports. Named plaintiffs in the suit -- Sid Lindauer, his wife, Ruth, and his brother, Ivo -- said they decided to act after two other Garfield County mineral owners, the late Bill Clough and Joan Savage, won millions of dollars from Williams over underpaid royalties. Mr. Lindauer said they resisted leasing to Williams for some time, but when faced with the prospect of the company "pooling" the family mineral rights with others and getting their gas from adjacent property, they relented. "We think there could be thousands of mineral owners statewide that were paid improperly," he said. "In Garfield County, there's at least several hundred." According to Mr. Keever, the suit could help split-estate owners, those who own the surface but not the minerals, because they have a hard time getting the gas companies to pay their fair share because they can't afford their own attorneys. Williams Production spokeswoman Susan Alvillar said the company was evaluating the claims in the lawsuit. Plaintiffs' attorney is Nate Keever of Dufford Waldeck Milburn & Krohn LLP, 744 Horizon Court, Suite 300, Grand Junction, Colorado 81506, Phone: (970) 241-5500, Fax: (970) 243-7738. WORLDCOM INC: Third Party Claims Fund Termination Date Extended --------------------------------------------------------------- District Judge Dennis Cote ruled on Oct. 10 that the termination date of Third Party Claims Fund in the Stipulation of Settlement with former Worldcom Inc. president and chief executive Bernard J. Ebbers on July 6, 2005 is extended until the date of termination of the agreement entered into among: -- the class, -- MCI, LLC (successor by merger to MCI, Inc.), and -- the liquidating agent for the purpose of liquidating certain assets as designated in the Ebbers Stipulation, as such date may be extended pursuant to the terms of the Trust Agreement. The court issued the order after considering the declaration of Alan P. Lebowitz, General Counsel to the Comptroller of the state of New York, in Support of Extension of the Termination Date of Third Party Claims Fund Established Pursuant to the class's settlement with Mr. Ebbers. The settlement of a suit filed against Mr. Ebbers by investors who lost money when WorldCom collapsed in 2002, calls for him to pay $5 million up front and to place the remainder of his assets in a trust that is expected to be sold for an estimated $25 million to $40 million. All monies from the sale of Mr. Ebber's property are to be deposited in a fiduciary fund for disbursement to plaintiffs in the class action. The trustee in the settlement with Mr. Ebbers' is Development Specialists, Inc. the Trustee's counsel, Burr & Forman LLP, and the Trustee's representatives: Development Specialists, Inc. Attn: Brian C. Weepie 70 West Madison Street, Suite 2300 Chicago, IL 60602 Tel: (312) 263-4141 Fax: (312) 263-1180 -- and -- Development Specialists, Inc. Attn: Joseph J.Luzinski 200 South Biscayne Boulevard, Suite 1818 Miami, FL 33131 Tel: (305) 374-2717 Fax: (305) 374-2717 The suit "In re Worldcom, Inc. Securities Litigation, 02 Civ. 3288 (DLC)," -- http://www.worldcomlitigation.com-- is a consolidated, certified class action pending in the Southern District of New York before District Court Judge Denise L. Cote. It is being prosecuted on behalf of a court-certified class of all individuals or entities who purchased or acquired publicly traded securities of WorldCom, Inc. from April 29, 1999 through and including June 25, 2002, and who were injured thereby. Lead Plaintiff On Aug. 15, 2002, Judge Cote appointed the Comptroller of the State of New York, the sole Trustee of the New York State Common Retirement Fund, which is the nation's second-largest public pension fund, to serve as lead plaintiff in the WorldCom Securities Litigation and approved lead plaintiff's selection of Barrack, Rodos & Bacine and Bernstein Litowitz Berger & Grossmann LLP as co-lead counsel for the class. Fresno County Employees Retirement Association, the County of Fresno, California and HGK Asset Management are additional named plaintiffs and class representatives. The consolidated complaint of the lead plaintiff was filed in the fall of 2002, and updated in August 2003 and in December 2003. On Nov. 7, 2002, Judge Cote ordered the parties to participate in settlement negotiations under the supervision of Magistrate Judge Michael H. Dolinger. In the fall of 2003, the court invited the Honorable Robert W. Sweet, U.S. District Court Judge, to assist in oversight of the settlement discussions. Judge Cote certified the lawsuit as a class action on Oct. 24, 2003. WorldCom, Inc. was not a defendant because on July 21, 2002, it filed for bankruptcy protection. The bankruptcy court in the Southern District of New York confirmed WorldCom's Plan on Oct. 31, 2003, and on Apr. 20, 2004, the company formally emerged from U.S. Chapter 11 protection as MCI, Inc. * Schiffrin & Barroway Fortifies European Securities Practice ------------------------------------------------------------- The law firm of Schiffrin & Barroway, LLP, entered into a formal alliance with German firm Winheller Attorneys at Law in an attempt to protect European investments in U.S. securities, according to The Lawyer. The purpose of the alliance between the U.S.-based securities class action firm and Winheller is to support the rising number of European institutional investors bringing securities class actions or derivative litigation as a result of breaches in U.S. securities law. Stefan Winheller, a partner at the Frankfurt-based firm told The Lawyer, that European investors, including non-profit organizations, lose millions of dollars each year because they simply don't know that they can recover their losses as a result of violations of U.S. securities law. With the alliance will Schiffrin & Barroway be able to roll out its "securities tracker" advice service. That service aims to identify potential claims for damages as a result of corporate malfeasance, to clients in Germany, Austria and Switzerland. Asked for comment regarding the pact, Darren Check, a partner at Schiffrin & Barroway told The Lawyer that the firm believes that it can help in Germany. He also explains that they chose Winheller, since it has familiarity on both sides of the Atlantic. Philadelphia-headquartered Schiffrin & Barroway focuses on advising on shareholder litigation and is currently advising investors in lawsuits against Delphi Corp and Viacom. On the other hand Winheller, specializes in business law and advising non-profit organizations. For more details, contact Schiffrin & Barroway, LLP, 280 King of Prussia Road, Radnor, PA 19087, Phone: 610-667-7706, Fax: 610- 667-7056, E-mail: (U.S) info@sbclasslaw.com or (Outside U.S.) infosb@sbclasslaw.com, Web site: http://www.sbclasslaw.com/. Asbestos Alert ASBESTOS LITIGATION: Claims v. Ameron International Drop to 149 --------------------------------------------------------------- Ameron International Corp., as of Sept. 3, 2006, was faced with asbestos-related cases involving 149 claimants, according to the Company's quarterly report, on Form 10-Q for the period ended Sept. 3, 2006, filed with the U.S. Securities and Exchange Commission. As of June 4, 2006, the Company recorded asbestos-related cases involving 924 claimants, compared