/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/070615.mbx C L A S S A C T I O N R E P O R T E R Friday, June 15, 2007, Vol. 9, No. 118 Headlines ADVANCED MEDICAL: Faces Calif. Suit Over Contact Lens Solution AVVO.COM: Lawyers Plan to Sue Over Rating Service on the Net CABOT CORP: To Settle Carbon Black Antitrust Suits for $10M CANNONDALE BICYCLE: Recalls Bicycles with Faulty Speed Forks CENTRAL PARKING: Faces Lawsuits in Tenn. Over Kohlberg Merger CYPRUS: Refugees Mull Suit Over 1974 Turkish Invasion Burden ESS TECHNOLOGY: Calif. Court Approves $3.5M Securities Suit Deal GRENADA: Former Ambassador Accused of Bilking Investors of $30M FIELDSTONE INVESTMENT: Faces Md. Litigation Over C-BASS Merger FIELDSTONE MORTGAGE: Ill. Court Approves FCRA Suit Settlement FIELDSTONE MORTGAGE: June Hearing Set for Arguments in "Hill" GEICO: Faces Suit in N.Y. Over No-Fault Auto Insurance Claims GLOBAL CROSSING: Microsoft and Softbank’s $3.8M Settlement Ok’d GOLD CITY: Recalls Toothpaste Made in China Due to DEG Content GREAT LAKES: Ohio Lawsuit Aims to Collect Unpaid Overtime Wages HANOVER INSURANCE: Former Employee Sues in Ky. Over Pension Plan HANOVER INSURANCE: Still Faces Hurricane Katrina-Related Suits HARMONIC INC: Parties in Cal. Securities Suit Enter Mediation HCC INSURANCE: Faces Securities Fraud Litigation in S.D. Tex. IMERGENT INC: No Amended Complaint Filed in Utah Securities Suit MUSICLAND HOLDING: Motion for Leave to File Late Claim Lodged NORTHWEST AIRLINES: Objections in Pensioners’ Suit Sustained NUTRAMERICA CORP: Aug. Hearing Set for Trimspa Suit Settlement PEOPLE'S CHOICE: Former Employees Request Class Certification REALOGY CORP: Aug. 16 Hearing Set for N.J. Shareholder Suit Deal SENDTEC INC: Fla. Judge Dismisses Securities Fraud Litigation STANLEY STAFFING: Faces Suit in Ohio Over Unpaid Overtime Wages TOWER AUTOMOTIVE: Brand Group Files Motion to Serve Subpoena TRUEBEGINNINGS LLC: Faces Suit Over True.com Membership Terms WESTERN BEEF: N.Y. Lawsuit Aims to Collect Unpaid Overtime Wages W.R. GRACE: Anderson Memorial Moves for Timely Discovery Asbestos Alert ASBESTOS LITIGATION: Court Junks Sherwin-Williams Motion in Suit ASBESTOS LITIGATION: Court Upholds Board Ruling in Solberg Case ASBESTOS LITIGATION: Fla. DEP Finds More Hazards on Marco Island ASBESTOS LITIGATION: Court Orders Scapa to Pay $832T in Damages ASBESTOS LITIGATION: Supreme Court OKs Widow’s New Trial v. CSX ASBESTOS LITIGATION: Smoker’s Heirs Sue Four Firms in Tex. Court ASBESTOS LITIGATION: 3 Automakers Object to Federal-Mogul’s Plan ASBESTOS LITIGATION: Suits v. Mallinckrodt Inc. Rise to 10,020 ASBESTOS LITIGATION: Kubota Corp. Pays JPY25M-JPY46M to Victims ASBESTOS LITIGATION: Smoker’s Kin Files Suit v. 43 Firms in Tex. ASBESTOS LITIGATION: Court Voids $169T Damages Award v. Mechanic ASBESTOS LITIGATION: Inquest Links Death to Husband’s Clothes ASBESTOS LITIGATION: Man’s Death Linked to Nuclear Plant Hazards ASBESTOS LITIGATION: Melbourne Univ. Delays Reopening of Center ASBESTOS LITIGATION: Machinist Sues Alton & Southern in Illinois ASBESTOS LITIGATION: Mass. Worker Files Exposure Suit on June 4 ASBESTOS LITIGATION: Contractor Pleads Guilty to CAA Violation ASBESTOS LITIGATION: U.S. EPA Sues Ariz. City for CAA Violations ASBESTOS LITIGATION: Libby, Mont. Locals Await W.R. Grace Ruling ASBESTOS LITIGATION: Two Groups to File Suit Against Northshore ASBESTOS LITIGATION: Court Grants DuPont’s Summary Judgment Move ASBESTOS LITIGATION: Exide’s French Unit Faces 64 Worker Claims ASBESTOS LITIGATION: Judge Orders Move to Fast Track 95T Claims ASBESTOS LITIGATION: Man to Pay $250T Fine for Disposal Breaches ASBESTOS LITIGATION: U.S. Senators Close on Deal to Ban Asbestos ASBESTOS LITIGATION: Lagger’s Daughter Gets MoD’s GBP25T Payout ASBESTOS LITIGATION: MP Brings Asbestos Campaign to Parliament ASBESTOS LITIGATION: Study Says Disease Affects Younger Patients ASBESTOS LITIGATION: USG Corp. Establishes P.I. Settlement Trust ASBESTOS LITIGATION: Dockhand’s Widow Gets GBP177T Compensation ASBESTOS LITIGATION: Coroner Links Pensioner’s Death to Hazards ASBESTOS LITIGATION: U.K. Inquest Links Worker’s Death to Hazard ASBESTOS LITIGATION: Teachers Told to Ensure Hazard-Free Schools ASBESTOS LITIGATION: Grace Moves to OK Trumbull Claim Settlement ASBESTOS LITIGATION: Mont. Plaintiffs Argue Stay of BNSF Action ********* ADVANCED MEDICAL: Faces Calif. Suit Over Contact Lens Solution -------------------------------------------------------------- The law firms Lieff Cabraser Heimann & Bernstein, LLP, and Moscone, Emblidge & Quadra, LLP, announces that Alexis Degelmann and Joseph Lin filed the first nationwide consumer class action against Advanced Medical Optics, Inc. (AMO), in the U.S. District Court in San Francisco, seeking reimbursement for their purchases of Complete MoisturePlus Multi-Purpose Solution. Messrs. Degelmann and Lin, both residents of Northern California, purchased and used Complete MoisturePlus Multi-Purpose Solution to disinfect their contact lenses. "AMO aggressively marketed Complete MoisturePlus Multi-Purpose Solution as an effective contact lens disinfectant that doctors recommended," stated Wendy R. Fleishman, a partner at Lieff Cabraser. "This advertising campaign was false. Users of AMO's Complete MoisturePlus Multi-Purpose Solution, according to government health officials, carry a seven-fold increased risk of developing an extremely painful infection of the cornea that can lead to blindness." "The complaint charges that when AMO introduced its contact lens solution to the national market," explained James A. Quadra, a partner at Moscone, Emblidge & Quadra, "it was aware of studies showing that the disinfectant in its solution was inferior to other solutions. AMO owes consumers nationwide a full refund equal for their purchases of its product." Joseph Lin, one of the plaintiffs in the nationwide class action, said, "I thought the solution I was buying was the best on the market. I didn't know that it could damage my eyes." On May 25, 2007, the U.S. Food and Drug Administration alerted health care professionals and their patients who wear soft contact lenses about a voluntary recall of AMO's Complete MoisturePlus Multi-Purpose. The recall was undertaken because of reports of a link between a rare, but serious eye infection, Acanthamoeba keratitis, caused by a parasite and use of AMO's contact lens solution. The Complaint charges that AMO's contact lens solution was ineffective in preventing the growth of protozoa microorganisms, including "acanthameoba." The protozoa acanthameoba are directly associated with a disproportionate risk and increased incidence of Acanthamoeba keratitis in users of contact lens solution products. The infection can be chronic, resistant to treatment, and require surgical interventions. It also can lead to blindness. The class action has been filed on behalf of all purchasers throughout the U.S. who brought the AMO solution from June 2003 to the present. Plaintiffs seek the return of all payments they made to AMO for its solution. For more information, contact: Wendy R. Fleishman Lieff Cabraser Heimann & Bersteing, LLP 780 Third Avenue, 48th Floor New York, NY 10017 Phone: (212) 355-9500 E-mail: wfleishman@lchb.com - and - James A. Quadra Moscone, Emblidge, & Quadra LLP 220 Montgomery Street, Suite 2100 San Francisco, California 94104-4238 Phone: (415) 362-3599 E-mail: quadra@meqlaw.com AVVO.COM: Lawyers Plan to Sue Over Rating Service on the Net ------------------------------------------------------------ A Seattle attorney intends to file a class action against a one-week old Web site that rates lawyers, Jane McCarthy of King 5 News reports. Class-action lawyer Steve Berman finds the site misleading and says "Because the way I look at the site, it's purporting itself as a reliable rating service for lawyers, and to me that's a violation of the Consumer Protection Act because it has the capacity to deceive people because it's not reliable.” Attorney Mark Britton launched Avvo.com, a site that profiles lawyers nationwide, a week ago. Mr. Britton says its ratings are based on public records as well as published sources, which include lawyers’ Web sites. Mr. Berman, who was rated “superb” by the site, was alarmed when he found out that some prominent attorneys ranked low, like John Browne, lead plaintiff in the class action. He said Mr. Browne has received all kinds of awards. In fact, there were two clients who were supposed to hire him last week but declined because of his poor rating. In response, Avvo said the rating was tied in part to a disciplinary action by the Washington State Bar Association. Avvo believes there are no legitimate grounds for this action. The complainants have not yet decided whether to bring the case to a state or federal court. Plaintiffs’ counsel is: Steve W. Berman, Esq. Hagens Berman Sobol Shapiro, LLP 1301 Fifth Avenue, Suite 2900 Seattle, Washington 98101 Phone: 206-623-7292 Facsimile: 206-623-0594 Web Site: http://www.hbsslaw.com CABOT CORP: To Settle Carbon Black Antitrust Suits for $10M ----------------------------------------------------------- Cabot Corp. agreed to settle class actions accusing it and other defendants of conspiring to fix, raise, maintain or stabilize prices for carbon black sold in the U.S. in 2003, The Boston Business Journal reports. Under the settlement, Boston-based Cabot (NYSE: CBT), a maker of specialty chemicals, said its share of the settlement cost is $10 million. During fiscal years 2003 and 2004, the company and Phelps Dodge Corp., Columbian Chemicals Co., Degussa Engineered Carbons, LP, Degussa AG, and Degussa Corp. were named in nine actions filed in Superior Court of the State of California on behalf of a purported class of indirect purchasers of carbon black in the state of California from as early as November 1998 to the present (Class Action Reporter, Dec. 20, 2006). During fiscal years 2004 and 2005, the company and the above defendants were named in actions filed in state courts in the states of Florida, Kansas, Tennessee, South Dakota, North Carolina and New Jersey on behalf of all indirect purchasers of carbon black in these respective states. Each of these complaints asserts violations under the applicable state laws for conduct that is similar to what is alleged in the federal cases described above. Plaintiffs in the state actions also seek treble damages in an unspecified amount and attorneys' fees. On June 12, 2007, Cabot agreed to settle the federal class actions pending against it in the U.S., the company said in its June 13 Form 8-K filing with the U.S. Securities and Exchange Commission. Cabot denies any wrongdoing of any kind in these cases, and strongly believes that it has good defenses to these claims. Nonetheless, Cabot agreed to the settlement to avoid further expense, inconvenience, risk and the distraction of burdensome and protracted litigation. The settlement agreement is subject to court approval. Cabot will continue to vigorously defend the remaining antitrust lawsuits pending against it. There are suits pending in several state courts brought by purported classes of indirect purchasers of carbon black, and a single federal case brought by a party that did not join the federal class action. CANNONDALE BICYCLE: Recalls Bicycles with Faulty Speed Forks ------------------------------------------------------------ Cannondale Bicycle Corp. of Bethel, Conn., in cooperation with the U.S. Consumer Product Safety Commission, is conducting a voluntary recall of nearly 6,700 units of Mountain Bicycles with Lefty Speed SL and Lefty Speed DLR Forks. The firm said the forks can break during use causing the rider to lose control of the bicycle, fall and suffer serious injuries. Cannondale has received 15 reports of the bicycle forks separating, including five reports of injuries including a broken collarbone, a concussion, broken ribs and bruises. The carbon or aluminum bicycle forks were sold on Cannondale mountain bicycle models as listed: Bicycle model code, product Retail price Lefty Speed Carbon SL 2007 Taurine Carbon Team Replica $5500 2007 Scalpel 1 $5000 2007 Scalpel Team Replica $5500 2007 Rush Carbon 1 $6000 2007 Rush Carbon Team $6500 2007 aftermarket, replacement Lefty Speed Carbon SL forks $1400 Lefty Speed DLR 2 (including bonded, 100mm and 80mm) 2007 Rush Carbon 2 (This model also included in the $4500 recall for Cranksets) 2007 Rush 3 $2600 2007 Rush 4 $2100 2007 Rush 5 $1700 2007 Caffeine 29’er $1600 2007 Scalpel 2 $3500 2007 Scalpel 3 $2600 2007 Caffeine 1 $2200 2007 Caffeine 2 $1600 2007 Rush Feminine 1 $2000 2007 aftermarket, replacement Lefty Speed (bonded, $950 100mm and 80mm) DLR 2 2008 Rush Carbon 3 $3500 These bicycles were manufactured in the U.S. and were sold at authorized Cannondale dealers from June 2006 through May 2007 for between $1,600 and $6,500. Consumers should stop using these bicycles immediately. Cannondale dealers will repair these forks at no charge. Owners of these bicycles may call Cannondale’s toll free number: 800- BIKEUSA (245-3872) between 9 a.m. and 5 p.m. ET Monday through Friday or visit the firm’s Web site at http://www.cannondale.com CENTRAL PARKING: Faces Lawsuits in Tenn. Over Kohlberg Merger ------------------------------------------------------------- Central Parking Corp. faces two putative class actions in the Chancery Court for the State of Tennessee, 20th Judicial District, Davidson County over its merger with an affiliate of Kohlberg & Company, LLC, Lubert-Adler Partners, L.P. and Chrysalis Capital Partners, L.P., according to the company’s May 10, 2007 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 21, 2007. The complaints (case numbers 07-87-III and 07-397-I) in these actions allege that the directors breached their fiduciary duties of due care, loyalty, good faith, candor, and independence and put their personal interests ahead of the interests of Central Parking’s shareholders. Plaintiffs seek to prohibit permanently the merger, to rescind the merger to the extent it is consummated, an award of damages, attorneys’ fees and other relief. Central Parking Corp. -- http://www.parking.com-- is a provider of parking and related services. During the fiscal year ended September 30, 2006, it operated 3,055 parking facilities containing 1,403,055 spaces in 37 states, the District of Columbia, Canada, Puerto Rico, Chile, Colombia, Peru, the United Kingdom, the Republic of Ireland, Spain, Poland, Greece and Switzerland. It operates or manages multi-level parking facilities and surface lots. It also provides ancillary services, including parking consulting, shuttle bus, valet, parking meter collection, and enforcement and billing services. It operates parking facilities under three general types of arrangements: management contracts, leases and fee ownership. CYPRUS: Refugees Mull Suit Over 1974 Turkish Invasion Burden ------------------------------------------------------------ Nearly 20 refugees intend to file a class action against the Republic of Cyprus over unfair division of burden from the 1974 Turkish invasion, Cyprus Mail reports. The group had already met several times and sought legal advice. In fact, they plan to hold meetings in different districts and villages as well to cover more refugees soon. The suit will be centered on how non-refugees were enriched at the expense of refugees’ losses. They argue that they suffered a lot from the invasion and that despite the assistance they receive, no effort was made for the equal division of burden. As a result, they are the ones paying for the cost of occupation. They further allege that land prices in the free areas are escalating unfairly and disproportionately. According to the soon-to-be plaintiffs, the action didn’t exclude refugees who had already sued Turkey in the European Court of Human Rights. But they announced that they won’t invite those who have political affiliations to avoid politicizing the issue. They do not ask for property, even though they lost almost everything. Rather, they want compensation for loss of income in the past 33 years. Plaintiffs’ lawyer, Pavlos Angelides, is convinced the case has merit. He said the case will be based on a precedent concerning German refugees following World War II. It was ruled that the burden of war had to be shared among all Germans. For more information, contact the plaintiffs’ counsel: Pavlos Angelides, Esq. Papacharalambous & Angelides Law Office 10 Themistoclis Dervis Street, 1st Floor, P.O Box 24901, 1305 Nicosia, Cyprus Phone: (0035722) 670189, 673198, 670908 Fax: (0035722) 676976, 674158, 674595 Website: http://www.palaw.com.cy E-mail: office@palaw.com.cy ESS TECHNOLOGY: Calif. Court Approves $3.5M Securities Suit Deal ---------------------------------------------------------------- The U.S. District Court for the Northern District of California gave preliminary approval to a proposed $3.5 million settlement of the securities fraud class action against ESS Technology, Inc., and certain of its present and former officers and directors. On Aug. 12, 2002, following the company's downward revision of revenue and earnings guidance for the third fiscal quarter of 2002, a series of putative federal class actions were filed against the company in the U.S. District Court for the Northern District of California. Complaints alleged that the company and certain of its present and former officers and directors made misleading statements regarding the company's business and failed to disclose certain allegedly material facts during an alleged class period of Jan. 3, 2002 through Aug. 12, 2002, in violation of federal securities laws. These actions were consolidated and are proceeding under the caption, "In re ESS Technology Securities Litigation." Plaintiffs seek unspecified damages on behalf of the putative class. They later amended their consolidated complaint on Nov. 3, 2003, which the company then moved to dismiss on Dec. 18, 2003. On Dec. 1, 2004, the court