with 2,642 claimants as of March 5, 2006. (Class Action Reporter, July 21, 2006) For the quarter ended Sept. 3, 2006, the Company recorded six new claimants, dismissals and settlements involving 781 claimants, and no judgments. The multi-defendant personal injury lawsuits against the Company seek unspecified damages for asbestos-related diseases based on alleged exposure to products made by the Company and others. At this time, the Company is generally not aware of the extent of injuries allegedly suffered by the individuals or the facts supporting the claim that injuries were caused by the Company's products. During the quarter ended Sept. 3, 2006, the Company incurred less than US$100,000 in asbestos-related net costs and expenses. Based in Pasadena, Calif., Ameron International Corp. makes steel pipe, fiberglass-composite pipe, and reinforced concrete pipe for a variety of industrial uses, including chemical and petrochemical processing, water transmission, and sewage collection. ASBESTOS LITIGATION: Conn. Court Upholds Wing Suit v. HB Fuller --------------------------------------------------------------- The Superior Court of Connecticut denied H.B. Fuller Co.'s motion for summary judgment in the asbestos-related lawsuit filed by Patricia Wing. Judge David W. Skolnick handed down the decision of Case CV054010122S, which was filed on April 28, 2006. The instant motion was before the Court on H.B. Fuller's claim that Ms. Wing "has failed to identify any exposure to asbestos and asbestos containing products manufactured, distributed or sold by H.B. Fuller Co." On Sept. 27, 2005, H.B. Fuller took Ms. Wing's deposition. She testified further that, while she did not help with work, she was "around" while work was going on. According to Ms. Wing's memorandum in opposition, H.B. Fuller has "admitted in sworn answers to interrogatories" that from about 1969 to spring 1978, H.B. Fuller's Building Products Division made and sold products with asbestos. These products included "thin set products" with asbestos and H.B. Fuller explained that these products were also known as "TEC dry adhesives" whose asbestos content ranged from 0.68 percent to eight percent. The evidence in the Court's opinion presented a genuine issue of material fact for the trier of fact's consideration. ASBESTOS LITIGATION: H.B. Fuller Accrues $992T for Liabilities -------------------------------------------------------------- H.B. Fuller Co., as of Sept. 2, 2006, had accrued US$992,000 for probable asbestos-related liabilities and US$504,000 for insurance recoveries related to asbestos claims. As of June 3, 2006, the Company accrued US$1.053 million for probable asbestos-related liabilities and US$527,000 for insurance-related recoveries for asbestos claims. (Class Action Reporter, July 14, 2006) The Company and its subsidiaries have been named co-defendants in lawsuits in which plaintiffs have alleged injury due to asbestos-containing products made by the Company more than 20 years ago. In many of these cases, the plaintiffs are unable to demonstrate that they have suffered any compensable injuries or that the injuries suffered were from exposure to products made by the Company or its units. The Company is typically dismissed as a defendant in these cases without payment. A significant portion of the Company's asbestos-related defense costs and settlements continues to be paid by third parties, including indemnification under the provisions of a 1976 agreement under which the Company acquired a business from a third party. Moreover, the Company has insurance policies that generally provide coverage for asbestos liabilities, including defense costs. Historically, insurers have paid a significant portion of the defense costs and settlements in asbestos-related litigation involving the Company. In 2005, the Company and a number of its insurers entered into a cost-sharing agreement that provides for the allocation of defense costs, settlements and judgments among these insurers and the Company in certain asbestos-related suits. In 2004, the Company and a group of other defendants, including the third party obligated to indemnify the Company against certain asbestos-related claims, entered into negotiations with a group of plaintiffs to settle certain asbestos-related suits. As previously reported and accounted for during the 2004-3rd quarter, the Company agreed to contribute about US$3,522,000 towards the settlement to be paid in these cases in exchange for a full release of claims by the plaintiffs. Of this amount, the Company's insurers have agreed to pay about US$1,236,000. The Company and its insurers have transferred the required amounts into a trust established to disburse payments related to settlements. On Dec. 1, 2005, US$3,085,000 was paid out of the trust under the settlement. As of Sept. 2, 2006, the amount the Company and its insurers have remaining to pay out of the trust is up to US$437,000. During the first nine months of 2006, the Company accrued a total of US$605,000 for settlements of asbestos-related suits. The Company's insurers have paid or are expected to pay US$321,000 of this amount. Based in St. Paul, Minn., H.B. Fuller Co. makes adhesives, sealants, and powder coatings for metals and liquid paints. The Company's industrial and performance adhesives customers include firms in the packaging, graphic arts, automotive, footwear, woodworking, and non-woven textiles industries. ASBESTOS LITIGATION: Pending Claims v. GenCorp Increase to 155 -------------------------------------------------------------- GenCorp Inc., for the nine months ended Aug. 31, 2006, recorded 155 pending asbestos-related cases, compared with 152 cases for the year ended Nov. 30, 2005. The Company has from time to time been named as a defendant in lawsuits alleging personal injury or death due to exposure to asbestos in building materials, products or in manufacturing operations. Most of the suits have been filed in Madison County, Ill. and San Francisco, Calif. Since 1998, more than 200 of these asbestos suits have been resolved with the majority being dismissed. There were 155 asbestos cases pending as of Aug. 31, 2006. As of May 31, 2006, the Company faced about 150 pending asbestos-related cases. (Class Action Reporter, July 14, 2006) For the nine months ended Aug. 31, 2006, the Company recorded 48 claims filed, 40 claims dismissed, and five claims settled. The aggregate at settlement costs were US$67,000 and the average settlement costs were US$13,000. For the year ended Nov. 30, 2005, the Company recorded 149 claims filed, 65 claims dismissed, and two claims settled. The aggregate at settlement costs were US$52,000 and the average settlement costs were US$25,000. For the first nine months of fiscal 2006, the Company paid US$500,000 legal and administrative fees for asbestos cases. For fiscal 2005, legal and administrative fees for the asbestos cases were US$500,000, compared with US$1 million for fiscal 2004. Based in Rancho Cordova, Calif., GenCorp Inc., through its main subsidiary Aerojet-General, makes missile propulsion technologies for defense and space systems. Lockheed Martin accounts for about 40 percent of the Company's sales. ASBESTOS LITIGATION: Tex. Court Favors Armco Inc. in Brooks Suit ---------------------------------------------------------------- The Court of Appeals of Texas, Texarkana, affirmed judgment in favor of Armco Inc. in an asbestos-related lawsuit filed by Gercie Brooks on behalf of John B. Brooks, Jr. The Panel, comprised of Chief Justice Josh R. Morriss III, Justices William J. Cornelius and Donald R. Ross, handed down the decision of Case No. 06-04-00111-CV on May 17, 2006. Mrs. Brooks appealed from a take-nothing judgment rendered by the 62nd Judicial District Lamar County, Texas Trial Court against her. Mrs. Brooks alleged that Mr. Brooks, who worked for Armco for 22 years, died from mesothelioma caused by his exposure to asbestos-laden products while working at Armco's plant in Pasadena, Tex. Mrs. Brooks produced evidence that Mr. Brooks died from mesothelioma, but Armco produced medical evidence that Mr. Brooks died from adenocarcinoma, unrelated to asbestos exposure. The case was tried to a jury, which found against Mrs. Brooks on all issues. On appeal, Mrs. Brooks contended that she is entitled to a new trial because the Trial Court erred in: (1) Failing to strike three prospective jurors for cause; (2) Improperly restricting the hearing on her Batson-Edmonson challenges; and (3) Allowing Armco an extra peremptory challenge to replace the strike it used to remove a prospective juror on the basis of race. The Appeals Court overruled all of these contentions and affirmed the Trial Court's judgment. ASBESTOS LITIGATION: La. Court Favors Eaton Corp in Britton Suit ---------------------------------------------------------------- The Court of Appeal of Louisiana, Second Circuit, affirmed a Louisiana Trial Court's decision, which granted a motion filed by Eaton Corporation, in an asbestos-related lawsuit involving James R. Britton, who died on March 19, 2006. The Panel, comprised of Judges James E. Stewart, J. Jay Caraway, and D. Milton Moore III, handed down the decision of Case No. 41,028-CA on May 17, 2006. Walter Rodgers Britton and Cynthia Britton Francis sought reversal of the First Judicial District Court for the Parish of Caddo, La.'s judgment sustaining an exception of no cause of action filed by Eaton, and dismissing their claims with prejudice. On July 6, 1999, Mr. Britton and Mrs. Francis were named as plaintiffs in an ongoing asbestos-related lawsuit. They asserted wrongful death and survival actions for damages from the alleged long-term exposure to asbestos endured by their father, the elder Mr. Britton. A defendant in the suit, Eaton filed an exception of no cause of action on the grounds that the wrongful death action was barred by workers' compensation and that the survival action had expired by a peremptive period prior to being filed. At the hearing, the parties stipulated that the wrongful death claim was barred. However, Mr. Britton and Mrs. Francis' counsel said the elder Mr. Britton had filed a suit in Texas before his death and that the Texas suit against defendants, who would be liable for his damages, interrupted the running of prescription on the survival action. The Trial Court rejected counsel's argument and granted Eaton's exception. Mr. Britton and Mrs. Francis appealed. Review of the petition showed that the survival action was instituted on July 6, 1999, over three years from the date of Mr. Britton's death, March 19, 1996, and over the one-year peremptive time period allowed. The Appeals Court found the exception properly granted. The Appeals Court affirmed the Trial Court's judgment with costs assessed to Mr. Britton and Mrs. Francis. Jody E. Anderman and Jeffrey R. Nicholson of LeBlanc and Waddell, and Sherri A. Saucer of Baron & Budd represented Walter R. Britton and Cynthia B. Francis. H. Alston Johnson III, Jane H. Barney, and Annette N. Peltier of Phelps Dunbar represented Libbey Owens Ford Co., Eaton Corp., Aeroquip-Vickers Inc., and Trinova Corp. ASBESTOS LITIGATION: N.Y. Court Reverses Decision in Leeber Suit ---------------------------------------------------------------- The New York Supreme Court, Appellate Division, Third Dept., reversed the decision of the Workers' Compensation Board, which denied compensation to Frederick Leeber, in an asbestos-related payout case filed against Long Island Lighting Co. The Panel, comprised of Justices Thomas E. Mercure, D. Bruce Crew III, Karen K. Peters, Carl J. Mugglin, and Anthony T. Kane, handed down the decision of the case on May 18, 2006. Mr. Leeber was exposed to asbestos while he worked as a maintenance supervisor for Long Island Lighting Co. and its successor. A Workers' Compensation Law Judge found that Mr. Leeber suffered from occupational asbestosis and asbestosis-related pleural disease. The date of disablement was Nov. 30, 1998, the date when Mr. Leeber retired at the age of 55. While Mr. Leeber accepted an incentive package to retire, there was evidence that his retirement decision was related to his occupational disease. He has not sought work since retiring. The Judge found that Mr. Leeber has a permanent partial disability, that his decision to retire was based in part on his disability, and that he did not voluntarily withdraw from the labor market. Upon LILCO's administrative appeal, the Board affirmed the Judge's decision but held that Mr. Leeber would not be entitled to awards of compensation subsequent to the date on which he first testified that he had not sought any work after his retirement. Mr. Leeber appealed. The Supreme Court ruled that the Board erred in disallowing awards to Mr. Leeber on the ground that he had not sought employment within his physical limitations postretirement. The Supreme Court reversed the decision, with costs, and the matter was remitted to the Board for further proceedings. Frank Gulino of Brecher, Fishman, Pasternack, Popish, Heller, Reiff & Walsh, of New York City, N.Y., represented Frederick Leeber. David E. Faber of Cherry, Edson & Kelly, of Hempstead, N.Y., represented Long Island Lighting Co. and another respondent. ASBESTOS LITIGATION: Court Rejects Grace Appeal in $54M Cleanup --------------------------------------------------------------- The Supreme Court rejected W.R. Grace & Co.'s appeal to get out from under a US$54 million bill to clean up asbestos in the mining town of Libby, Mont., The Associated Press reports. Case No. 05-1363 is styled W.R. Grace & Co., et al, v. U.S. Justices rejected Grace's appeal of lower court rulings that said the Company was responsible for the entire cost of removing asbestos-contaminated soil in Libby. The case pits Grace against the U.S. Environmental Protection Agency, which oversees the federal Superfund program for the nation's worst hazardous waste sites. Grace argued that the U.S. EPA had no authority to hand the Company the entire bill, as well as responsibility for future costs, for the cleanup. The 9th Circuit U.S. Court of Appeals and a federal district judge sided with the U.S. EPA, which sued Grace in 2001 to recover cleanup costs. Grace said other appeals courts have ruled that companies cannot be forced to pay the entire cost of cleaning a polluted site without being allowed to challenge whether the cleanup was necessary to contain or remove contamination. EPA Administrator Stephen L. Johnson estimated in 2005 that it would take another five to six years to