granted in part and denied in part the company's motion to dismiss, and struck from the complaint allegations arising prior to Feb. 27, 2002. On Dec. 22, 2004, based on the court's order, the company moved to strike from the complaint all remaining claims and allegations arising prior to Aug. 10, 2002. On Feb. 22, 2005, the court granted the company's motion in part and struck all remaining claims and allegations arising prior to Aug. 1, 2002 from the complaint. In an order filed on Feb. 8, 2006, the court certified a plaintiff class of all persons and entities who purchased or otherwise acquired the company's publicly traded securities during the period beginning Aug. 1, 2002, through and including Aug. 12, 2002. On March 24, 2006, plaintiff filed a motion for leave to amend their operative complaint, which the Court denied on May 30, 2006. Trial was tentatively set for January 2008. On Nov. 12, 2006, the parties attended a mediation at which they agreed to settle the litigation for $3.5 million (to be paid by defendants’ insurance carriers), subject to appropriate documentation by the parties and approval by the Court. The Stipulation of Settlement and Release was filed with the Court on April 30, 2007. On May 8, 2007, the Court issued an order preliminarily approving the settlement and providing for class notice. Pending final court approval, discovery in the action remains stayed. The suit is "In re ESS Technology, Inc. Securities Litigation, Case No. 02-CV-4497," filed in the U.S. District Court for the Northern District of California under Judge Ronald M. Whyte with referral to Judge Howard R. Lloyd. Representing the plaintiffs is: Patrick J. Coughlin, Esq. Lerach Coughlin Stoia Geller Rudman & Robbins LLP 100 Pine Street, Suite 2600 San Francisco, CA 94111 Phone: 415/288-4545 Fax: 415-288-4534 E-mail: patc@lerachlaw.com Representing the defendants is: Meredith N. Landy, Esq. O'Melveny & Myers 2765 Sand Hill Road Menlo Park, CA 94025-7019 Phone: 650.473.2600 Fax: 650.473.2601 E-mail: mlandy@omm.com GRENADA: Former Ambassador Accused of Bilking Investors of $30M --------------------------------------------------------------- Eric E. Resteiner, former ambassador for Grenada, is facing a class-action complaint filed June 11 in the U.S. District Court for the Eastern District of New York, accusing him of duping about 50 individuals out of more than $30 million through an international bank-trading investment scheme, the CourtHouse News Service reports. Named plaintiff Charles Howland -- who claims to have personally lost $140,000 in the scam -- alleges that while serving as general ambassador, Mr. Resteiner operated a global mail fraud scheme that offered purported high- yield investment programs, promising high returns and no risk to investors. The complaint also alleges Mr. Resteiner shared the spoils with Grenada’s prime minister. Mr. Resteiner was allegedly able to continue defrauding investors because he gave Prime Minister Dr. Keith Mitchell a hefty cut of his profits in cash, demonstrating that Mr. Mitchell “knowingly shared in the spoils of an enormous pattern fraud,” investors claim. Mr. Resteiner’s former security director testified that he had secretly videotaped Mr. Resteiner in 2000 passing $500,000, in a briefcase full of $100 bills, to Dr. Mitchell during a private meeting at Mr. Resteiner’s home in Switzerland. He is currently serving more than seven years in prison for mail fraud and other charges. Plaintiff requests entry of judgment for damages proved at trial as well as punitive damages, for interest, statutory interest according to law, costs, expenses, attorney fees and for such further and other relief as may be ordered by the Court. A copy of the complaint is available free of charge at: http://ResearchArchives.com/t/s?20ea The suit is “Howland v. Resteiner et al., Case No. 1:07-cv-02332-ILG-SMG,” filed in the U.S. District Court for the Eastern District of New York, under Judge I. Leo Glasser, with referral to Judge Steven M. Gold. Representing plaintiffs is: Daniel L. Abrams Law Office of Daniel L. Abrams, PLLC 2 Penn Plaza, Suite 1910 New York, NY 10121 Phone: 212-292-5663 Fax: 646-536-8905 E-mail: dan@lawyerquality.com FIELDSTONE INVESTMENT: Faces Md. Litigation Over C-BASS Merger -------------------------------------------------------------- Fieldstone Investment Corp. faces a purported shareholder class action in Howard County Circuit Court, Maryland, seeking to block the acquisition of Fieldstone Investment Corp. by Credit-Based Asset Servicing and Securitization, LLC, (C-BASS), according to the company’s May 10, 2007 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 21, 2007. On March 1, 2007, a purported stockholder class action related to the Company’s pending merger with C-BASS was filed, naming the Company, each of its directors, and C-BASS as defendants. The lawsuit, “Richard Tibbets v. Fieldstone Investment Corp., et al. Case No. 13-C-07-68321,” alleges, among other things, that the price per share to be paid to common shareholders in connection with the merger is inadequate, that the individual director defendants breached their fiduciary duties to common shareholders in negotiating and approving the merger agreement and have breached the duty of candor by failing to provide shareholders information adequate to make an informed voting decision in connection with the merger, and that the Company and C-BASS aided and abetted the director defendants in such alleged breach. The complaint seeks the following relief: -- a declaration that the lawsuit is properly maintainable as a class action and certification of the plaintiff as a class representative; -- a declaration that the director defendants have breached their fiduciary duties owed to the plaintiff and other members of the class, and that the Company and C-BASS aided and abetted such breaches; -- an injunction of the merger; -- requiring the Company’s Board of Directors to obtain the best possible price in connection with a possible sale of Fieldstone; and -- an award of attorneys’ and experts’ fees to the plaintiff. Columbia, Maryland-based Fieldstone Investment Corp. (FIC) -- http://www.fieldstoneinvestment.com-- is an integrated mortgage banking company that originates, securitizes, sells and services single-family residential mortgage loans. It operates as a real estate investment trust (REIT). FIC originates loans for borrowers through its subsidiary, Fieldstone Mortgage Co. During the year ended Dec. 31, 2006, the Company originated loans through two primary channels: wholesale and retail. These two channels constitute its two production segments. The wholesale segment originates non-conforming loans, and the retail segment originates both non- conforming and conforming mortgages. FIC also has investment portfolio and corporate segments. Prior to 2006, FIC structured its business through a non- conforming channel and a conforming channel. FIELDSTONE MORTGAGE: Ill. Court Approves FCRA Suit Settlement ------------------------------------------------------------- The U.S. District Court for the Northern District of Illinois approved the settlement reached in a class action filed against Fieldstone Mortgage Co. over alleged violations of the Fair Credit Reporting Act. The suit was filed on Jan. 9, 2006 under the caption, "Rhodes v. Fieldstone Mortgage Co." In it plaintiff claims that the company violated the firm offer of credit guidelines encapsulated in the FCRA during its mail marketing campaign in or around April 2005. Specifically, plaintiff alleges that the company did not comply with the statutory guidelines in providing a firm offer of credit to the potential consumer. Pursuant to the FCRA, statutory damages can range from $100 to $1,000 per mailing in the event that the violation is deemed willful. In July 2006, plaintiff filed a motion for class certification. In August 2006, the parties engaged in a mandatory settlement conference and have agreed in principal to settlement terms. The final terms of the settlement agreement were approved by the trial court on March 7, 2007, and include a payout to the class (including the class representative) and plaintiff’s attorney for attorney’s fees and costs in an amount of approximately $0.5 million, which has been scheduled for the second quarter of 2007. The suit is "Rhodes v. Fieldstone Mortgage Co., Case No. 1:06- cv-00108," filed in the U.S. District Court for the Northern District of Illinois under Judge Mark Filip. Representing the plaintiffs are: Daniel A. Edelman, Esq. Jeremy Patrick Monteiro, Esq. Edelman, Combs, Latturner & Goodwin, LLC 120 South LaSalle Street, 18th Floor Chicago, IL 60603 Phone: (312) 739-4200 E-mail: courtecl@edcombs.com jmonteiro@edcombs.com Representing the defendants are: Robert Jerald Emanuel, Esq. Burke, Warren, MacKay & Serritella, P.C. 330 North Wabash Avenue, 22nd Floor Chicago, IL 60611-3607 Phone: (312) 840-7000 E-mail: remanuel@burkelaw.com - and - Sunny S. Huo, Esq. Severson & Werson One Embarcadero Center, Suite 2600 San Francisco, CA Phone: 415-677-5519 FIELDSTONE MORTGAGE: June Hearing Set for Arguments in "Hill" ------------------------------------------------------------- Oral arguments on the appeal regarding the dismissal by the Circuit Court for Baltimore City, Maryland of the purported class action, "Hill, et al. v. Fieldstone Mortgage Co., et al.," are set to take place on June 2007. Plaintiffs, who are two individuals who obtained in 1998 a $28,000 second mortgage loan from Fieldstone Mortgage secured by their residential property, filed the class action on Jan. 16, 2002. The was brought against Fieldstone Mortgage and 10 other mortgage lenders that plaintiffs contend are or were the assignees of second mortgage loans in Maryland made by Fieldstone Mortgage. The lawsuit alleges, among other things, that: -- the defendants violated the Maryland Second Mortgage Loan Law, or SMLL, by failing to obtain the necessary license to provide a second mortgage loan and by charging fees unauthorized by the SMLL; and -- the defendants violated the Maryland Consumer Protection Act by engaging in conduct contrary to the provisions of the SMLL. The suit seeks a declaratory judgment that their mortgage contract is illegal and, therefore, that they do not need to honor their obligation to repay the second mortgage loan. Plaintiffs also seek monetary damages in the amount of $300,000. Fieldstone Mortgage, and each of the other defendants, filed motions to dismiss asserting that, among other things: -- the plaintiffs' claims are barred by the applicable three-year statute of limitations; -- the plaintiffs' failed to properly plead a claim under the Maryland Consumer Protection Act; and -- the plaintiffs' request for a judicial declaration that their mortgage contract is illegal is not a remedy available under either Maryland statutory or common law. The circuit court heard oral arguments on the motions to dismiss in January 2003. To the date of the company’s May 10, 2007 Form 10-Q filing, the court has not ruled on this motion. The lawsuit was consolidated with 14 other class actions with identical claims against other mortgage lenders. No motion for class certification was filed in this case. On March 30, 2006, the court held a status conference with regard to this matter. The court requested supplemental briefings on the outstanding issues from the parties. On Aug. 25, 2006, the court dismissed this case as to all lenders, claiming that plaintiff’s arguments were timed-barred by the statute of limitations. The plaintiffs have appealed this ruling, and oral arguments on the appeal are scheduled for June 2007, according to the company’s May 10, 2007 Form 10- Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 21, 2007. Columbia, Maryland-based Fieldstone Investment Corp. (FIC) -- http://www.fieldstoneinvestment.com-- is an integrated mortgage banking company that originates, securitizes, sells and services single-family residential mortgage loans. It operates as a real estate investment trust (REIT). FIC originates loans for borrowers through its subsidiary, Fieldstone Mortgage Co. During the year ended Dec. 31, 2006, the Company originated loans through two primary channels: wholesale and retail. These two channels constitute its two production segments. The wholesale segment originates non-conforming loans, and the retail segment originates both non- conforming and conforming mortgages. FIC also has investment portfolio and corporate segments. Prior to 2006, FIC structured its business through a non- conforming channel and a conforming channel. GEICO: Faces Suit in N.Y. Over No-Fault Auto Insurance Claims ------------------------------------------------------------- GEICO faces a purported class action in New York County Supreme Court accusing it of running a racketeering scheme by denying no-fault auto insurance claims before its covered customers had the chance to submit medical reports. According to complaint obtained by Court House News Service, GEICO bases its denial of claims on a “quick sheet,” in which no-fault vendors report that coverage will be denied before the medical reports are in. The complaint further states that GEICO refuses to put the quick sheets in its insured’s no-fault file, “because Geico knows that using these ‘quick sheets’ as a basis for denial of claims is wrongful, improper and invalid.” Using the quick-sheet scheme, the defendant fraudulently terminates many customers’ no-fault benefits several weeks earlier than it normally would. Freddie Bynum, who is represented by attorney Herbert Waichman of Parker & Waichman, filed the suit. He claims that GEICO denied his claim at least two to three weeks before it received his medical reports from three independent examinations. Mr. Bynum says that the company owes damages under the federal Racketeering Influenced Corrupt Organizations Act (RICO). For more details, contact: Herbert L. Waichman Parker Waichman Alonso LLP 111 Great Neck Road, Great Neck, NY 11021 Phone: (800) 529-4636 and (516) 466-6500 Fax: (516) 466-6665 Web site: http://www.yourlawyer.com GLOBAL CROSSING: Microsoft and Softbank’s $3.8M Settlement Ok’d --------------------------------------------------------------- The Southern District of New York preliminarily approved a $3.8 million settlement with Microsoft and Softbank in relation to allegations of securities fraud filed against financial institutions that did business with Global Crossing. This case is pending in the federal court for the Southern District of New York. Grant & Eisenhofer is lead counsel for the plaintiff class. On January 28, 2003, the Consolidated Class Action Complaint was filed. The Complaint asserts federal securities claims on behalf of all purchasers of Global Crossing securities between February 1, 1999 and January 28, 2002 against various defendants, including current and former officers and directors of Global Crossing, Arthur Andersen, Salomon Smith Barney and other financial institutions. On August 11, 2003, an Amended Consolidated Class Action Complaint was filed for the purpose of asserting federal securities claims on behalf of all purchasers of Asia Global Crossing securities between October 6, 2000 and November 17, 2002 against various defendants, including current and former officers and directors of Asia Global Crossing, Arthur Andersen, Salomon Smith Barney and other financial institutions. On November 10, 2004, the Court approved a settlement with the Global Crossing-related defendants, including Gary Winnick, and Simpson Thacher & Bartlett, Global Crossing's former outside counsel. The value of the settlement is approximately $245 million (subject to fluctuations in the U.S. dollar/U.K. pounds exchange rate). On July 8, 2005, the Court approved a $75 million settlement between the plaintiffs and Citigroup-related defendants (Salomon Smith Barney and Jack Grubman) was announced. Information concerning the settlement and the Proof of Claim form are available at http://www.globalcrossinglitigation.com. On October 27, 2005, the Court approved a $25 million settlement with Arthur Andersen LLP and all Andersen-related defendants. On October 27, 2006, the Court approved a $99 million settlement with various financial institutions including Goldman Sachs, Merrill Lynch, JP Morgan, CIBC and others. CIBC is paying $16.5 million toward the settlement. The remaining $82.5 million is being paid by the other settling financial institutions. On May 30, 2007, the Court preliminarily approved a $3.8 million settlement with Microsoft and Softbank. The Fairness Hearing is scheduled for September 27, 2007 at 4p.m. This partial settlement relates to only purchasers of Asia Global Crossing Securities. This settlement will conclude this class action. In total, Grant & Eisenhofer has recovered $448 million for investors in this case. Further information about the settlement, including the Notice and Proof of Claim form, is available at http://www.globalcrossinglitigation.com. Distribution of the proceeds from the partial settlement described above will not occur until late 2007 or early-2008 at the earliest. Please do not contact the court about the payment. For more details, contact: (1) Jay W. Eisenhofer, Esq. and Sidney S. Liebesman, Esq. of Grant & Eisenhofer, P.A., Chase Manhattan Centre, 1201 N. Market Street, Suite 2100, Wilmington, Delaware 19801, Phone: (302) 622-7000, Fax: (302) 622-7100; and (2) Global Crossing, Ltd. Securities Litigation, Financial Institutions Partial Settlement, c/o The Garden City Group, Inc., Claims Administrator, P.O. Box 9000 #6152, Merrick, NY 11566-9000, Phone: 1-866-808-3497, E-mail: http://www.globalcrossinglitigation.com. GOLD CITY: Recalls Toothpaste Made in China Due to DEG Content -------------------------------------------------------------- Gold City Enterprise LLC, Hallandale, Florida, is initiating a nationwide recall in accordance with the U.S. Food and Drug Administration (FDA) of