finish cleaning contaminated sites in Libby. Based in Columbia, Md., W.R. Grace & Co. was restructured from six product groups into two major units. Grace's Davison Chemicals unit makes silica-based products, chemical catalysts, and refining catalysts that help produce refined products from crude oil. Its Performance Chemicals unit makes concrete and cement additives, packaging sealants, and fireproofing chemicals. ASBESTOS LITIGATION: Fla. City Okays Settlement in CARES Lawsuit ---------------------------------------------------------------- The Marco Island City Council in Florida approved the settlement in an asbestos-related lawsuit filed by the Citizens Advocating Responsible Environmental Solutions (CARES) against Quality Enterprises USA, Naples Daily News reports. The Council unanimously granted the settlement with an anti- sewer political action committee. CARES sued the City and Quality Enterprises, alleging that illegal levels of asbestos had been released into the city due to a contractor's work on the city's highly contested sewer project. The suit also named City Manager Bill Moss and Public Works Director Rony Joel. Quality Enterprises is scheduled to pay US$32,500 to cover CARES attorney Samuel C. Gold's fees, but the City will have to cover its own attorney fees. Through the settlement, the City agreed to the creation of a Veterans Park Development Board. CARES will nominate up to four people to sit on board and the City will give US$100,000 from its five-year budget for master planning. The agreement lays the responsibility of recovering any asbestos-related remediation expenses on the City's shoulders. CARES released the City and Quality Enterprises from all the claims that had been made due to the suit or from any potential legal action relating to the Collier Boulevard Program. The political-action committee would issue a letter of support for the asbestos work plans submitted by the City and Quality Enterprises to the Florida Department of Environmental Protection and the Environmental Protection Agency. Doug Enman, CARES chairman, said, "It's not everything it could have been, but it's certainly good for the environment and for the taxpayers of Marco Island." ASBESTOS LITIGATION: Ex-worker Fears Exposure in Trebor Factory --------------------------------------------------------------- Ann Howe, a 62-year old former employee of Trebor Bassett, feared that volunteering to sweep the Company's Hillsborough, U.K. factory might have caused her asbestos-related illness, Yorkshire Post Today reports. Trebor Bassett is a U.K. confectionery company associated with confectionery including liquorice allsorts, jelly babies, and dolly mixture. The Company is a subsidiary of Cadbury Schweppes. For 30 years, Mrs. Howe worked in various capacities from a general factory worker to a machine operator to serving tea in the canteen. To earn extra money, she often volunteered to sweep and clean the factory during shutdowns and at weekends. However, when Mrs. Howe became affected by breathlessness, a chest X-ray at Sheffield's Northern General Hospital, showed she was suffering from diffuse pleural thickening, an asbestos- related lung condition. Personal injury lawyer Dominic Collingwood, an asbestos disease specialist at Corries Solicitors in York, works with Mrs. Howe to uncover further evidence as to whether asbestos at the Company may have released dust, which she inhaled when the factory was cleaned. Mr. Collingwood now appeals for anyone who worked at the Company during Mrs. Howe's time, who may have evidence about the presence of asbestos dust, to come forward. Mr. Collingwood said, "It is a frightening thought that, by volunteering to do overtime by cleaning the factory, Ann Howe may unwittingly have been ingesting fibers which have led to her present, highly-unpleasant illness but the timing fits and we know that asbestos was present on site." ASBESTOS LITIGATION: NSW Govt. Rejects Alternative Hardie Scheme ---------------------------------------------------------------- The New South Wales Government has rejected Signature Pacific's plan, which proposes to manage James Hardie Industries NV's asbestos illness-related liabilities, The Sydney Morning Herald reports. Signature Pacific is an unlisted company under deed of company arrangement and carrying AUD1.7 billion in tax losses. The Signature Pacific proposal was put forward by accounting firm Horwath and lobbied for by a former Federal Liberal Party leader, John Hewson. Kevin Shirlaw of Horwath is its administrator. Under the plan, Signature Pacific would assume James Hardie's liabilities and indemnify James Hardie against the liabilities up to a certain amount. Signature Pacific estimated that the plan would save James Hardie up to 30 percent on its AUD3.5 billion in nominal current and future claims. A James Hardie spokesman said, "James Hardie is committed to finding a long-term compensation arrangement for the asbestos issue. We remain hopeful of resolving the remaining taxation issues by continuing to work with the Federal Government's agencies and the NSW Govt. and other stakeholders." The deadline for finalizing the Special Purpose Fund was extended until the end of October 2006 amid continuing negotiations with the NSW Govt. over amendments to the agreement. The Special Purpose Fund has been in a holding pattern since the Australian Taxation Office refused to endorse the fund as a tax- exempt charity in June 2006. In 2001, James Hardie has established the Medical Research and Compensation Foundation to provide for the current and future claims, and acquired two former James Hardie subsidiaries, Amaca Pty Ltd. and Amaba Pty Ltd. Losses in these companies are estimated at AUD250 million. Based in Sydney, Australia, James Hardie Industries NV uses cellulose-reinforced fiber cement to create products for residential and commercial construction, including siding, external cladding, walls, fencing, and roofing. The Company makes fiber-reinforced concrete pipe through its Hardie Pipe business and roofing through Artisan Roofing. ASBESTOS LITIGATION: Council Says 200 U.K. Schools Have Hazards --------------------------------------------------------------- The Cumbria County Council in the United Kingdom has confirmed that almost 200 schools in Cumbria contain asbestos, News & Star reports. Surveys carried out over the last three years on schools run by the local education authority confirmed a small number are asbestos free. Kym Allan, the Cumbria County Council's manager of health and safety in schools, has said there is no danger to children, parents and staff in any of the schools adding that asbestos becomes dangerous once it is damaged. Details have emerged after Trinity School, the largest school of Cumbria's administrative center Carlisle, sealed off asbestos- lagged heating ducts in two of its oldest buildings, Creighton and Margaret Sewell, both of which are used by pupils aged 11-16 years and for adult education classes. Trinity, which has 1,884 pupils, had a detailed survey carried out in the first two weeks of August 2006 to identify where asbestos was located. Three classroom doors with asbestos fibers were replaced and there is restricted access to a boiler room. Asbestos in the boiler room will be