the toothpaste made in China involving: Lot #777A – SHIR FRESH MINT FLUORIDE 9 oz UPC # 859750001023; Lot #777B – SHIR FRESH MINT FLUORIDE PASTE 9 oz UPC # 859750001016; Lot #777C – SHIR FRESH MINT FLUORIDE 9 oz UPC # 859750001023; Lot #777D – SHIR FRESH MINT FLUORIDE PASTE 9 oz UPC # 859750001016; Lot #2471A- SHIR FRESH ICE SHIR MINT FLUORIDE TOOTHPASTE 6.4 oz., UPC # 859750001092; and Lot #2471B- SHIR FRESH COOL SHIR MINT FLUORIDE TOOTHPASTE 6.4 oz. UPC # 859750001115. This recall has been initiated because the products may contain the poisonous chemical diethylene glycol (DEG). DEG is used in antifreeze and as a solvent, and is a Central Nervous System depressant and potent kidney and liver toxin. Consumers are advised to return all products immediately to the stores which you purchased them. Consumers who have the products should stop using/ return / throw away. Retailers immediately examine your inventory and quarantine product subject to recall. In addition, if you may have further distributed this product, please identify your customers and notify them at once of this product recall. Your notification to your customers may be enhanced by including a copy of this recall notification. This voluntarily nationwide recall is being made with the knowledge of the U.S. Food and Drug Administration. No injuries or illnesses have been reported to date in connection with this problem. Adverse Reactions or quality problems experience with the use of this product may be reported to the FDA's MedWatch Adverse Event Reporting program either online, by regular mail or fax. For more information, contact Peter Quinter, Esq. at (954) 985-4101. GREAT LAKES: Ohio Lawsuit Aims to Collect Unpaid Overtime Wages --------------------------------------------------------------- Great Lakes Towing Co. is facing a class-action complaint filed June 11 in the U.S. District Court for the Northern District of Ohio alleging Labor Code violations. Named plaintiff Randall Flowers brings this action for declaratory judgment under 28 U.S.C. Sections 2201-2202 and for compensation and other relied under the Fair Labor Standards Act, as amended 29 U.S.C. Section 201, et seq. Plaintiff alleges he has worked in excess of the hourly levels specified in the FLSA, 29 U.S.C. Section 207. As a result, at all times material in the complaint, plaintiff was entitled to overtime compensation at a rate of not less than one and one-half times his regular rate of pay for the hours of overtime they have worked. He further alleges that defendant has further violated the overtime requirements of the FLSA by failing to properly compensate him for overtime worked by reason of its failure to include in the calculation of plaintiffs' regular rate of pay all such compensation as is required by the FLSA, and the failure to properly compute the regular rate of pay as is required by the FLSA for the payment of overtime pay. Defendant's refusal to provide overtime pay to plaintiffs for the hours worked in excess of the hourly levels specified in the FLSA, 29 U.S.C. Section 207, wrongly deprives plaintiffs of the premium overtime compensation that is due to them at all times material in the complaint. Mr. Flowers prays that the court: -- certify the action as an FLSA representative action on behalf of all workers employed, or who were employed during the applicable time period allowable under the FLSA, by the defendant in the position of "dispatcher" and/or otherwise perform, or performed, duties similar to those performed by plaintiffs regardless of the job title assigned to them by the defendant; -- enter a declaratory judgment declaring that the defendant has willfully and wrongfully violated its statutory obligations and deprived the plaintiffs of their rights; -- enter a permanent injunction restraining and preventing the defendant from withholding the compensation that is due to each of the plaintiffs and from further violating their rights under the law; -- order a complete and accurate accounting of all the compensation to which the plaintiffs are entitled; -- award each plaintiff monetary damages in the form of back pay compensation, liquidated damages equal to their unpaid compensation, plus interest; -- award plaintiffs their reasonable attorneys' fees to be paid by the defendant and the costs and disbursements of this action; and -- grant such other relief as may be just and proper to remedy defendant's violations of the law as explained. A copy of the complaint is available free of charge at: http://ResearchArchives.com/t/s?20ec The suit is “Flowers v. Great Lakes Towing Company, Case No. 1:07-cv-01733- LW,” filed in the U.S. District Court for the Northern District of Ohio, under Judge Lesley Wells. Representing plaintiffs is: David A. Young 316 Hoyt Block Bldg. 700 St. Clair Avenue, W Cleveland, OH 44113 Phone: 216-621-5100 Fax: 216-621-7810 E-mail: dyoung@davidyounglaw.com HANOVER INSURANCE: Former Employee Sues in Ky. Over Pension Plan ---------------------------------------------------------------- The Hanover Insurance Group, Inc. faces a purported class action in the U.S. District Court for the Western District of Kentucky over a terminated employee’s lump sum distribution. Jennifer A. Durand filed the suit on March 12, 2007 under the caption, “Jennifer A. Durand v. The Hanover Insurance Group, Inc., The Allmerica Financial Cash Balance Pension Plan.” The named plaintiff, a former employee who received a lump sum distribution from her Cash Balance Plan at or about the time of her termination, claims that she and others similarly situated did not receive the appropriate lump sum distribution because in computing the lump sum, the company understated the accrued benefit in the calculation. The suit is “Jennifer A. Durand v. The Hanover Insurance Group, Inc., The Allmerica Financial Cash Balance Pension Plan, Case No. 3:07-cv-00130-CRS,” filed in the U.S. District Court for the Western District of Kentucky under Judge Charles R. Simpson, III. Representing the plaintiffs are: Eli Gottesdiener, Esq. Gottesdiener Law Firm, PLLC 498 Seventh Street Brooklyn, NY 11215-3613 Phone: 718-788-1500 Fax: 718-788-1650 E-mail: eli@gottesdienerlaw.com - and – Andrew S. Hartley, Esq. The Law Office of Andrew Hartley, PLLC 3423 Saybrook Road Lexington, KY 40503 Phone: 859-271-3731 Fax: 859-523-6112 E-mail: andrew@hartleyerisalaw.com Representing the defendants is Angela Logan Edwards, Esq. Woodward, Hobson & Fulton, LLP 101 S. Fifth Street, 2500 National City Tower Louisville, KY 40202-3175 Phone: 502-581-8000 Fax: 502-581-8111 E-mail: AEdwards@whf-law.com HANOVER INSURANCE: Still Faces Hurricane Katrina-Related Suits -------------------------------------------------------------- The Hanover Insurance Group, Inc. remains a defendant in various lawsuits, including putative class actions, relating to disputes arising from damages, which occurred as a result of Hurricane Katrina in 2005, according to the company’s May 10, 2007 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 21, 2007. As of March 31, 2007, there were in excess of 200 such cases, six of which were styled as putative class actions. These cases have been filed in both Louisiana state courts and federal district courts. These cases involve, among other claims, disputes as to the amount of reimbursable claims in particular cases, as well as the scope of insurance coverage under homeowners and commercial property policies due to flooding, civil authority actions, loss of landscaping, business interruption and other matters. Certain of these cases claim a breach of duty of good faith or violations of Louisiana insurance claims handling laws or regulations and involve claims for punitive or exemplary damages. Certain of the cases claim that under Louisiana’s so-called “Valued Policy Law,” the insurers must pay the total insured value of a home which is totally destroyed if any portion of such damage was caused by a covered peril, even if the principal cause of the loss was an excluded peril. Other cases challenge the scope or enforceability of the water damage exclusion in the policies. Several actions pending against various insurers, including the company, were consolidated for purposes of pretrial discovery and motion practice under the caption, “In re Katrina Canal Breaches Consolidated Litigation, Civil Action No. 05-4182,” in the U.S. District Court, Eastern District of Louisiana. On November 27, 2006, the Federal District Court issued an Order in these consolidated cases denying the Company’s motion to dismiss. The Court held that the flood exclusions utilized in the forms of homeowners and commercial lines policies issued by the Company and a number of other insurance carriers were ambiguous because such exclusions did not specify that they applied to flooding caused by negligent acts or omissions as well as to flooding caused by natural incidents such as Acts of God. The plaintiffs in these cases claim, among other things, that the efficient proximate cause of their losses was the third-party negligence of Orleans Levee District in the maintenance of the canal walls or in its failure to warn the plaintiffs and others of the impending water intrusion. The Federal District Court ordered that discovery proceed on the questions of whether there was such negligence and whether such negligence was in fact the efficient proximate cause of such losses. On Feb. 2, 2007, the U.S. Court of Appeals for the Fifth Circuit issued an Order granting the Company’s and the other defendant’s motion for leave to appeal. On Feb. 28, 2007, the Fifth Circuit issued an Order expediting such appeal. Oral arguments for the appeal were scheduled for the week of June 6, 2007. Plaintiffs in several consolidated cases, including “Sampia vs. Massachusetts Bay Insurance Company, E.D. La. Civil Action Number 06-0559,” have appealed an Order of Federal District Court Judge Vance dated Aug. 6, 2006 rejecting plaintiffs’ contention that the Louisiana Valued Policy Law has the effect of requiring coverage for a total loss proximately caused by a non-covered peril so long as there was any covered loss. This consolidated appeal is currently pending in the U.S. Court of Appeals for the Fifth Circuit, in a case captioned, “Chauvin, et al. vs. State Farm Fire & Casualty Co., No. 06-30946.” On April 27, 2007, the Fifth Circuit entered an Order expediting such appeal and scheduled oral arguments for July 9, 2007. Massachusetts-based The Hanover Insurance Group, Inc. (THG) -- http://www.hanover.com-- is a holding company for its subsidiaries, which includes The Hanover Insurance Company and Citizens Insurance Company of America, which are its principal property and casualty subsidiaries; First Allmerica Financial Life Insurance Company, which is its life insurance and annuity subsidiary, and certain other insurance and non-insurance subsidiaries. THG’s business includes financial products and services in two major areas: Property and Casualty, and Life Companies. Within these areas, it has ongoing operations principally in three operating segments: Personal Lines, Commercial Lines, and Other Property and Casualty. THG’s fourth segment, Life Companies, is in run-off. HARMONIC INC: Parties in Cal. Securities Suit Enter Mediation ------------------------------------------------------------- Parties in a consolidated securities class action against Harmonic, Inc. are in mediation to resolve the matter, according to the company’s May 10, 2007 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 21, 2007. Between June 28 and Aug. 25, 2000, several actions alleging violations of the federal securities were filed in or removed to the U.S. District Court for the Northern District of California. The actions were subsequently consolidated. A consolidated complaint, filed on Dec. 7, 2000, was brought on behalf of a purported class of persons who purchased Harmonic's publicly traded securities between Jan. 19 and June 26, 2000. It alleged claims on behalf of a purported subclass of persons who purchased C-Cube Microsystems Inc. securities between Jan. 19 and May 3, 2000. In addition to the company and certain of its officers and directors, the complaint also named C-Cube Microsystems and several of its officers and directors as defendants. The complaint alleged that, by making false or misleading statements regarding Harmonic's prospects and customers and its acquisition of C-Cube, certain defendants violated sections 10(b) and 20(a) of the U.S. Securities Exchange Act of 1934. The complaint also alleged that certain defendants violated section 14(a) of the Exchange Act and sections 11, 12(a)(2), and 15 of the U.S. Securities Act of 1933 by filing a false or misleading registration statement, prospectus, and joint proxy in connection with the C-Cube acquisition. On July 3, 2001, the District Court dismissed the consolidated complaint with leave to amend. An amended complaint alleging the same claims against the same defendants was filed on Aug. 13, 2001. Defendants moved to dismiss the amended complaint on Sept. 24, 2001. On Nov. 13, 2002, the District Court issued an opinion granting the motions to dismiss the amended complaint without leave to amend. Judgment for defendants was entered on Dec. 2, 2002. On Dec. 12, 2002, plaintiffs filed a motion to amend the judgment and for leave to file an amended complaint pursuant to Rules 59(e) and 15(a) of the Federal Rules of Civil Procedure. On June 6, 2003, the District Court denied plaintiffs' motion to amend the judgment and for leave to file an amended complaint. Plaintiffs filed a notice of appeal on July 1, 2003. A panel of three judges from the U.S. Court of Appeals for the 9th Circuit heard the appeal on Feb. 17, 2005. On Nov. 8, 2005, the 9th Circuit panel affirmed in part, reversed in part, and remanded for further proceedings the decision of the District Court. The 9th Circuit affirmed the District Court's dismissal of the plaintiffs' fraud claims under Sections 10(b), 14(a), and 20(a) of the Exchange Act with prejudice, finding that the plaintiffs failed to adequately plead their allegations of fraud. The 9th Circuit reversed the District Court's dismissal of the plaintiffs' claims under Sections 11 and 12(a)(2) of the Securities Act, however, finding that those claims did not allege fraud and therefore were subject to only minimal pleading standards. Regarding the secondary liability claim under Section 15 of the Securities Act, the 9th Circuit reversed the dismissal of that claim against Anthony J. Ley, the company's chairman and chief executive officer, and affirmed the dismissal of that claim against Harmonic, while granting leave to amend. The 9th Circuit remanded the surviving claims to the District Court for further proceedings. On Nov. 22, 2005, both the Harmonic defendants and the plaintiffs petitioned the 9th Circuit for a rehearing of the appeal. On Feb. 16, 2006 the 9th Circuit denied both petitions. On May 17, 2006 the plaintiffs filed an amended complaint on the issues remanded for further proceedings by the 9th Circuit, to which the Harmonic defendants responded with a motion to dismiss certain claims and to strike certain allegations. On Dec. 11, 2006, the court granted the motion to dismiss with respect to the Section 12(a)(2) claim against the individual Harmonic defendants and granted the motion to strike, but denied the motion to dismiss the Section 15 claim. A case management conference was held on Jan. 25, 2007, at which the court set a trial date in August 2008, with discovery to close in February 2008. The court also ordered the parties to attend a settlement conference with a magistrate judge or a private mediation before June 30, 2007. Mediation was scheduled for the parties on May 24, 2007. Harmonic, Inc. -- http://www.harmonicinc.com/-- designs, manufactures and sells products and systems that enable network operators to provide a range of interactive and advanced digital services that include digital video, video-on-demand, high-definition television, high-speed Internet access and telephony. The Company's products generally fall into two categories: video processing products, and edge and access products. In addition, Harmonic provides network management software and has introduced new application software products. The Company also provides technical support services to its customers worldwide. Its video processing products provide broadband operators with the ability to accept a variety of signals from different sources in different protocols, and to organize, manage and distribute this content to maximize use of the available bandwidth. HCC INSURANCE: Faces Securities Fraud Litigation in S.D. Tex. ------------------------------------------------------------- HCC Insurance Holdings, Inc. was named as a defendant in a purported securities fraud class action filed in the U.S. District Court for the Southern District of Texas, according to the company’s May 9, 2007 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 21, 2007. The suit, “Bristol County Retirement System v. HCC Insurance Holdings Inc et al., Case No. 4:07-cv-00801,” was filed on March 8, 2007. The company is named as a defendant in the putative class action along with certain current and former officers and directors. Plaintiff seeks to represent a class of persons who purchased or otherwise acquired the company’s securities between May 3, 2005 and Nov. 17, 2006, inclusive. The action purports to assert claims arising out of improper manipulation of option grant dates, alleging violation of Sections 20(a) and 10(b) of the U.S. Securities Exchange Act, as well as Rule 10b-5 promulgated thereunder. Plaintiff also purports to assert a claim for violation of Section 14(a) of the Securities Exchange Act and Rules 14a-1 and 14a-9 promulgated thereunder. Plaintiff seeks recovery of compensatory damages for the putative class and costs and expenses. The suit is “Bristol County Retirement System v. HCC Insurance Holdings Inc. et al., Case No. 4:07-cv-00801,” filed in the U.S. District Court for the Southern District of Texas under Judge Sim Lake. Representing the plaintiff is: Damon Joseph Chargois, Esq. Chargois & Heron LLP 2201 Timberloch Place, Ste. 110 The Woodlands, TX 77380 Phone: 281-444-0604 Fax: 281-440-0124 E-mail: damon@cmhllp.com - and – Alan I. Ellman, Esq. Labaton Sucharow & Rudoff 100 Park Avenue New York, NY 10017 Phone: 212-907-0813 Fax: 212-818-0477 Representing the defendant is Barry F. McNeil, Esq. Haynes and Boone 901 Main St., Ste. 3100 Dallas, TX 75202-3789 Phone: 214-651-5580 Fax: 214-200-0535 E-mail: barry.mcneil@haynesboone.com IMERGENT INC: No Amended Complaint Filed in Utah Securities Suit ---------------------------------------------------------------- An amended complaint has yet to be filed in a consolidated securities fraud class action pending against iMergent, Inc. in the U.S. District Court for the District of Utah. On March 8, 2005, Elliott Firestone filed a lawsuit, on behalf of himself and all others similarly situated, against the company, certain current and former officers, and current and former directors. This suit was followed by several other similar complaints. The court ordered that the cases be consolidated, and on Nov. 23, 2005, allowed a "consolidated amended complaint for violation of the federal securities laws" against the company, certain current and former officers, and current and former directors, together with the former independent registered public accounting firm for the company, Grant Thornton LLP, as defendants. The amended consolidated complaint alleges violations of securities laws claiming that the defendants either made or were responsible for the making of material misleading statements and omissions, providing inaccurate financial information, and failing to make proper disclosures, which required the company to restate its financial results. The suit seeks unspecified damages, including attorneys' fees and costs. Although this action was determined by the court to be the "consolidated action," Hillel Hyman filed a complaint in October 2005 on behalf of himself and all others similarly situated against the company, certain current and former officers, current and former directors, and Grant Thornton LLP. The group in subsequent filings refers to itself as the "accounting restatement group" and alleges that it should be determined by the court to be the consolidated plaintiff as it properly alleges a class period consistent with timing necessary to raise a claim based upon the restatement of financial results announced by the company. The complaint alleges violations of federal securities laws by the company and Grant Thornton LLP. On Feb. 28, 2006, at a “Status Conference,” the court determined that the complaint filed by the accounting restatement group should be substituted as the new consolidated amended complaint. On April 3, 2006, the court entered a consent order substituting Mr. Hyman as the lead plaintiff. The discovery stay imposed under applicable federal law, which controls the administration of class actions, remains in place. There has been no amended complaint filed to date, according to the company’s May 10, 2007 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 21, 2007. The suit is "Hyman v. Imergent, et al., Case No. 2:05-cv-00861- DAK," filed in the U.S. District Court for the District of Utah under Judge Dale A. Kimball. Representing the plaintiffs are: C. Richard Henriksen, Jr., Esq. Henriksen & Henriksen 320 S. 500 E. Salt Lake City, UT 84102 Phone: (801) 521-4145 E-mail: hhlaw@sisna.com - and - Ira M. Press, Esq. Kirby Mcinerney & Squire 830 Third Ave. New York, NY 10022 Phone: (212) 317-6600 E-mail: ipress@kmslaw.com Representing the defendants is: Jacqueline Benson, Esq. Gary F. Bendinger, Esq. Howrey, LLP Phone: (713) 654-7693 and (801) 533-8383 E-mail: bendingerg@howrey.com MUSICLAND HOLDING: Motion for Leave to File Late Claim Lodged ------------------------------------------------------------- Maureen MacLennan, on behalf of herself and as a representative of a class of similarly situated individuals, commenced an action in the California Superior Court against the affiliates of Musicland Holding Corp. who have filed for bankruptcy (together the Debtors). The affiliates are Musicland Group, Inc., Media Play, and Suncoast Motion Picture Company, Inc. The MacLennan Class Action alleges the Debtors of failure to pay wages, denial of meal breaks, denial of rest breaks, and unfair business practices. In August 2005, the parties to the Class Action stipulated to settlement their dispute. The Class Action was settled for $295,000. On the other hand, the Court established May 1, 2006, as the last day for the filing of proofs of unsecured claims. Ms. MacLennan, however, said that she did not receive any notice issued in the Debtors' case. She adds that she did not even receive the Bar Date Notice until after May 1. Accordingly, the Class objected to the Disclosure Statement explaining the Debtors' Second Amended Plan of Liquidation. The Class contended that the Disclosure Statement failed to disclose the existence of the Class Claim and its Court-approved Class Settlement. The counsel for the Class, thereafter, prepared a stipulation among the Class, the Debtors, and the Official Committee of Unsecured Creditors regarding the: -- filing of a Class proof of claim after the Bar Date; and -- relief from the automatic stay to permit the Class to seek a final order from the State Court granting final approval to the settlement. According to Daniel I. Barness, Esq., at Spiro Moss Barness LLC, in Los Angeles, California, an agreement as to substance was reached between the Class and the Debtors regarding the terms of the Stipulation. The Class counsel, however, found it difficult to "get the attention" of the Debtors in order to finalize the stipulations and to present it to the Court, Mr. Barness relates. "Thus, it has become necessary to submit the matter to the Court for action, otherwise, the Class is concerned that this matter may continue to drift without appropriate resolution," Mr. Barness argues. By this motion, Ms. MacLennan seeks an extension of the Claims Bar Date to allow her to file a late claim with respect to the Class Claim. Mr. Barness maintains that the failure to timely file the Class Claim was a result of excusable neglect as Ms. MacLennan was not aware of the Bar Date until after it had passed. Ms. Maclennan also seeks the Bankruptcy Court's order certifying the Class for purposes of the Class Claim. On May 12, 2006, the Debtors filed their Joint Plan of Liquidation with the Court. On Sept. 14, 2006, they filed an amended Plan and a Second Amended Plan on Oct. 13, 2006. The Court approved the adequacy of the Amended Disclosure Statement on Oct. 13, 2006. (Musicland Bankruptcy News Issue Number 32; Bankruptcy Creditors' Service, Inc., http://bankrupt.com/newsstand/or 215/945-7000). NORTHWEST AIRLINES: Objections in Pensioners’ Suit Sustained ------------------------------------------------------------ Northwest Airlines Corp., in bankruptcy, objected to Claim Nos. 11338 and 11339, filed by Bruce W. Cress, Peter Ochabauer, Walter Boulden, Mark A. Knudsen, Christopher J. Parkyn, Amanda R. Ochubauer and Bernard C. Larkin as alleged class action representatives of similar pensioners. The company and its affiliates who filed for bankruptcy (the Debtors) argue that the Claims are nullified by the Pension Protection Act of 2006, and are also duplicative of other claims filed in the Debtors' Chapter 11 cases. Accordingly, the Court sustains the Objection and expunges Claim Nos. 11338 and 11339. According to Judge Gropper, the Claims are based on deficiencies in the minimum funding required for three defined benefit plans that Northwest Airlines Inc., one of the Debtors, sponsors for certain of its employees. The minimum funding standards are set by the Employment Retirement Income Security Act. The Plans were amended by NWA on September 14, 2005, the day of the Chapter 11 filing, to provide for the appointment of an independent fiduciary to pursue claims to recover minimum funding contributions due under ERISA. Fiduciary Counselors, Inc., which serves as the independent fiduciary of the Plans and is authorized to pursue the claims on behalf of the Plans, filed Claim Nos. 11200, 11372 and 11389 on behalf of each of the applicable plans, for amounts due to each of the Plans under the ERISA minimum funding standards. The PPA, which was signed into law on August 17, 2006, amended ERISA with respect to deficiencies in the minimum funding required by that statute. Specifically, Section 402 of the PPA amends the minimum funding standards in situations involving an "eligible plan" that is sponsored by a commercial passenger airline and that has been amended to freeze future benefit accruals. The Court states that pursuant to Section 402, a sponsor of an eligible plan can elect an alternative funding schedule that will restart the plan's funding standard account at a zero balance. The plan's frozen unfunded benefit liabilities are then amortized over a new 17-year period. The PPA further provides that upon the election, any funding deficiency is "deemed satisfied" as a matter of law. By the plain words of the statute, any funding deficiencies in the Plans have been satisfied as a matter of law through the Debtors' election under the PPA, and as a result no amounts are currently due under the ERISA funding requirements, Judge Gropper clarifies. The Claimants' principal response is that it is not feasible for the Debtors to meet the obligations imposed under the PPA, alleging that there are $5,700,000,000 in prepetition underfunded liabilities under the Plans, and that under the PPA election, the Debtors will be obligated to pay more than $335,000,000 per year over the next 17 years, plus interest. The Claimants argue that given the Debtors' financial history and past delinquencies in meeting the minimum funding requirements of ERISA, their ability to pay this amount is uncertain and a Chapter 11 plan is not likely to be feasible if it is contingent on satisfaction of the funding requirements of the PPA. According to the Court, the Debtors correctly note that issues relating to Section 1129(a) of the Bankruptcy Code and feasibility are appropriately addressed at confirmation. The Claimants' argument with respect to the feasibility of the Debtors' plan has no bearing upon whether the PPA nullifies the Claims as a debt entitled to a distribution in the current Plan. Moreover, if the Claimants were paid in accordance with the Claims, they would either (i) be able to prevent NWA from making an effective election under the PPA (which they are not authorized to do), or (ii) be able to recover twice -- once through their Claims and again through the payments that the Debtors have committed themselves to make on a going forward basis, states Judge Gropper. Furthermore, a stipulation the Debtors entered into with Fiduciary Counselors provides that its claims will automatically be reinstated in full without prejudice as of August 16, 2006, and will be deemed timely filed, if Northwest fails timely to make to the Plan to which that Claim pertains any minimum funding contributions required under Section 402(e) of the PPA that come due to that Plan on or after January 12, 2007, and before the effective date of a plan of reorganization in the Debtors' Chapter 11 cases. It is not necessary to reach the Debtors' alternative contention that the Claims of the persons allegedly represented by the Claimants are duplicative of the claims filed by Fiduciary Counselors, states Judge Gropper. (Northwest Airlines Bankruptcy News, Issue Number 72; Bankruptcy Creditors' Service, Inc., http://bankrupt.com/newsstand/or 215/945-7000). NUTRAMERICA CORP: Aug. Hearing Set for Trimspa Suit Settlement -------------------------------------------------------------- The California Superior Court for the County of Los Angeles will hold a fairness hearing on Aug. 21, 2007 at 11:00 a.m. for the proposed settlement in the matter, “Belkis LaRosa v. Nutramerica Corp., et al., Case No. BC 309427.” The court will hold the fairness at the Superior Court of California for the County of Los Angeles, Central Civil West Courthouse, 14th Floor, Department 309, 600 South Commonwealth Avenue, Los Angeles, California 90005, before the Honorable Judge Anthony J. Mohr. The settlement covers all persons that purchased Trimspa X32 in the U.S. for personal use during the period April 1, 2003 through Oct. 31, 2006. Case Background The suit was filed against Nutramerica Corp., Trimspa Corp., Goen Technologies Corp., and Alex Goen. In the suit, plaintiff alleged that the defendants made false and misleading statements in their labeling and advertising of TrimSpa 32. Summary of Settlement Benefits For each bottle of TrimSpa X32 purchased in the U.S. for personal use and not for resale during the period April 1, 2003 through Oct. 31, 2006, the Settlement will provide all of the following benefits: -- A Settlement Check: $1.00 for each bottle of TrimSpa X32 purchased during the Class Period; -- One (1) Free Bottle of Winfuel multivitamin or MultiSpa Men’s or MultiSpa Women’s multivitamin, at Defendant's discretion, for each bottle of TrimSpa X32 purchased during the Class Period; -- A $5.00 Coupon for each bottle of TrimSpa X32 purchased during the Class Period. Each coupon can be redeemed for a discount on any 90-count TrimSpa product. For more details, contact: TrimSpa Settlement Administrator P.O. Box 6175 Novato, CA 94948-6175 Phone: 1-888-889-5841 Web site: http://www.trimspasettlement.com/ PEOPLE'S CHOICE: Former Employees Request Class Certification ------------------------------------------------------------- John P. Salvador and Melinda McZiel seek an order certifying a class comprised of former employees of Debtors People's Choice Financial Corp. and People's Choice Home Loan, Inc., who were terminated without cause from their employment at the Debtors' facility comprised of operations located at 7505, 7515, 7525 and 7545 Irvine Center Drive, in Irvine, California, during the period from March 19, 2007, or thereafter as part of, or as the reasonably expected consequence of, the mass layoff or plant closing, as defined by the Worker Adjustment and Retraining Notification Act, 29 U.S.C. Section 2101 et seq. On April 7, 2007, certain former employees filed a complaint against the Debtors alleging a Rule 23 class claim asserting that the Debtors violated federal and California WARN Acts. The Debtors, in a May 9 response, denied that the former employees are entitled to any relief and asserted five affirmative defenses, each of which, if available, would apply to the former employees and all the putative class members, including unforeseeable business circumstances defense. Class certification requires that each of the four prerequisites for class certification set forth in Federal Rule of Civil Procedure 23 -- Rule 23(a) (1), (2), (3) and (4) -- be satisfied and that, in addition, at least one of the subparts of Rule 23(b) -- Rule 23(b)(3) -- be satisfied. Stuart J. Miller, Esq., at Lankenau & Miller, LLP, in New York, states that: -- WARN claims are widely recognized by the courts to be especially appropriate for class certification; -- the proposed class satisfies the requirements of Rule 23; and -- class claims are proper in Bankruptcy Court even when the Putative Class Members did not file individual claims. Mr. Miller suggests that Mr. Salvador and Ms. McZiel be appointed class representatives. He tells the Court that the proposed appointees have been diligent in pursuing the Class Claim and have worked with counsel in initiating and prosecuting the action; have no conflict of interest with other Class Members; and have and will fairly and adequately represent the interests of the Class. Mr. Salvador and Ms. McZiel want to retain Lankenau & Miller, The NLG Maurice and Jane L. Sugar Law Center for Economic and Social Justice, The Gardner Firm, P.C., and Peter Davidson as Class counsel. The firms have considerable experience in WARN class actions, among others, have no conflict of interest, and have diligently prosecuted this Action, Mr. Miller maintains. Service of a notice of Class Action to each member of the Class at the member's last known address, as shown in the Debtors' records, is the best notice practicable under all circumstances, Mr. Miller says. The proposed Notice will contain: -- the nature of the action; -- the definition of the class certified; -- the class claims, issues or defenses; -- that a class member may enter an appearance through counsel if the member so desired; -- that the Court will exclude from the class any member who requests exclusion, stating when and how members may elect to be excluded; and -- the binding effect of a class judgment on class members under Rule 23(c)(3). (People's Choice Bankruptcy News, Issue No. 9; Bankruptcy Creditors' Service, Inc., http://bankrupt.com/newsstand/or 215/945-7000) REALOGY CORP: Aug. 16 Hearing Set for N.J. Shareholder Suit Deal ---------------------------------------------------------------- The Superior Court of New Jersey - Morris County: Chancery Division-General Equity will hold a fairness hearing on Aug. 15, 2007, at 10:00 a.m. for the proposed settlement in the matter, “In Re Realogy Corp. Shareholder Litigation, Case No. C-181-06.” The hearing will be held in the Morris County Courthouse, Washington Street, Morristown, New Jersey. The settlement covers all record or beneficial owners of Realogy Corp. common stock from Dec. 15, 2006 through April 10, 2007, including within the class the legal representatives, heirs, successors in interest, predecessors, trustees, administrators, executors, transferees and assigns of all such foregoing holders and/or owners, immediate and remote. The consolidated shareholder suit was brought with regards to the company's December 2006 Agreement and Plan of Merger with affiliates of Apollo Management VI, L.P. (Class Action Reporter, April 3, 2007). From Dec. 18 through Dec. 22, 2006, plaintiffs filed four putative class actions in the Superior Court of the State of New Jersey concerning the proposed acquisition of Realogy pursuant to the merger agreement. The suits are: -- "Adams v. Silverman, Smith (Richard), Edelman, Pittman, Smith (Robert), Nederlander, Mills, Fisher, Apollo Management, L.P., and Realogy Inc., D. No. C-180-06 (N.J. Super. Ct. Ch. Div.); -- "NECA-IBEW Pension Fund (The Decatur Plan) and Thomas F. Coyne v. Realogy Corp., Silverman, Smith (Richard), Edelman, Fisher, Mills, Nederlander, Pittman, and Smith (Robert), D. No. MRS-L-3450-06 (N.J. Super. Ct.); -- "Roffe v. Realogy Corp., Silverman, Smith (Richard), Edelman, Fisher, Mills, Nederlander, Pittman, and Smith (Robert), D. No. MRS-L-3456-06 (N.J. Super. Ct.);" and -- "Norfolk County Retirement System v. Realogy Corp., Silverman, Smith (Richard), Edelman, Pittman, Smith (Robert), Nederlander, Mills, and Fisher, D. No. C-181- 06 (N.J. Super. Ct. Ch. Div.)