removed during the October half-term owing to a GBP15,000 grant. Plastic manhole-like covers have sealed off the original 1930s and now unused heating ducts in Creighton and Margaret Sewell corridors. Trinity has been working closely with Cumbria County Council's health and safety unit to ensure they adhere to all safety requirements. The World Health Organization said that on average each person inhales more than 7,000 asbestos fibers each year. ASBESTOS LITIGATION: WCB Hits Snag in Quest for Ex-Grace Workers ---------------------------------------------------------------- Investigators for Manitoba's Workers Compensation Board have reached a dead end in their search for former workers of W.R. Grace & Co., who may have been exposed to asbestos-containing vermiculite decades ago, CBC News reports. Grace produced the Zonolite brand of asbestos at two Winnipeg, Manitoba processing plants between the 1940s and the 1980s. Heating vermiculite, from Grace's Libby, Mont. mine makes Zonolite. Hundreds of former Grace employees in the U.S. have fallen ill or died from asbestos-related cancers and other illnesses. In Manitoba, provincial officials had known of one former worker who had died from these causes. Early in 2006, a special investigations unit at the WCB was enlisted to search for former employees of the Winnipeg processing plants who may have become sick from asbestos exposure on the job years ago. The investigators were given 124 names of former Winnipeg employees dating back to 1972. They found 19 of those workers and started a number of asbestos-related claims. However, WCB spokesman Warren Preece said they have not found a single person since then. The remaining 105 workers could not be found. The WCB has informed all Manitoba physicians alerting them to the signs of asbestos-related illnesses and advising them to contact the WCB if they learn any of their patients ever worked at Grace. Mr. Preece added that because asbestos-related illnesses take decades to develop, people who worked for Grace in the 1960s or 1970s would likely be getting sick now. Based in Columbia, Md., W.R. Grace & Co. was restructured from six product groups into two major units. Grace's Davison Chemicals unit makes silica-based products, chemical catalysts, and refining catalysts that help produce refined products from crude oil. Its Performance Chemicals unit makes concrete and cement additives, packaging sealants, and fireproofing chemicals. ASBESTOS LITIGATION: Armstrong World to Allocate $738M to Trust --------------------------------------------------------------- Armstrong World Industries Inc., by Oct. 17, 2006, will distribute to the Asbestos Personal Injury Settlement Trust about US$738 million, according to a Company press release dated Oct. 10, 2006. On Oct. 2, 2006, in discharge of all of its present and future asbestos-related personal injury claims, the Company issued under its Fourth Amended Plan of Reorganization 36,981,480 Common Shares to the Trust. All present and future asbestos-related personal injury claims must be asserted against, and will be resolved by, the Trust, and those claims may not be asserted against the Company. On Oct. 2, 2006, the Company's Plan, dated Feb. 21, 2006, became effective and made way for the Company to emerge from proceedings under Ch. 11 of the U.S. Bankruptcy Code. (Class Action Reporter, Oct. 6, 2006) Based in Lancaster, Pa., Armstrong World Industries Inc.'s Floor Products unit produces vinyl sheet and tile, linoleum, specialty carpet, and hardwood flooring. Its Building Products unit produces acoustical ceilings and suspension systems, and its Cabinet Products makes hardwood, kitchen, and bathroom cabinets. The Company is a subsidiary of Armstrong Holdings Inc. ASBESTOS LITIGATION: Suits v. RPM Int'l. Units Rise to 10,934 ------------------------------------------------------------- Subsidiaries of RPM International Inc., as of Aug. 31, 2006, recorded a total of 10,934 active asbestos-related cases, compared with a total of 9,093 cases as of Aug. 31, 2005. As of May 31, 2006, the Company's subsidiaries had a total of 10,580 active asbestos cases, compared with 8,646 cases as of May 31, 2005. (Class Action Reporter, Sept. 8, 2006) Certain of the Company's wholly owned subsidiaries, mainly Bondex International Inc., face asbestos-related bodily injury lawsuits filed in various state courts with most of the current claims pending in five states, Illinois, Ohio, Mississippi, Texas and Florida. These cases seek unspecified damages for asbestos-related diseases based on alleged exposures to asbestos-containing products made by the Company's subsidiaries. In many cases, the plaintiffs are unable to demonstrate that any injuries they have incurred, in fact, resulted from exposure to one of the subsidiaries' products. In those cases, the units are generally dismissed without payment. For the quarter ended Aug. 31, 2006, the Company's subsidiaries secured dismissals and settlements of 232 claims and made total payments of US$16.4 million, which included defense costs paid during the current quarter of US$6.6 million. For the quarter ended Aug. 31, 2005, dismissals and settlements covered 392 claims and total payments were US$16.5 million, which included defense costs paid during the quarter of US$4.5 million. At the quarter ended Aug. 31, 2006, claim filings in Mississippi, Ohio, Texas, Florida, and Illinois comprise about 75 percent of the total aggregate claims filed against Bondex. Three of these states, Mississippi, Ohio, and Texas, provide for liability to be determined on a "proportional cause" basis, and limiting Bondex's responsibility to its share of the alleged asbestos exposure. Mississippi and Ohio have passed more legislation impacting medical criteria and product identification in asbestos-related litigation. Based in Medina, Ohio, RPM International Inc. makes home repair products. The Company is divided into two units: industrial products (waterproofing, corrosion resistance, floor maintenance, and wall finishing) and consumer products (caulks and sealants, rust-preventative and general-purpose paints, patch and repair products, and hobby paints). ASBESTOS LITIGATION: RPM Int'l. Records $58.5M Current Liability ---------------------------------------------------------------- RPM International Inc., for the quarter ended Aug. 31, 2006, recorded US$58,575,000 current asbestos-related liabilities, compared with US$58,925,000 for the year ended May 31, 2006. For the quarter ended Aug. 31, 2006, the Company recorded US$346,268,000 long-term asbestos-related liabilities, compared with US$362,260,000 for the year ended May 31, 2006. For the three months ended Aug. 31, 2006, the Company recorded US$10,523,000 change in asbestos-related liabilities, net of tax, compared with US$1,115,000 for the three months ended Aug. 31, 2005. At the end of fiscal 2006, the Company increased its reserve for asbestos claims by about US$335 million, while paying out US$12.9 million for dismissals and settlements resulting in its reserve moving from US$99.2 million at Feb. 28, 2006 to US$421.3 million at May 31, 2006. As of Aug. 31, 2006, the Company recorded about US$404.8 million asbestos-related reserves. For the three months ended Aug. 31, 2006, the Company