." The Norfolk complaint was subsequently amended to add Apollo Management VI, L.P. as a defendant. On Jan. 10, 2007, the parties entered into a stipulation and requested that the Court consolidate the four New Jersey actions in the Chancery Division of the Superior Court, with the proposed caption of the consolidated action to be: "In Re Realogy Corp. Shareholder Litigation, D. No. C-181- 06," and with the amended Norfolk complaint filed in D. No. C-181-06 to be the operative complaint in the consolidated action. The stipulation and proposed order are without prejudice to the right of any defendant to contest personal jurisdiction or the venue of the action or to move for dismissal, stay, or for any other disposition of the action on any ground. The court granted the motion to consolidate on Feb. 2, 2007. In summary, the complaint filed in D. No. C-181-06 alleges, among other things: -- that the company and certain officers and directors breached their fiduciary duties in connection with the sale of the company to Apollo Management VI, L.P.; -- that the price offered by Apollo Management VI, L.P. is grossly inadequate; -- that the proposed sale does not have adequate procedural protections; -- that defendants are engaged in self-dealing, allowing Apollo Management VI, L.P. to acquire the company for as little value as possible; -- that Mr. Henry Silverman will receive windfall profits as a result of the transaction and "Change of Control" provisions in his employment contract; -- that the merger agreement contains financial penalties up to $215 million if the proposed sale is not consummated, including a $30 million fee to Apollo Management VI, L.P. if the company's stockholders do not approve the merger; -- that the timing of the transaction makes it particularly unfair to the public stockholders; -- that the public stockholders will not receive their fair portion of the value of the company's assets and business; -- that defendants have access to company information that is unavailable to the public stockholders; and -- that the defendant directors are controlled by Mr. Henry Silverman and as such cannot fairly discharge their duties. Additionally, after the company filed its preliminary proxy statement on Jan. 18, 2007, plaintiffs amended the operative complaint to add a claim of "breach of fiduciary duty - candor." Plaintiffs seek, among other things, preliminary and permanent injunctive relief against the proposed sale, rescission of the sale (if necessary), an order requiring that defendants utilize Realogy's shareholder rights plan in a "suitor-neutral" fashion, a declaration that the termination provisions in the merger agreement are null and void in the event a superior offer is made, rescissory and/or compensatory damages and attorneys' and experts' fees and expenses. The company believes that the allegations in the complaint are wholly without merit and intends to vigorously defend against the action. The parties to the New Jersey Action have been engaged in negotiations concerning a potential settlement of that litigation. On Feb. 22, 2007, they entered into a memorandum of understanding (MOU), which contains the terms of an agreement in principle concerning a proposed settlement of the New Jersey Action. The Settlement Terms As a direct result of the prosecution of the action, a proposed settlement has been reached under the following terms: -- The Apollo Defendants agreed to waive and did waive any right to a Superior Transaction Fee to the extent that it exceeds $180,000,000, pursuant to Section 7.03 of the Merger Agreement. Such waiver was immediately effective and irrevocable upon the execution of the MOU, notwithstanding any other provisions or conditions thereof, and was disclosed to Realogy’s shareholders in the Final Proxy Statement dated February 23, 2007. -- Realogy and its successor agreed not to assert that any shareholder’s demand for appraisal is untimely under Section 262 of the General Corporation Law of the State of Delaware (DGCL) where such shareholder has submitted a written demand for appraisal within 30 calendar days of the shareholder vote on the Merger (with any such deadline being extended to the following business day should the 30th day fall on a holiday or weekend). Realogy and its successor further agreed not to assert that any actions taken by such shareholders are untimely with respect to the first three sentences of Section 262(e) of the DGCL, if such actions are taken within 30 days of the deadlines (i.e., 120 days (first sentence), 60 days (second sentence), and 120 days (third sentence)) set forth therein. The agreements set forth in Section 2.1(b) of the Stipulation became immediately effective and irrevocable upon the execution of the MOU, notwithstanding any other provisions or conditions thereof, and were disclosed to Realogy’s shareholders in the Final Proxy Statement dated Feb. 23, 2007. -- Realogy agreed to and did include in its Final Proxy Statement for the Merger certain additional disclosures addressed to allegations in the Second Amended Complaint in the form annexed as Exhibit A to the Stipulation. -- In addition to the disclosures annexed to the Stipulation as Exhibit A, Realogy agreed to and did provide Plaintiffs, for their advance review, certain other disclosures included in the Final Proxy Statement. -- The Parties agree, pursuant to N.J. Ct. R. 4:32-1, for settlement purposes only, that the Action shall proceed as a class action on behalf of a non-opt-out class consisting of the Settlement Class, as defined in the Stipulation. For more details, contact: In re Realogy Corp. Shareholder Litigation c/o Complete Claim Solutions, LLC P.O. Box 24683 West Palm Beach, FL 33416 Phone: (800) 760-5617 Fax: (561) 651-7788 Jonathan M. Plasse, Esq. Emily C. Komlossy, Esq. Christopher J. Keller, Esq. Labaton Sucharow & Rudoff LLP 100 Park Avenue New York, New York 10017 Phone: (212) 907-0700 Fax: (212) 818-0477 - and - Samuel H. Rudman, Esq. David A. Rosenfeld, Esq. Mark Reich, Esq. Lerach Coughlin Stoia Geller Rudman & Robbins LLP 58 South Service Road, Suite 200 Melville, New York 11747 Phone: (631) 367-7100 Fax: (631) 367-1173 SENDTEC INC: Fla. Judge Dismisses Securities Fraud Litigation ------------------------------------------------------------- The Honorable Paul C. Huck of the U.S. District Court for the Southern District of Florida signed an order on June 12, 2007 dismissing a putative class action filed against SendTec, Inc. (formerly known as RelationServe Media, Inc.), and its officers and directors and certain former officers and directors of the company. On July 27, 2006, RelationServe Media announced that it had completed the change of its name and symbol to SendTec, Inc. On or about Aug. 31, 2006, an action was commenced in the U.S. District Court for the Southern District of Florida (Case No. 06-61327) by Richard F. Thompson as putative class representatives against the company and certain former officers and directors. The suit alleges securities laws violations in connection with the purchase of company stock during the period May 24, 2005 to the present. The complaint alleges that RelationServe and the individual Defendants violated U.S. securities laws, and the securities laws of the states of Florida and Indiana, causing an artificial inflation of RelationServe's stock process. According to the complaint, RelationServe made false and misleading statements by failing to disclose that it was selling its securities through unregistered and commissioned agents and broker/dealers in violation of state and federal law, thereby creating a substantial risk of civil liability for damages and/or the rescission of stock purchases. In February, the U.S. District Court for the Southern District of Florida appointed Richard F. Thompson and L. Alan Jacoby as co-lead plaintiffs in a securities fraud class action against SendTec, Inc. The court also approved the plaintiffs' selection of Cohen & Malad, LLP, as lead counsel, and approved plaintiffs' selection of Friendman, Rosenwasser & Goldbaum, P.A. as liaison counsel. In March, the Honorable Paul C. Huck of the U.S. District Court for the Southern District of Florida dismissed the putative class action, giving plaintiffs leave to file a new complaint on or before March 19, 2007 (Class Action Reporter, March 9, 2007). Messrs. Thompson Jacoby filed a Second Amended Complaint (Class Action Reporter, March 26, 2007). The amended complaint claims, among other things, that RelationServe and its officers and directors violated Section 10(b) of the Securities Exchange Act of 1934 by: (a) selling securities through persons who were not registered as broker/dealers with the U.S. Securities and Exchange Commission, California, Connecticut, Florida, Illinois, Indiana, Nevada, New Jersey, New York, Ohio, or Pennsylvania, and were not affiliated as an agent or representative of a registered broker/dealer; (b) failing to alert the investing public that RelationServe had sold securities through unregistered broker/dealers, which exposed RelationServe to substantial contingent claims of rescission, and civil and criminal liability; and, (c) by failing to alert the investing public that director, Warren Musser, had been sued by stockholders of SafeGuard and TyCom, Ltd., for securities violations. In addition to 10b-5 claims, co-lead plaintiffs claim violation of Section 20 (a) of the U.S. Exchange Act as to controlling persons of the company, violations of the state securities laws for sales of unregistered, non-exempt securities. Plaintiffs seek rescission, damages, treble damages, punitive damages, compensatory damages, interest, costs, and attorney's fees. In the June 12 order, the Federal claims of the case were dismissed with prejudice and may not be refiled in an amended complaint. The State law claims were dismissed without prejudice. The suit is "Thompson v. Relationserve Media, et al., Case No. 0:06-cv-61327- PCH," filed in the U.S. District Court for the Southern District of Florida under Judge Paul C. Huck with referral to Judge Andrea M. Simonton. Representing the plaintiffs are: Cohen & Malad, LLP 1 Indiana Square, Suite 1400 Indianapolis, IN 46204 Phone: 317-636-6481 - and - Friedman Rosenwasser & Goldbaum 5355 Town Center Road, Suite 801 Boca Raton, FL 33486-1092 Phone: 561-395-5511 Fax: 368-9274 E-mail: kgoldbaum@frglaw.com Representing the defendants are: Genovese Joblove & Battista 100 SE 2nd Street, Suite 4400 Miami, FL 33131 Phone: 305-349-2300 Fax: 349-2310 Web site: http://www.gjb-law.com - and - Haynes & Boone, LLP 153 E. 53rd Street, Suite 4900 New York, NY 10022 Phone: 212-659-4980 Web site: http://www.haynesboone.com STANLEY STAFFING: Faces Suit in Ohio Over Unpaid Overtime Wages --------------------------------------------------------------- Stanley Staffing, Inc. is facing a class-action complaint filed June 12 in the U.S. District Court for the Northern District of Ohio alleging Labor Code violations. Named plaintiffs Tomasina Clark and Kristopher Sanderson bring this “collective action” as a result of Stanley Staffing's alleged practice and policy of not paying its hourly, non-exempt employees, including Plaintiffs and other similarly-situated employees, overtime compensation at the rate of one and one-half times their regular rate of pay for all hours worked over 40 in a workweek, in violation of the Fair Labor Standards Act, 29 U.S.C. Sections 201-219. Under the FLSA, Defendant is and was required to provide Plaintiffs and other similarly-situated, hourly, non-exempt employees with overtime compensation of “not less than one and one-half times” the employee’s “regular rate” of pay. 29 U.S.C. Section 207(a)(1). Plaintiffs bring this action on behalf of all current and former hourly employees of Stanley Staffing who are or were staffed at Lockheed Martin at any time between June 12, 2004 and the present. By failing to pay Plaintiffs and other similarly-situated employees’ overtime compensation, and by failing to pay wages to Plaintiffs on time, Defendant willfully, knowingly and/or recklessly violated the provisions of the FLSA, the complaint states. Plaintiffs and all those similarly situated collectively pray that this Honorable Court: -- issue an order permitting this litigation to proceed as a collective action; -- Order prompt notice, pursuant to 29 U.S.C. Section 216(b), to all Class members that this litigation is pending and that they have the right to “opt in” to this litigation; -- grant Plaintiff and the Class they represent a permanent injunction enjoining Defendant, their agents, successors, employees, and other representatives from engaging in or continuing to engage in any employment acts, policies, practices, or procedures that violate the FLSA; -- award Plaintiffs and the Class they represent actual damages for unpaid overtime compensation and liquidated damages equal in amount to the unpaid overtime compensation found due to Plaintiffs and the Class; -- award Plaintiffs Tomasina Clark and Kristopher Sanderson liquidated damages equal in amount to the wages that were not paid to them on time; -- award Plaintiffs and the Class they represent pre- and post-judgment interest at the statutory rate; -- award Plaintiffs and the Class they represent attorneys’ fees, costs, and disbursements; and -- award Plaintiffs and the Class they represent further and additional relief as the Court deems just and proper. A copy of the complaint is available free of charge at: http://ResearchArchives.com/t/s?20ee The suit is “Clark et al. v. Stanley Staffing, Case No. 1:07-cv-01727-DDD,” filed in the U.S. District Court for the Northern District of Ohio, under Judge David D. Dowd, Jr. Representing plaintiffs are: Ryan W. Cohen Anthony J. Lazzaro Law Office of Anthony J. Lazzaro 920 Rockefeller Bldg. 614 Superior Avenue, W Cleveland, OH 44113 Phone: 216-696-5000 Fax: 216-696-7005 (fax) E-mail: ryanwcohen@gmail.com or anthony@lazzarolawfirm.com TOWER AUTOMOTIVE: Brand Group Files Motion to Serve Subpoena ------------------------------------------------------------ Nathan F. Brand, Dorothea C. Brand, Tombstone Limited Partnership, Frederick E. Mohs and Paula A. Mohs ask the Court to confirm that the automatic stay does not restrict them from serving a third party discovery subpoena on Tower Automotive Inc. (the company and its debtor affiliates, the Debtors). In the alternative, the Brand Group wants the stay lifted so it may serve a document discovery subpoena on, and obtain discovery from, the Debtors. The Brand Group serves as lead plaintiffs in a securities fraud class action pending before the U.S. District Court for the Southern District of New York. The Brand Group held common equity interests in Tower, Inc. or 6.75% Trust Preferred Securities. The defendants named in the Class Action include past and present officers of the Debtors. None of the Debtors were sued because of the automatic stay was in effect at the time of the filing of the complaint. John H. Drucker, Esq., at Cole, Schotz, Meisel, Forman & Leonard, P.A., in New York, contends that the Debtors are the best, and may be the only, source of documentary evidence. The Lead Plaintiffs wish to move forward with document production in view of the proposed Plan confirmation date on July 11, 2007, and a proposed closing date for the sale of all of the Debtors' assets, including their records, on July 31, 2007. The Lead Plaintiffs will provide the Debtors' counsel with a courtesy copy of the proposed Document Subpoena in an effort to reach an agreement, Mr. Drucker relates. The company and 25 of its debtor-affiliates filed voluntary chapter 11 petitions on Feb. 2, 2005 (Bankr. S.D.N.Y. Case No. 05-10576 through 05-10601). On May 1, 2007, the Debtors filed their Chapter 11 Plan of reorganization and Disclosure Statement explaining that plan. On June 4, 2007, the Debtors submitted an Amended Plan and Disclosure Statement. The Court approved the adequacy if the Amended Disclosure Statement on June 5, 2007. The hearing to consider confirmation of the Debtors' Amended Plan is set for July 11, 2007. (Tower Automotive Bankruptcy News; Issue Number 64/Bankruptcy Creditors' Service, Inc., http://bankrupt.com/newsstand/or 215/945-7000). TRUEBEGINNINGS LLC: Faces Suit Over True.com Membership Terms ------------------------------------------------------------- TrueBeginnings, LLC, the owner and operator of the True.com online dating website, is facing a lawsuit seeking class-action status in the District Court of Dallas County, Texas, alleging True.com continues to charge customers after subscription cancellation. The complaint alleges that True.com charges its customers monthly service fees in excess of $50 per month, and that True.com charges its customers' credit card or bank accounts for these fees. True.com advertises on its website that memberships can be cancelled at any time. However, the complaint alleges that True.com does not accept cancellations in writing or on its website. Instead, True.com will only accept cancellation requests made over the phone. The complaint alleges that True.com bills its former subscribers service fees, even after those subscribers have attempted to cancel their subscriptions over the phone, and that this is done without the knowledge or authorization of the former subscribers. The complaint also alleges that certain of the terms contained in True.com's click-through "Terms" are unconscionable and unenforceable. For example, in the "Terms" is a provision that purports to grant True.com a perpetual, world- wide license to use, distribute or display all information -- including photographs -- submitted by subscribers while using True.com's service. Under this provision, True.com claims the right to use (and potentially to sell) all photographs submitted by a subscriber, even after the subscriber has cancelled his or her membership, without any notice or payment to the former subscriber. The lawsuit seeks an injunction from the court prohibiting the enforcement of this provision. The suit is “Wong v. True Beginnings,” filed in the U.S. District Court for the District Court of Dallas County, Texas. Representing plaintiffs are: Jonathan K. Tycko Tycko, Zavareei & Spiva LLP 2000 L Street, N.W, Suite 808 Washington, DC 20036 Phone: (202) 973-0900 Fax: (202) 973-0950 Website: http://www.tzlegal.com - and - Jon Shepherd Crews, Shepherd & McCarty LLP 2200 Ross Ave. Suite 4650W Dallas, Texas 75201 Phone: 214.432.7770 Fax: 214.432.7771 E-mail: JShepherd@CSM-Lawyers.com WESTERN BEEF: N.Y. Lawsuit Aims to Collect Unpaid Overtime Wages ---------------------------------------------------------------- Western Beef Properties, Inc. is facing a class-action complaint filed in the U.S. District Court for the Eastern District of New York alleging Labor Code violations. Named plaintiff George Gardner brings this action in part as a collective action pursuant to 29 U.S.C. Section 216(b) for monetary damages and injunctive and affirmative relief to redress the deprivation of rights secured, by Western Beef's refusal to pay him a rate of not less than one and one-half times his regular rate for all hours worked in excess 40 hours per week in violation of the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. Section 201, et. seq. and other appropriate rules, regulations, statutes and ordinances. The complaint alleges by willfully failing, refusing or neglecting to pay plaintiff overtime pay, defendant violated the FLSA and plaintiffs are entitled to actual and liquidated damages, injunctive relief and reasonable attorneys' fees pursuant to Section 16(b) of the FLSA, 29 U.S.C. Section 216 (b). This action is in further part of a class action pursuant to the New York State Labor Law, N.Y. LAB. Law Section 190, et. seq., and other appropriate rules, regulations, statutes and ordinances, seeking declaratory, injunctive and affirmative relief, monetary damages and attorneys' fees to redress the deprivation of rights secured to plaintiffs by defendant's refusal to pay them a rate of not less than one and one-half times the regular rate for all hours worked over 40 hours per week. There are questions of law and fact common to the class, which predominate over any questions affecting only individual members, specifically: (a) whether the employment of plaintiffs by the defendant is subject to the jurisdiction and the wage and overtime requirements of the FLSA; and (b) whether defendant failed to pay overtime compensation to numerous non-exempt employees which required payment of overtime pay. Only the amount of damages sustained by each class member will vary depending on their length of service and overtime hours worked each week. As a result of the unlawful discriminatory conduct and actions of the defendant, plaintiff demands judgment as follows: -- declaring this action a collective action for all claims brought under the FLSA; -- declaring this action as a class action, pursuant to the Federal Rules of Civil Procedure, for all claims brought under the New York State Law; -- declaring defendant willfully violated the aforementioned statutes; -- a permanent injunction enjoining defendant, its agents, employees, officers and successors in interest and those acting in concert with defendant, from engaging in the illegal and unlawful customs, policies and practices described in the complaint; -- actual damages for unpaid overtime wages calculated at the rate of not less than one and one-half times the regular rate for all hours worked over 40 hours per week for the three year period preceding the commencement of this action through the date of judgment; -- an equal amount as liquidated damages as provided by the FLSA; -- reasonable attorneys' fees, costs, and disbursements incurred in the action, all in an amount to be determined at trial; -- pre and post judgment interest; and -- for such other and further relief as the court may deem just and proper. A copy of the complaint is available free of charge at: http://ResearchArchives.com/t/s?20f0 The suit is “Gardner v. Western Beef Properties, Inc., Case No. 1:07-cv-02345- RJD-JMA,” filed in the U.S. District Court for the Eastern District of New York, under Judge Raymond J. Dearie, with referral to Judge Joan M. Azrack. Representing plaintiffs is: Pamela Jae Eisner Frank & Associates, P.C. 500 Bi-Country Boulevard, Suite 112N Farmingdale, NY 11735 Phone: 631-756-0400 E-mail: peisner@laborlaws.com W.R. GRACE: Anderson Memorial Moves for Timely Discovery -------------------------------------------------------- Anderson Memorial Hospital asks the U.S. Bankruptcy Court for the District Court of Delaware to direct W.R. Grace & Co. (together with its debtor affiliates, the Debtors) to complete responses to the discovery requests and produce a privilege log without further delay. Christopher Loizides, Esq., at Loizides, P.A., in Wilmington, Delaware, maintains that the information and testimony Anderson seeks relate to the prerequisites for class certification and may rebut the Debtors' arguments that the request for class certification is baseless. The information, Mr. Loizides states, may show that the Debtors recognize internally that some of the major requisites for certification, including commonality and typicality, are easily satisfied. Class Certification Hearing Should Proceed, Debtors Assert Speights & Runyan, on behalf of the Anderson Memorial Hospital, has previously asserted that its discovery requests are relevant to determine whether: -- Anderson Memorial's class action filed in South Carolina proceedings were "fly by night;" -- the Debtors "sought delay in the South Carolina proceedings;" -- "the number and types of claims in the South Carolina class was substantial;" -- Anderson Memorial is an adequate class representative; -- Grace "internally acknowledged the strength of the Anderson class;" and -- Grace was "surprised" that Anderson Memorial sought a class action in the Debtors' bankruptcy cases. The Debtors argue that none of Speights' assertions have the slightest relevance to the class certification issues pending in their bankruptcy proceedings. Timothy P. Cairns, Esq., at Pachulski, Stang, Ziehl, Young Jones & Weintraub, LLP, in Wilmington, Delaware, asserts that requests relating to the circumstances surrounding the South Carolina Anderson Memorial proceedings are irrelevant. The Debtors do not allege in their bankruptcy proceedings that the South Carolina proceedings were "fly by night." Moreover, the Bankruptcy Court has recognized that the South Carolina court never entered a final certification as to the Debtors and the conditional certification order was limited to South Carolina claimants. Requests relating to the number of putative Anderson Memorial class members and the nature of their claims are irrelevant and inappropriate, Mr. Cairns adds. The Court approved the Debtors' notice program and concluded that it was thorough. Only 203 Speights U.S. and Canadian claims, including one South Carolina claim, remain. The small number of remaining claims confirms that Anderson Memorial cannot satisfy the numerosity and superiority requirements of Rule 23 of the Federal Rules of Civil Procedure, Mr. Cairns says. Moreover, Mr. Cairns points out, requests relating to Speight's adequacy as class counsel are irrelevant. The Debtors have previously stipulated that they are no longer challenging Speight's adequacy as class counsel or Anderson Memorial's adequacy as putative class representative. In addition, requests targeting the Debtors' internal assessments of the South Carolina Anderson Memorial litigation are highly improper, Mr. Cairns contends. "Those requests have no bearing on Anderson Memorial's pending motion for class certification, call for work product and attorney-client priviledged materials and, to the extent they seek the production of statements that Grace allegedly made during settlement negotiations, ignore Rule 408 of the Federal Rule of Evidence." Speights cannot use the statements or evaluations of the Debtors' lawyers, or the Debtors' financial reserves, as admissions in support of Anderson Memorial's pending motion for class certification, Mr. Cairns argues. Therefore, Grace's assessments are both undiscoverable and inadmissible, Mr. Cairns avers. Mr. Cairns adds that requests relating to the merits of the property damage claims filed in Anderson Memorial or in the Debtors' bankruptcy proceedings are off-base and are barred by Supreme Court precedent. For the reasons stated, the Debtors ask the Court to deny Anderson Memorial's motion to compel more responses to its discovery requests. The class certification hearing should proceed without further delay, the Debtors emphasize. (W.R. Grace Bankruptcy News, Issue Number 131; Bankruptcy Creditors' Service, Inc., http://bankrupt.com/newsstand/or 215/945-7000). Asbestos Alert ASBESTOS LITIGATION: Court Junks Sherwin-Williams Motion in Suit ---------------------------------------------------------------- The Superior Court of Connecticut, Judicial District of Fairfield, denied The Sherwin-Williams Co.’s motion for summary judgment in an asbestos-related lawsuit filed by Frank L. Vaccarelli. Judge David W. Skolnick handed down the decision of Case Nos. Nos. CV960332364S, BA065001238S, and BA065001337S on May 23, 2007. Before the Court is Sherwin-Williams' motion for summary judgment on the ground that Mr. Vaccarelli has failed to identify a Sherwin-Williams product to which he was exposed that contained asbestos and Mr. Vaccarelli’s objection. The Court has reviewed the deposition transcripts provided as well as interrogatory responses attached to both Sherwin-Williams’ motion and Mr. Vaccarelli’s objection. Whether Mr. Vaccarelli was exposed to asbestos through exposure to a product made by Sherwin-Williams or made by some other company but sold by Sherwin- Williams is immaterial, as the product liability statute covers sellers as well as manufacturers. With Mr. Vaccarelli having testified that he bought Bondex Block Filler and Bondex having disclosed the asbestos content of its Block Filler, at minimum a material issue of fact exists as to whether Mr. Vaccarelli was exposed to asbestos when using the "Bondex" product bought by him from Sherwin-Williams. Accordingly, Sherwin-William's motion for summary judgment is denied. ASBESTOS LITIGATION: Court Upholds Board Ruling in Solberg Case ---------------------------------------------------------------- The Court of Appeals of Oregon upheld the Workers’ Compensation Board ruling in an asbestos-related compensation action filed by Charles J. Solberg. The Appeals Court affirmed the Board's order holding that Mr. Solberg has not established an occupational disease. The Panel, comprised of Judges Armstrong, Schuman, and Rosenblum, handed down the decision of Case Nos. 03-00534 to 03-00540 and A129565 on May 2, 2007. Mr. Solberg sought review of a Board order reversing an administrative law judge’s order and upholding employer's denial of his occupational disease claim for an employment-related condition known as "pleural plaques." Mr. Solberg has noncompensable, severe chronic obstructive pulmonary disease, related to cigarette smoking. Since a chest x-ray showed pleural plaques, an asbestos-related condition, Mr. Solberg was referred to Dr. Dorsett Smith for an asbestos evaluation. Dr. Smith stated that he did not find any evidence of impairment related to Mr. Solberg’s asbestos exposure, but recommended that Mr. Solberg "remain under surveillance related to his prior asbestos exposure." Other physicians concurred in that diagnosis and the recommendation for chest x-rays. Mr. Solberg sought benefits for an occupational disease claim for asbestosis or pleural plaques, and employer denied both conditions. Mr. Solberg requested a hearing. In the absence of evidence that Mr. Solberg suffers from asbestosis, the ALJ upheld employer's denial of that condition. However, the ALJ held that Mr. Solberg’s pleural plaques, which the parties agree are caused by his work exposure to asbestos, constitute a compensable occupational disease. On employer's appeal, the Board reversed the ALJ, holding that, because the pleural plaques do not require medical treatment and do not cause any impairment of function or interrupt or modify any of Mr. Solberg’s vital functions; Mr. Solberg has not established the existence of a "disease." On Mr. Solberg’s petition, the Appeals Court concluded that the Board's finding that Mr. Solberg does not have a "disease" is supported by substantial evidence and therefore affirmed. James S. Coon, Eugene, Ore., argued the cause Charles J. Solberg. With him on the briefs was Swanson, Thomas & Coon. Jerome P. Larkin argued the cause and filed the brief for Tice Electric Co., EC Co., Far West Electrical Construction, Dimitre Electric Co., Ace Electric Co., Midway Electric Co., L.W. Hembree, and Saif Corp. ASBESTOS LITIGATION: Fla. DEP Finds More Hazards on Marco Island ---------------------------------------------------------------- The Florida Department of Environmental Protection has found more asbestos on a different section of a city-owned lot on Marco Island, Fla., Naples Daily News reports. On May 8, 2007, DEP responded to an anonymous complaint that asbestos debris was scattered around what is known as "Site B" of the future Veterans Community Park property located at Elkcam Circle and Park Avenue. DEP inspectors found 30 pieces of asbestos pipe, some as large as 12 inches in diameter, located mainly on the surface and around the site’s perimeter, a DEP report stated. Previously, asbestos had been found on Sites "A" and "C" of the seven-acre property. Up until 2007, city contractor Quality Enterprises had used Site A as a staging area for the four-year Collier Boulevard road construction project scheduled for completion in December 2006. Quality removed 8,000 to 10,000 cubic yards of asbestos-containing material under a federal Environmental Protection Agency-approved cleanup plan in May 2006. The city has found asbestos pipe on Site C, which was not used as a staging area for the road project, in the past 15 months. In October 2006, the Marco Island Police Department initiated a criminal investigation into how asbestos came to Site C. City and Quality officials said Quality has used Site B for its construction equipment and to store new materials during the road project. The asbestos saga received a jolt in March 2007 when more than 50 Marco residents submitted a complaint to various law enforcement and prosecution agencies, alleging official misconduct against City Manager Bill Moss, Police Chief Roger Reinke and a Marco City Council member for accusing citizens of planting asbestos. On May 18, 2007, Collier County Sheriff Don Hunter sent a letter to Florida Department of Law Enforcement Commissioner Gerald Bailey asking Mr. Bailey’s agency to review the allegations of official misconduct against the city. FDLE is at least the seventh agency, including the Marco police department, to review and investigate the situation. The DEP, EPA, Federal Bureau of Investigation, Collier County Sheriff’s Office, and the U.S. Attorney’s Office have all been involved. In April 2007, Sgt. David White of the sheriff’s Economic Crimes Unit wrote to Mr. Moss stating the Sheriff’s Office and FBI were investigating the entire matter and requesting city documents relating to the issue. Sgt. White also wrote to DEP South District Director Jon Iglehart requesting the department’s documents. The investigation changed when the Sheriff’s Office decided to split up the allegations and refer them to different agencies. A conclusion to the Marco Police Department’s investigation into the matter is awaiting a final report from an environmental consultant regarding the cleanup of Site A, Mr. Reinke said. City Public Works Director Rony Joel said following DEP’s visit to Site B in May 2007, Quality’s asbestos contractor walked the site and found an additional dozen pieces of pipe. Those were removed as part of the cleanup effort at Site A, city spokeswoman Lisa Douglass said. ASBESTOS LITIGATION: Court Orders Scapa to Pay $832T in Damages ---------------------------------------------------------------- Scapa Group plc said a Middlesex County, N.J. court has ordered it to pay US$832,000 in damages after a ruling in an asbestos case filed by five former paper mill workers, Thomson Financial reports. The court awarded the damages after a ruling against the Company by the jury for three out of five of the plaintiffs. The Company said it is examining the verdict and is considering whether to appeal the decision. Blackburn, U.K.