recorded US$404,843,000 as the movement of current and long-term asbestos-related liabilities, compared with US$421,285,000 for the year ended May 31, 2006. The Company recorded a pre-tax asbestos charge during the 2005- 1st quarter of $15 million, and a total of US$380 million for the fiscal year ended May 31, 2006. During the 1st fiscal quarter ended Aug. 31, 2006, the Company did not record or incur any asbestos-related charge. Based in Medina, Ohio, RPM International Inc. makes home repair products. The Company is divided into two units: industrial products (waterproofing, corrosion resistance, floor maintenance, and wall finishing) and consumer products (caulks and sealants, rust-preventative and general-purpose paints, patch and repair products, and hobby paints). ASBESTOS LITIGATION: Ind. Man's Kin Sues 96 Firms in Ill. Court --------------------------------------------------------------- The estate of Claude Cassada, represented by daughter Valerie Anichini, filed an asbestos suit against 96 defendant firms in Madison County Circuit Court on Oct. 4, 2006, The Madison St. Clair Record reports. Mrs. Anichini seeks damages in excess of US$200,000, plus punitive damages in an amount to punish the defendants for their alleged misconduct. According to the complaint, on Dec. 22, 2005, Mr. Cassada died from mesothelioma. The suit alleged that he was from Indiana. The suit claimed Mr. Cassada was exposed to asbestos while employed as a laborer, factory worker and auto body repairman from 1960 to 2005. Mr. Cassada worked in Illinois at a point in his career, but the suit did not specify when or where. The suit further alleged that his exposure to asbestos was completely foreseeable and could or should have been anticipated by the defendants. Mrs. Anichini claimed the defendants included asbestos in their products when they knew asbestos fibers would have a harmful effect on the health of people absorbing them. She claimed the defendants included asbestos in their products when adequate substitutes were available, failed to provide warnings to people working with or around asbestos, and failed to conduct tests on asbestos-containing products in order to determine the hazards to workers. Nicholas Angelides, John Barnerd, and Perry Browder of SimmonsCooper in East Alton, Ill. represent Mrs. Anichini. The case has been assigned to Circuit Judge Daniel Stack. ASBESTOS LITIGATION: Man Appeals for Payout Bid v. Bromley NHS -------------------------------------------------------------- John Sachs, of Maidstone in the United Kingdom, appeals for his former colleagues at the old Farnborough Hospital to come forward to help him win compensation for his wife, Bromley Times reports. Mr. Sachs, 64 years old, claimed he was exposed to asbestos while working at the hospital in the early 1960s. He worked at the hospital, then located near Bromley South, between 1961 and 1962 when he was about 19. Mr. Sachs claimed that during this time asbestos materials were used in roofing and panels in the walls in the lower parts of the hospital. After being diagnosed with mesothelioma in July 2006, Mr. Sachs planned to sue Bromley NHS Trust but needs witnesses to help his case. Mr. Sachs' solicitor, Daniel Easton of Leigh Day and Co., said that they are keen to talk to former employees, particularly maintenance staff, engineers or cleaners who may have come into contact with asbestos. Mr. Easton said, "This case by its nature is difficult because of the amount of time that has passed but in saying that I would be reluctant to take on a case unless I thought it would win." Mr. Sachs would likely get benefits from the U.K. Government's Pneumoconiosis Workers Compensation fund but this would be minimal in comparison to remuneration from a civil claim. ASBESTOS LITIGATION: 5-Year Freeze on U.K. Compensation Lifted -------------------------------------------------------------- A five-year freeze on asbestos-related compensation claims throughout the United Kingdom has been lifted on Oct. 11, 2006, according to a Thompsons Solicitors press release dated Oct. 11, 2006. Turner & Newall Ltd.'s former workers will now be able to restart their claims for exposure to asbestos. Branches of Thompsons Solicitors throughout the U.K. are now working to ensure that hundreds of claimants who worked for T&N, a Federal-Mogul Corporation subsidiary, will receive their compensation. The workers, some of whom now suffer from mesothelioma, were exposed to asbestos every day during their working life at factories and plants throughout the United Kingdom. Over 100 former T&N and Newalls Insulation employees have died while waiting more than five years for their cash. The claims were frozen in 2001 after Federal-Mogul went into administration. Since then claimants and their families have been waiting for administrators to battle out an agreement with Federal-Mogul's insurers. In September 2006, claimants voted in favor of a compensation settlement by Federal-Mogul's administrators. Part of that deal, which will see claimants who worked for T&N after 1969 share a cash pot of GBP36 million, was approved by the High Court of Justice on Oct. 6, 2006. Employees and their families who worked for T&N before 1969 will share compensation worth GBP33 million. Both schemes are now ready to start receiving claims from victims' lawyers. Ian McFall, National Head of Asbestos Litigation at Thompsons Solicitors, said, "This is the final hurdle in what has been a five year battle to gain compensation for asbestos victims. We will be working hard to ensure claimants receive their compensation as soon as possible." ASBESTOS LITIGATION: Minn. Man Sues 77 Companies in Ill. Court -------------------------------------------------------------- Alden Scheer from Minnesota sued 77 defendant firms in an asbestos-related lawsuit filed on Oct. 3, 2006 in Madison County Circuit Court, The Madison St. Clair Record reports. Mr. Scheer seeks at least US$250,000 in damages for negligence, willful and wanton acts, conspiracy, and negligent spoliation of evidence among other allegations. Mr. Scheer alleged that he was exposed to asbestos while working from the 1940s to 1992 as a construction worker, press operator, cement laborer and cement finisher at various locations. Mr. Scheer claimed that during the course of his employment and during home and automotive repairs he was exposed to and inhaled, ingested or otherwise absorbed asbestos fibers from certain products he was working with and around. According to the complaint, Mr. Scheer was diagnosed with mesothelioma on Feb. 7, 2006. He claimed the defendants knew or should have known that the fibers contained in their products had a toxic, poisonous and harmful effect upon people's health. Mr. Scheer alleged that the defendants included asbestos in their products even when adequate substitutes were available and failed to provide any or adequate instructions concerning the safe methods of working with and around asbestos. He also claimed that the defendants failed to require and advise employees of hygiene practices designed to reduce or prevent carrying asbestos fibers home. The complaint said that Mr. Scheer suffers "great physical pain and mental anguish, and also will be hindered and prevented from pursuing his normal course of employment, thereby losing large sums of money." Nicholas Angelides, John Barnerd, and Perry Browder of SimmonsCooper in East Alton, Ill., represent Mr. Scheer. The case has been assigned to Circuit Court Judge Daniel Stack. ASBESTOS LITIGATION: U.K. Man Gets T&N Payout for Wife's Death -------------------------------------------------------------- Terry Tobin, a 76-year-old widower has been awarded an undisclosed amount after his wife, Dorothy, died from mesothelioma, Legal & Medical reports. As a young woman, Mrs. Tobin washed her father and brother's work clothes without realizing she was inhaling asbestos fibers. The two men worked at the Turner & Newall Ltd.'s asbestos factory in Cardiff and were also unaware that they were coming into contact with poisonous materials. In 1969, Mrs. Tobin's father, Jim Pottinger, died after developing an asbestos related disease and in 1999 her brother Jack died from mesothelioma. Mrs. Tobin's sister, Beryl, also came into contact with asbestos on the elder Mr. Pottinger's clothing and passed away from an associated disease. Mr. Tobin became one of the first to successfully make an asbestos claim against T&N, in which his claim could lead the way for other asbestosis and mesothelioma sufferers to claim personal injury compensation. ASBESTOS LITIGATION: Eternit Creates CHF1.25M Fund for Employees ---------------------------------------------------------------- Cement company Eternit has established a CHF1.25million (US$1 million) fund to help Swiss former employees suffering from asbestos-related illnesses, SwissInfo reports. The Company, based in Niederurnen, Glarus canton, was a Swiss and European producer of asbestos but had pulled out of the business between 1980 and 1990. The foundation would compensate affected people who work, or have worked, at Eternit's Swiss plants at Niederurnen and Payerne. The Company said that the foundation would also compensate surviving relatives, or people suffering from asbestos-related illnesses, who can prove a link between their condition and the two Swiss factories. The Asbestos Victims' Association, which represents the employees and their relatives, has welcomed the news. Anders Holte, president of Eternit and chairman of the newly established foundation, said, "Switzerland has a highly developed social security system. Suva, the Swiss national accident insurer, also recognizes work-related illnesses caused by asbestos." Mr. Holte said that to date 70 of the Company's former employees have died from asbestos-related illnesses, but claimed that in recent decades the Company "has acted correctly, on the basis of the facts known at the time." A number of suits against the Company or some of its principal former managers are going through the courts in Italy, France and Switzerland. The Company is alleged to have done little or nothing to protect its employees and the population from the dangers of asbestos, and of having failed to inform its workers of the risks. In Italy, the Turin-based public prosecutor Raffaele Guariniello is due to conclude a major investigation into asbestos (2,000 claims for damages) by the end of 2006. In Switzerland, there are cases pending in the Glarus cantonal courts, and the pressure on the Company is starting to mount. Suva expects between 50 and 70 more deaths from asbestos-related illnesses in the years ahead. Some experts have gone so far as to predict 3,000 deaths in the next 15 years. ASBESTOS LITIGATION: EPA Charges $49T Penalty to 5 Ariz. Schools ---------------------------------------------------------------- The U.S. Environmental Protection Agency has issued a total of US$49,200 in penalties to five charter schools in Arizona for asbestos violations, according to a U.S. EPA press release dated Oct. 5, 2006. Summit High School, GateWay Early College High School, Friendly House Academia Del Pueblo Elementary Charter School, Arizona School for the Arts, and Vicki A. Romero High School failed to conduct inspections to determine if asbestos-containing material was present in school buildings and failed to have an asbestos management plan. Enrique Manzanilla, the U.S. EPA's Communities and Ecosystems Division director for the Pacific Southwest region said, "Asbestos in schools has the potential for endangering the health of students, teachers, and others, including maintenance workers. The EPA takes these violations seriously, and applauds the schools for their rapid inspection and development of management plans." The following schools failed to inspect for asbestos-containing materials, failed to have a management plan, and were each fined US$11,700. Accredited inspectors later found asbestos in the schools: � Summit High School: During an inspection in November, the inspector discovered asbestos materials in eight different locations on the campus, including friable asbestos in a rooftop maintenance area. The school has implemented a management plan and removed the friable asbestos from the area. � GateWay Early College High School: In April 2005, the inspector found asbestos-containing materials in four locations. The Maricopa County Community College District opted to inspect the entire 125,000 square-foot building area, including sections of the building that the school does not occupy. The school has since submitted its management plan and cleared the entire building of the asbestos materials. � Friendly House Academia Del Pueblo Elementary Charter School and Arizona School for the Arts: Separate inspections found asbestos in the two schools. Both schools now have management plans that include the location of asbestos and how the schools will properly manage asbestos to reduce the risk of exposure. Vicki A. Romero High School was the only school found not to contain asbestos in its buildings. Before beginning operations in its building, the school was required to have a signed statement from the architect that the building does not contain asbestos materials. However, the school did not have a signed statement from the architect at the beginning of operations or conduct an inspection. The school also failed to maintain an asbestos management plan and was fined US$2,400. ASBESTOS LITIGATION: Japan Govt Offers Medical Exams to Retirees ---------------------------------------------------------------- Officials of Japan's Health, Labor, and Welfare Ministry said that in November 2006, the Ministry would offer free medical examinations for retirees who handled asbestos in the course of their work and whose companies went bankrupt, The Yomiuri Shimbun reports. The free examinations will be given at 198 hospitals and medical institutions nationwide. The Ministry estimates nearly 30,000 will undergo the checkups. Workers of asbestos-handling firms and most workers who have retired from those firms undergo regular medical examinations provided by the firms. However, retirees whose firms have closed down or gone bankrupt have not received the same right. Workers who may have inhaled asbestos undergo periodical health examination at their firms under the Industrial Safety and Health Law. Retirees who have developed symptoms caused by asbestos, including shadows on their chest revealed by X-rays, are issued with a health care handbook and offered free medical