-based Scapa Group plc makes technical adhesive tapes and films used by the automotive, aerospace, graphic arts, sports, electronics, industrial assembly, and medical markets. The Company’s commercial customers use its technical tapes for assembly and repair, protection, insulation, and identification. ASBESTOS LITIGATION: Supreme Court OKs Widow’s New Trial v. CSX ---------------------------------------------------------------- The West Virginia Supreme Court, on June 6, 2007, ordered a new trial for Sally Black in her asbestos-related case against CSX Transportation Inc., LegalNewsline.com reports. Mrs. Black lost her husband, Charles Black, to colon cancer. During a juror examination in 2005, Dr. Edward Polack was asked why he wrote that he had a bias against personal injury attorneys. "Physicians tend to not like trial lawyers," Dr. Polack replied. Though Dr. Polack went on to say that he would base his verdict on scientific information and not emotional information in Mrs. Black’s case, the Supreme Court decided Dr. Polack never should have been allowed to stay on the jury. A Kanawha Circuit Court jury had found that while CSX was negligent in exposing Mr. Black to asbestos, it was not responsible for his death. After Mrs. Black's post-trial motions were declined, she filed the appeal, alleging that Dr. Polack should never have been allowed to stay on the jury panel. Her attorney, Robert Daley, of Pittsburgh's Robert Peirce and Associates, twice tried to have Dr. Polack disqualified. However, Judge Arthur Recht decided that Dr. Polack could be trusted. One of Mrs. Black's attorneys asked Dr. Polack if there was anything aside from trial lawyers that contributed to any bias. The Supreme Court decided that Dr. Polack should have been cut loose. Justice Brent Benjamin was the lone dissenter, and reserved the right to file a dissenting opinion in the future. The Court also says Judge Recht attempted to "rehabilitate" Dr. Polack. "Because the trial court denied Mrs. Black's repeated motions to so strike Dr. Polack and, instead, required her to use one of her peremptory strikes to remove him from the jury panel, we find that the trial court abused its discretion," the opinion says. ASBESTOS LITIGATION: Smoker’s Heirs Sue Four Firms in Tex. Court ---------------------------------------------------------------- The heirs of Joe Coleman's estate are suing: Ametek Inc., CertainTeed Corp., Georgia-Pacific Corp., and Viacom Inc., for conspiring to inflict him with an asbestos-related disease, The Southeast Texas Record reports. Mr. Coleman’s heirs -- DeLoris and Jack Coleman, along with Jihnathan Evans and Gaynell LaGrone -- have filed their original petition with the Jefferson County District Court on June 4, 2007. Judge Milton Shuffield, 136th District Court, has been assigned to Case No. D179-435. According to medical documents attached to the suit, Mr. Coleman was 70 years old when he died of metastatic carcinoma (laryngeal cancer). He was a heavy smoker for most of his adult life. The documents indicated that a combination of asbestos-containing materials and 47-year history of smoking caused Mr. Coleman’s cancer. He died on June 14, 2005. The suit faults the defendants with negligence, liability and conspiracy. The plaintiffs are suing for physical pain and suffering in the past and future, mental anguish in the past and future, lost wages, loss of earning capacity, disfigurement in the past and future, physical impairment in the past and future, and past and future medical expenses, plus funeral expenses. Ian Cloud of the Heard, Robins, Cloud & Lubel law firm represents the plaintiffs. ASBESTOS LITIGATION: 3 Automakers Object to Federal-Mogul’s Plan ---------------------------------------------------------------- Ford Motor Co., DaimlerChrysler Corp., and Volkswagen of America Inc. are objecting to the terms of Federal-Mogul Corp.’s Chapter 11 plan, Associated Press reports. Federal-Mogul is poised to end a six-year stay in bankruptcy by becoming the property of billionaire investor Carl Icahn. The auto makers claim the plan would unfairly shield Cooper Industries Inc. from asbestos liability involving a brake-pad company it sold to Federal- Mogul in the 1990s. Cooper is not in Chapter 11, but the Company wants to put money into a trust that will be set up under Federal-Mogul's Chapter 11 plan and that would absorb the Company's asbestos liabilities. If that occurs, that would leave Ford, DaimlerChrysler, and Volkswagen exposed to a bigger share of damages for the automotive industry's asbestos liabilities than they think is fair. Lawyers for DaimlerChrysler and Volkswagen wrote in court papers filed with the U.S. Bankruptcy Court in Wilmington, Del., that Federal-Mogul's Cooper deal "can fairly be seen as a Chapter 11 debtor's effort to sell bankruptcy code protection." On June 7, 2007, lawyers for Federal-Mogul went before a bankruptcy judge in an all-day session meant to set the stage for a June 18, 2007 confirmation hearing. In past hearings, however, Federal-Mogul attorney James Conlan has said the Chapter 11 plan has a fail-safe mechanism that means Federal-Mogul can get out of bankruptcy even if the deal with Cooper is ruled illegal. The car makers object to Federal-Mogul's "Plan A" option, which calls for Cooper and Pneumo Abex, the brake business it sold, to put US$256 million in cash into Federal-Mogul's trust. Cooper would also put up a US$500 million note, payable at the rate of US$20 million a year if Federal-Mogul's Chapter 11 trust runs out of money. Under "Plan B," Cooper and Pneumo Abex do not get to send asbestos claimants looking toward Federal-Mogul's Chapter 11 trust for payment. Instead, "Plan B" calls for Federal-Mogul to pay Cooper and Pneumo Abex US$140 million, which would end Federal-Mogul's asbestos-related liability to Cooper, and leaves Cooper and Pneumo Abex open to asbestos suits. The Chapter 11 plan splits ownership of reorganized Federal-Mogul between asbestos creditors and commercial creditors, of which Mr. Icahn is the largest. Mr. Icahn plans to buy out the asbestos creditors' half of the Company, once Federal-Mogul is out of Chapter 11. Billions in asbestos liabilities drove Federal-Mogul into Chapter 11 in October 2001. ASBESTOS LITIGATION: Suits v. Mallinckrodt Inc. Rise to 10,020 ---------------------------------------------------------------- Covidien Ltd. states that, as of March 30, 2007, about 10,020 asbestos liability cases were pending against one of its subsidiaries, Mallinckrodt Inc., according to a Company report, on Form 8-K, filed with the U.S. Securities and Exchange Commission on June 8, 2007. On June 7, 2007, Tyco International Ltd. announced that its Board of Directors had approved the distribution to its shareholders of all of its common shares of Covidien, a wholly owned subsidiary of Tyco International that holds directly or indirectly the assets and liabilities associated with Tyco International's healthcare businesses. As of Sept. 29, 2006, Tyco Healthcare Group recorded about 9,900 asbestos liability cases that were pending against Mallinckrodt. (Class Action Reporter, Jan. 26, 2007) Mallinckrodt faces personal injury lawsuits based on alleged exposure to asbestos-containing materials. The Company has observed an increase in the number of these suits in the past several years. Most of the cases involve product liability claims, based principally on allegations of past distribution by a former Mallinckrodt business of heat- resistant industrial products incorporating asbestos. A limited number of the cases allege premises liability, based on claims that individuals were exposed to asbestos while on Mallinckrodt's property. Each case typically names dozens of corporate defendants in addition to Mallinckrodt. The complaints generally seek monetary damages for personal injury or bodily injury resulting from alleged exposure to products containing asbestos. The Company’s involvement in asbestos cases has been limited because Mallinckrodt did not mine or produce asbestos. Furthermore, a large percentage of these claims were never substantiated and have been dismissed by the courts. COMPANY PROFILE Covidien Ltd. 15 Hampshire Street Mansfield, Mass. 02048 Tel: (508) 452-4343 Fax: (508) 452-4208 www.covidien.com Description: The Company develops, manufactures, and distributes medical devices and supplies, diagnostic imaging agents, pharmaceuticals and other healthcare products for use in clinical and home settings. Company products, sold under brand names like United States Surgical, Autosuture, Valleylab, Mallinckrodt, Nellcor, Puritan Bennett and Kendall, serve healthcare needs in the operating room and other hospital settings, long-term care and other alternate care facilities, doctors' offices and the home. ASBESTOS LITIGATION: Kubota Corp. Pays JPY25M-JPY46M to Victims ---------------------------------------------------------------- Kubota Corp., as of March 31, 2007, had paid out, based on eligibility criteria under the law, between JPY25 million and JPY46 million on 125 occasions to mesothelioma victims or bereaved families that lived or worked near the Company’s Kanzaki factory in Amagasaki, Hyogo Prefecture, The Daily Yomiuri reports. It has been learned that the Company has informed two lung cancer sufferers who worked near the Kanzaki factory handling asbestos that they are eligible for financial assistance, the first time the firm has agreed to pay out to victims of the disease. The man and woman, who are from Osaka Prefecture, used to work near the Kanzaki factory, according to Amagasaki Rodosha Anzen Eisei Center, a group that supports workers' health and safety issues. The man worked at a company about 50 meters south of the factory in the 1950s and 1960s, and the woman ran her own business about one kilometer from the plant. Although neither of them had ever handled asbestos, they demanded financial assistance from the Company after being recognized as eligible to have their medical fees paid under a law for the relief of people suffering from health problems linked to asbestos. Victims of lung cancer are eligible for payment in the Company’s regulations, but there had previously been no cases of victims meeting legal conditions for assistance. Osaka, Japan-based Kubota Corp. makes tractors and farm equipment like rice transplanters and combine harvesters. The Company, established in 1890, also produces iron ductile pipe used in water-supply systems. ASBESTOS LITIGATION: Smoker’s Kin Files Suit v. 43 Firms in Tex. ---------------------------------------------------------------- Linda Lou Rogers and Janice Arline Robinson, the executrix of the estate of Ray Rogers, on June 6, 2007, filed an asbestos-related action against the A.O. Smith Corp. and 42 other major corporations with the Jefferson County District Court in Texas, The Southeast Texas Record reports. Mr. Rogers died of lung cancer at the age of 83 nearly two years ago. A smoker for most of his adult life, he worked at the Gulf Oil Co. in Port Arthur from 1946 to 1980 as a boilermaker. This is the ninth case of its kind filed by Attorney Bryan Blevins of Provost Umphrey in the last three months. Mrs. Rogers and Ms. Robinson have joined a list of growing plaintiffs in Jefferson County who are blaming an assortment of corporations like aerospace giant Lockheed Martin Corp. and iron supplier Zurn Industries Inc. for manufacturing and distributing asbestos laced products. Judge Gary Sanderson, 60th Judicial District, will preside over Case No. B179- 447. The suit said, “No amount of due diligence would have allowed decedent to recover for his malignant asbestos-related injury when his original suit for non-malignant asbestos-related disease was brought.” The petition says the 43 defendants entangled in Mr. Rogers’ suit were negligent, failing to adequately test their asbestos-laced products before flooding the market with dangerous goods. In addition, the petition faults Minnesota Mining and Manufacturing Corp. (3M Corp.) and American Optical Corp. for producing defective masks that failed to "provide respiratory protection." The plaintiffs are suing for physical pain and suffering in the past and future, mental anguish in the past and future, lost wages, loss of earning capacity, disfigurement in the past and future, physical impairment in the past and future, and past and future medical expenses. The plaintiffs are also suing for funeral bills and the loss of numerous household services. ASBESTOS LITIGATION: Court Voids $169T Damages Award v. Mechanic ---------------------------------------------------------------- The Texas Supreme Court, on June 8, 2007, voided Arturo Flores’ US$169,000 damage award, in which the Court stated that he failed to quantify how much asbestos had been inhaled on the job, Austin-American Statesman reports. During more than 30 years as a mechanic, the Corpus Christi, Tex.-based Mr. Flores ground hundreds of brake pads, each seven percent to 28 percent asbestos, to reduce brake squealing. The process raised a lot of dust in a small room, and Mr. Flores developed breathing problems. He was diagnosed with asbestosis. He sued four manufacturers of the brake pads, in which three settled. However, BorgWarner Inc. disputed that Mr. Flores, a longtime smoker, had asbestosis. The Michigan auto parts supplier lost at trial and on appeal. The Supreme Court, however, found that the lower courts mistakenly blamed Mr. Flores’ illness on BorgWarner brake pads based on his frequent, regular exposure to the dust from grinding. The court said that without establishing how much asbestos could have been inhaled or whether the amounts were sufficient to cause asbestosis, there is no way to judge BorgWarner's liability. "There is no question, on this record, that mechanics in the braking industry could be exposed to respirable asbestos fibers. But without more, this testimony is insufficient to establish that the BorgWarner brake pads were a substantial factor in causing Flores' disease," Chief Justice Wallace Jefferson wrote on behalf of the unanimous court. BorgWarner lawyer Deborah Hankinson praised the ruling for restoring fairness to asbestos litigation. However, Brent Rosenthal, Mr. Flores’ appeals lawyer, said the decision will make it more difficult for deserving asbestosis patients to press lawsuits. Although the court indicated that expert testing could help prove the presence of asbestos, that testing is too expensive for many, he said. The ruling would have had far-reaching implications for asbestos suits were it not for a 2005 state law that required asbestosis plaintiffs to meet strict medical requirements, including X-rays and specific breathing tests, Mr. Rosenthal said. ASBESTOS LITIGATION: Inquest Links Death to Husband’s Clothes ---------------------------------------------------------------- Edith Smith, of Hanham, Bristol, U.K., died after developing mesothelioma from washing the asbestos-covered building clothes of her husband, Desmond, the Evening Post reports. An inquest heard that Mrs. Smith died on July 1, 2006. Deputy Avon Coroner Terrence Moore was told that Mrs. Smith had hand-washed her husband's clothes for a couple of years while her husband was a builder in the 1950s or 1960s. Mrs. Smith's brother John Barclay, whose statement was read to the court, said she had come to live with him and his wife before her death. Mr. Barclay's statement said Mrs. Smith had worked for Fry's chocolate factory in Keynsham and had married Mr. Smith at the age of 23. However, Mr. Smith he was a heavy smoker and died in 1988 from lung cancer, the statement said. Pathologist Edward Sheffield, whose evidence was read to the court, said in his examination that Mrs. Smith suffered from a malignant mesothelioma tumor. The tumor took up five-sixths of her right lung, he said. Recording a verdict of death through industrial disease, the coroner said. “She suffered from malignant mesothelioma, a disease on would normally have associated with someone working with asbestos and the like.” ASBESTOS LITIGATION: Man’s Death Linked to Nuclear Plant Hazards ---------------------------------------------------------------- An inquest heard that Roger Paul Prideaux, a carpenter from Highbridge, Somerset, United Kingdom, died from an industrial disease after working with asbestos at Hinkley Point nuclear power station in the 1960s, This Is Somerset reports. Mr. Prideaux, aged 61, died on March 21, 2007, three months after he was diagnosed as suffering from mesothelioma. At the inquest into the cause of death, Mr. Prideaux’s widow, Linda Margaret, said her husband was a carpenter and joiner who, from 1963 to 1970, worked for the builder Robert McAlpine at Hinkley Point. Mrs. Prideaux said, “He was hanging asbestos on doors, walls and ceilings and did not say he was given protective clothing.” West Somerset Coroner Michael Rose said, “Between 1963 and 1970 he worked at Hinkley Point and no protective equipment was given. There was a very high exposure of asbestos at this power station.” Mr. Rose recorded a verdict of death from an industrial disease, the cause being malignant mesothelioma. ASBESTOS LITIGATION: Melbourne Univ. Delays Reopening of Center ---------------------------------------------------------------- The University of Melbourne in Victoria, Australia, delays the reopening of its Queensberry Children’s Center due to asbestos, ABC NewsOnline reports. The center was closed during the week after fragments of cement sheeting containing asbestos were found in the playground. The centre was due to open on June 12, 2007, but will now remain closed until June 18, 2007. The asbestos had come from a neighboring demolition site. ASBESTOS LITIGATION: Machinist Sues Alton & Southern in Illinois ---------------------------------------------------------------- Freddie Bennett, Jr., an Alton & Southern Railway machinist, sued the railroad on June 4, 2007 in St. Clair County Circuit Court, seeking in excess of US$100,000 for work-related injuries, The Madison St. Clair Record reports. Mr. Bennett, who has worked for the railroad since 1986, claims he has had to constantly manipulate