examinations twice a year. However, retirees who have no symptoms of asbestos-related diseases on retirement are not covered by the public medical examination service system. The Ministry advised the firms dealing in asbestos to provide retirees with health examinations in July 2005 through the labor bureaus and trade associations around the country. The Ministry found that several small and medium-sized enterprises that had closed down or gone bankrupt were reluctant to pay fees for medical checkups for their former employees. ASBESTOS LITIGATION: Eli Lilly & Co. to Launch Alimta in India -------------------------------------------------------------- Eli Lilly & Co. India announced the launch of Alimta, for use in combination with cisplatin, for the treatment of patients with malignant pleural mesothelioma, Express Pharma reports. Alimta, pemetrexed disodium, has also been approved as second line treatment for non-small cell lung cancer. Sandeep Gupta, CMD, Eli Lilly India said, "We are delighted to launch Alimta, the world's first approved treatment for malignant pleural mesothelioma, which reinforces our strong commitment to introduce innovative solutions from Lilly for benefit of patients in India." Dr. S.H. Advani, Chief of Medical Oncology, Jaslok Hospital in Mumbai, said, "This disease is difficult to treat since it is highly malignant and is often diagnosed at an advanced stage. Therapies like Alimta will offer some hope in such patients." Dr. Purvish Parikh, Professor and Head of Medical Oncology at Tata Memorial Hospital in Mumbai, said, "Approximately 10,000 to 15,000 people worldwide are diagnosed annually with malignant pleural mesothelioma. Most people do not learn that they have MPM until the disease has progressed to an advanced stage when treatment with surgery or radiation is no longer an option." In 2004, Alimta was approved in the United States. Since then, it has been approved in more than 70 countries and regions including the E.U., Australia, and Canada. New Securities Fraud Cases LOUDEYE CORP: Howard G. Smith Announces Wash. Stock Suit Filing --------------------------------------------------------------- The Law Offices of Howard G. Smith announces that a securities class action has been filed on behalf of shareholders who purchased securities of Loudeye Corp. between May 19, 2003 and Nov. 9, 2005. The class action was filed in the U.S. District Court for the Western District of Washington. The complaint alleges that defendants violated federal securities laws by issuing a series of material misrepresentations to the market during the class period concerning the company's operations and financial performance, thereby artificially inflating the price of Loudeye securities. No class has yet been certified in the above action. Interested parties have until Dec. 4, 2006, in which to move for lead plaintiff status. For more details, contact Howard G. Smith, Esquire, of Law Offices of Howard G. Smith, 3070 Bristol Pike, Suite 112, Bensalem, Pennsylvania 19020, Phone: (215) 638-4847 and (888) 638-4847, E-mail: howardsmithlaw@hotmail.com, Web site: http://www.howardsmithlaw.com. LOUDEYE CORP: Scott + Scott Files Securities Fraud Suit in Wash. ---------------------------------------------------------------- Scott + Scott, LLC, filed a class action against Loudeye Corp. and certain officers and directors on Oct. 10, 2006, in the U.S. District Court for the Western District of Washington. The action is on behalf of Loudeye securities purchasers during the period from May 19, 2003 through Nov. 9, 2005, for securities law violations. The complaint alleges that defendants made false and misleading statements and material omissions regarding the company's operations. As a result, the price of the company's securities was inflated during the Class Period, thereby harming investors. The complaint also alleges that Loudeye made false and misleading statements that deceived the investing public regarding its business, operations, management and the intrinsic value of Loudeye common stock. Meanwhile, the company raised almost $60 million through the sale of stock and warrants to private equity investors, while materially misrepresenting its business prospects. The complaint further alleges that Loudeye insiders have negotiated a merger with Nokia Corp. mainly for the purpose of insulating themselves from liability for their prior illicit and improper conduct. Contrary to the representations made by the company during the class period, the complaint states that Loudeye actually was operating well below guidance, was not successfully integrating its acquisitions and was suffering from severe financial and operational control deficiencies. Following each of these disclosures the company's share price declined precipitously -- falling from a class period high of almost $30.00 per share in late 2004 (adjusted to reflect May 2006 1:10 split), to less than $2.00 per share by the time that defendants announced that the remaining assets of the company would be sold to Nokia Corp. Interested parties have until Dec. 4, 2006, in which to move for lead plaintiff status. For more details, contact Scott + Scott, LLC, Phone: (800) 404- 7770 and (860) 537-5537, E-mail: scottlaw@scott-scott.com, Web site: http://www.scott-scott.com. TVIA INC: Faces Securities Fraud Violations Lawsuit in Calif. ------------------------------------------------------------- Tvia, Inc. and certain of its officers are facing a shareholder class action in the U.S. District Court for the Northern District of California. The lawsuit alleges violations of the federal securities laws and purports to seek damages on behalf of a class of shareholders who purchased common stock of Tvia during the period between Aug. 8, 2006 and Sept. 27, 2006. Tvia believes the lawsuit is without merit and intends to seek a dismissal of all charges. The suit is "Richardson v. TVIA, Inc. et al., Case No. 5:06-cv- 06304-RMW," filed in the U.S. District Court for the Northern District of California under Judge Ronald M. Whyte, with referral to Judge Patricia V. Trumbull. Representing the plaintiffs are Lionel Z. Glancy of Glancy & Binkow LLP, 1801 Avenue of The Stars, Suite 311, Los Angeles, CA 90067, Phone: 310-201-9150, Fax: 310-201-9160, E-mail: info@glancylaw.com; and Phillip Kim and Laurence M. Rosen both of The Rosen Law Firm, P.A., 350 Fifth Avenue, Suite 5508, New York, NY 10118, Phone: 212-686-1060, Fax: 212-686-1060 or 212- 202-3827, E-mail: lrosen@rosenlegal.com. ********* A list of Meetings, Conferences and Seminars appears in each Wednesday's edition of the Class Action Reporter. Submissions via e-mail to carconf@beard.com are encouraged. Each Friday's edition of the CAR includes a section featuring news on asbestos-related litigation and profiles of target asbestos defendants that, according to independent researches, collectively face billions of dollars in asbestos-related liabilities. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Frederick, Maryland USA. Glenn Ruel Senorin, Maria Cristina Canson, and Janice Mendoza, Editors. Copyright 2006. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $575 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Christopher Beard at 240/629-3300. * * * End of Transmission * * *