and operate heavy, awkward, ergonomically compromised equipment. His work has included coupling and uncoupling air hoses and MU cables and setting and releasing hand brakes that were defective and unsafe, he claims. Mr. Bennett claims the railroad failed to provide him with a reasonably safe place to work. Mr. Bennett also claims the defendant required him to work in "shorthanded situations with inadequate manpower, assistance, help and/or time for plaintiff to perform his required employment tasks for defendant in a reasonably safe manner." Mr. Bennett claims the negligent acts of the defendant has resulted in an aggravation, acceleration and/or exacerbation of pre-existing conditions to his bilateral upper extremities, neck, cervical spine, thoracic spine, back, lumbar spine and bilateral lower extremities. The suit also claims that Mr. Bennett suffers from asbestosis as a result of Alton & Southern's alleged negligence. Patrick S. O’Brien and Jeffrey E. Chod of Rathmann & O’Brien in St. Louis represent Mr. Bennett. ASBESTOS LITIGATION: Mass. Worker Files Exposure Suit on June 4 ---------------------------------------------------------------- Wallace Bunyea of Massachusetts, on June 4, 2007, filed an asbestos-related lawsuit in Madison County Circuit Court, in which he claimed his disease was wrongfully caused, The Madison St. Clair Record reports. Mr. Bunyea names nine defendant corporations that include Bondex International, Garlock, Georgia-Pacific Corp., John Crane Inc., Owens- Illinois Inc., Pneumo Abex Corp., RPM International Inc., RPM Inc., and Young Insulation Group of Memphis Inc. Mr. Bunyea claims he has been employed since 1991 as a delivery driver, cleaner and systems technician in various locations. He claims 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 emanating from certain products he was working with and around. Mr. Bunyea claims the defendants knew or should have known that the asbestos fibers contained in their products had a toxic, poisonous and highly deleterious effect upon the health of people. According to Mr. Bunyea, he first became aware that he suffered from mesothelioma in April 2006. Mr. Bunyea alleges 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. Mr. Bunyea also claims that the defendants failed to require and advise employees of hygiene practices designed to reduce or prevent carrying asbestos fibers home. As a result of the alleged negligence, Mr. Bunyea claims he was exposed to fibers with asbestos. The complaint states that he developed a disease caused only by asbestos which has disabled and disfigured him. The complaint states that Mr. Bunyea also 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." Mr. Bunyea seeks at least US$100,000 in damages for negligence and willful and wanton conduct. Robert Phillips, Nicholas Angelides, John Barnerd, and Perry Browder of SimmonsCooper in East Alton, Ill., represent Mr. Bunyea. Circuit Court Judge Daniel Stack has been assigned Case No. 07 L 504. ASBESTOS LITIGATION: Contractor Pleads Guilty to CAA Violation ---------------------------------------------------------------- Bilaz Inc.’s owner, Branko Lazic, on June 11, 2007, pleaded guilty to one count of criminally violating the Clean Air Act over the removal of asbestos from the Mattison Elementary School in Ambler, Pa. in June 2002, according to a U.S. Department of Justice press release dated June 11, 2007. Mr. Lazic was hired to remove asbestos from several areas in the elementary school, which was undergoing renovation. These areas included the boiler room and the ceiling pipe joints, known as "elbows," on the first floor. Mr. Lazic admitted that he left the elementary school during the asbestos removal process despite knowing that it was likely the workers he employed would remove the asbestos from the ceiling elbows improperly. After the removal work was completed in preparation for the new school year, janitors and teachers removed a white dust residue from the floors and furniture. The plea took place before Hon. Juan R. Sanchez in the Eastern District of Pennsylvania. Sentencing has been scheduled for Oct. 1, 2007 at 10 A.M. EDT. Mr. Lazic faces up to five years in jail, three years probation, and a US$250,000 fine. The plea agreement also requires Mr. Lazic to make restitution payments as ordered by the court. The cases is being prosecuted by Rocky Piaggione, Senior Counsel for the Justice Department's Environmental Crimes Section, Albert Glenn, Assistant U.S. Attorney, and Joseph Lisa, Special Assistant U.S. Attorney, both for the Eastern District of Pennsylvania. This case was investigated by Special Agent Charles Ferrante of the U.S. Environmental Protection Agency, and Investigator Robert Kelly of the Pennsylvania Attorney General's Office. ASBESTOS LITIGATION: U.S. EPA Sues Ariz. City for CAA Violations ---------------------------------------------------------------- The U.S. Department of Justice, on behalf of the U.S. Environmental Protection Agency, sued city of Winslow, Ariz., a former city administrator, and a former apartment complex owner for improper asbestos removal and demolition of nine apartment buildings -- violations of the Clean Air Act, according to an EPA press release dated June 11, 2007. The city, former City Administrator John Roche and former apartment complex owner William Christie were responsible for the demolition of the Apache Apartments, located on the 1100 block of Apache Avenue, that included the breaking up of, collection, transport and burning of asbestos-containing materials. Deborah Jordan, the EPA's Air Division Director for the Pacific Southwest region, said “The regulations that were violated in this case are designed to protect workers and the public from exposure to friable asbestos, a known carcinogen. Not only was asbestos released to the outside air during the demolition, but released again at the landfill, and again when the debris was burned and uncontained for weeks.” After the city declared the apartment buildings uninhabitable, Mr. Christie signed an agreement in May 2002 stating that he would remove asbestos- containing transite siding from the buildings and pay the city US$3,000 in return for city-employed crews to demolish and haul away all structures on the property. Mr. Christie, the city, and Mr. Roche failed to notify the Arizona Department of Environmental Quality in writing their intent to demolish the apartments. After the city demolished four of the nine buildings, an ADEQ inspector, acting on complaints from Winslow residents, directed the city to stop all demolition work pending a thorough asbestos survey, directed the city to submit notification before any work resumed, and notified the city of its legal requirements. Mr. Roche, acting for the city, refused to comply and the remaining five buildings were demolished with asbestos-containing materials in place. Some asbestos-contaminated debris was improperly disposed of at the Painted Desert Landfill, and additional asbestos debris was transported to city-owned property and burned -- resulting in additional asbestos release and exposure to workers and the public. Under the complaint, the city, Mr. Christie, and Mr. Roche allegedly violated the National Emission Standards for Hazardous Air Pollutants for asbestos, including: -- Failure to notify ADEQ of asbestos removal activities, -- Failure to remove asbestos-containing materials, -- Failure to keep the materials adequately wet to prevent air borne fibers, -- Failure to ensure that no visible emissions from asbestos-containing materials were emitted into the air, and -- Failure to keep waste shipment records for all asbestos-containing materials transported off the facility site. The defendants are subject to civil penalties of up to US$27,500 per day for each violation. ASBESTOS LITIGATION: Libby, Mont. Locals Await W.R. Grace Ruling ---------------------------------------------------------------- Gayla Benefield, an activist with asbestos-related disease, on June 7, 2007, said that people sickened by asbestos from a Libby, Mont., mine that closed in 1990 continue to hope for a meaningful trial as federal appellate judges consider the future of the government's case against mine operator W.R. Grace & Co., The Associated Press reports. At a Seattle hearing, federal lawyers told a three-judge panel of the 9th U.S. Circuit Court of Appeals that properly prosecuting Grace on charges it concealed dangers of asbestos in Libby will be impossible, unless several court decisions are reversed. U.S. District Judge Donald Molloy of Missoula, Mont., decided in 2006 to ban federal prosecutors' use of scores of documents, studies and testimony by expert witnesses. Judge Molloy's decision derailed government efforts to bring Grace and seven of its current and former senior executives and managers to trial last September. In court, federal lawyers asked the 9th Circuit to overturn Molloy's rulings. Since at least the mid-1970s, Grace and its officials knew about but concealed devastating health effects tied to asbestos exposure, the government said. Assistant U.S. Attorney Kris McLean from Montana and Todd Aagaard from the Justice Department said Judge Molloy's rulings forbid the government from presenting information drawn from Grace's own asbestos testing of its vermiculite products. Also forbidden is information from the U.S. Environmental Protection Agency's asbestos sampling in Libby, and the results of a government study in which 7,300 people from the Libby area had chest X-rays and medical interviews, the lawyers said. The study found more than 1,300 of those tested had lung abnormalities consistent with asbestos-related disease. Mr. McLean and Mr. Aagaard also said Judge Molloy dismissed the most serious charges, multiple counts of "knowing endangerment." The Clean Air Act states it is a crime for anyone to release hazardous pollutants into the air while aware those actions will place another person in clear danger of death or serious injury. Grace and some of its senior staff were accused of crimes that include criminal conspiracy and knowing endangerment. Charges were announced in 2005. The trial tentatively is rescheduled for September 2007. Federal lawyers are awaiting a 9th Circuit decision before moving forward. ASBESTOS LITIGATION: Two Groups to File Suit Against Northshore -------------- -------------------------------------------------- The North Star Chapter of the Sierra Club and the Save Lake Superior Association are to wait 60 days before they can file an asbestos-related lawsuit against Northshore Mining Co. in Silver Bay, Minn., Lake County News- Chronicle reports. The North Star Chapter of the Sierra Club and SLSA faxed a notice of intent to sue Northshore officials in Cleveland and Silver Bay on May 29, 2007. The move was prompted by findings of higher-than-acceptable levels of mineral fibers in the air near the Silver Bay plant. LeRoger Lind of Two Harbors, a member of SLSA, said environmental groups have been worried for years about the asbestos-like fibers, but have not been able to do much about it because there's been no standard for judging the level of danger, and because lately there's been no data to refer to. Mr. Lind said that in 1978, the Minnesota Supreme Court agreed that air quality comparison studies between Silver Bay and St. Paul (as a control city) should be done regularly. However, testing was begun again in March 2006 as a requirement for reactivation of furnace No. 5 at Northshore. The complaint claims that recently released data shows airborne fiber levels near the Silver Bay plant are on average three times higher than in St. Paul. That's in violation of both the federal court order and of Northshore's operating permit under the federal Clean Water Act. Mr. Lind said another impetus for the pending suit was that 50 cases of mesothelioma were discovered on the Iron Range. Asbestos-like fibers have been an issue on Lake Superior's North Shore for more than 30 years. A 1970s federal court decision forced then-Reserve Mining to stop dumping taconite tailings into the lake because the water was found to contain high levels of those fibers. Since then, the issue has become whether those same fibers in the air are inhaled by works and residents, and whether they cause lung disease. According to the notice of intent to sue, air monitoring over the past five years showed one Silver bay air monitor breached St. Paul standard on 61 of 79 occasions. Several reports showed the Silver Bay site fiber levels more than 10 times the St. Paul level, and one report showed fiber levels 100 times greater near Silver Bay. Northshore has asked Minnesota courts to drop the St. Paul air comparison from its air permits. During the 60-day waiting period, Northshore can work to satisfy Minnesota Pollution Control Agency requirements for their permit, and if that happens, the suit would not be filed. If it does get filed, the two complainants will work toward getting the plant to reduce the level of fiber emissions. ASBESTOS LITIGATION: Court Grants DuPont’s Summary Judgment Move ---------------------------------------------------------------- The Superior Court of Delaware, New Castle County granted E.I. du Pont de Nemours and Co.’s Motions for Summary Judgment over the asbestos-related claims of Henry Wenke and William Arterbridge. Judge Slights handed down the decision of Civil Action Nos. 03C-10-277 and 03C-05-031 on May 31, 2007. Mr. Wenke alleged he was exposed to asbestos on DuPont's premises while installing asbestos pipe insulation for various independent contractors. At his deposition, Mr. Wenke testified that he had worked as a pipe insulator for his entire work life and that his first exposure to asbestos on DuPont property occurred when he worked for Armstrong Cork in the 1940s and 1950s at DuPont's Newport plant and the DuPont Experimental Station. Mr. Wenke later worked for Delaware Insulation as a member of the Local 42 Asbestos Workers Union. While employed by Delaware Insulation, he worked at various DuPont facilities. Mr. Wenke alleged that he developed an asbestos-related disease as a result of his exposure to asbestos while working on these various DuPont properties. He has asserted claims against DuPont based on various theories of landowner or premises liability including a claim that DuPont engaged in active control over the manner and method of his employer's work or voluntarily assumed responsibility for safety on each of the identified work sites. Mr. Arterbridge alleged he was exposed to asbestos while he worked through the Local 42 Asbestos Workers Union for various independent contractors from 1946 to 1976. He worked as a pipe coverer and asbestos insulator throughout his career. While his exact job duties varied from facility to facility, Mr. Arterbridge worked directly with asbestos products at each facility doing things like insulating valves, patching foamglass insulation, and applying insulation. Mr. Arterbridge alleged that he developed an asbestos-related disease as a result of his exposure to asbestos while working on various DuPont properties. He has asserted claims against DuPont based on various theories of landowner liability including, but not limited to, a claim that DuPont engaged in active control over the manner and method of his employers' work or voluntarily assumed responsibility for safety on these sites. DuPont has moved for summary judgment in several cases brought against it. Plaintiffs cannot prevail on any set of facts they have presented as predicates for their claims of negligence against DuPont because the hazard to which they were exposed was a direct result of the asbestos insulation work they were contracted to perform at each of the DuPont facilities they have identified. DuPont did not owe these Plaintiffs a duty to protect them from the hazards of their own job. The Court is obliged to conclude that the Wenke and Arterbridge claims failed because they were exposed to asbestos "as a result of their own work or their employers' work with asbestos." Thomas C. Crumplar of Jacobs & Crumplar P.A., Wilmington, Del., represented Henry Wenke and William Arterbridge. John C. Phillips, Jr. of Phillips, Goldman & Spence, P.A., Wilmington, Del., represented E.I. du Pont de Nemours and Co. ASBESTOS LITIGATION: Exide’s French Unit Faces 64 Worker Claims ---------------------------------------------------------------- Exide Technologies said that, since 1982, the French governmental agency responsible for worker illness claims received 64 employee claims alleging asbestos-related illnesses from La Compagnie europeenne d'accumulateurs (CEAC), the Company's subsidiary in France. From 1957 to 1982, CEAC operated a plant using crocidolite asbestos fibers in the form of battery cases, which, once formed, encapsulated the fibers. About 1,500 employees worked in the plant over the period. For some of those claims, CEAC is obligated to and has indemnified the agency in accordance with French law for about US$400,000 in calendar 2004. In addition, CEAC has been adjudged liable to indemnify the agency for about US$100,000 million during the same period for the dependents of four such claimants. The Company was not required to indemnify or make any payments in calendar years 2005 and 2006. Alpharetta, Ga.-based Exide Technologies makes lead acid batteries, with fiscal 2007 net sales of about US$2.9 billion. The Company manufactures and supplies lead acid batteries for transportation and industrial applications worldwide. ASBESTOS LITIGATION: Judge Orders Move to Fast Track 95T Claims ---------------------------------------------------------------- U.S. Chamber Institute for Legal Reform President Lisa A. Rickard released the following statement on the recent order by U.S. District Court Judge James T. Giles designed to "facilitate the expeditious movement" of pending asbestos cases on his multidistrict litigation docket in Philadelphia, according to a U.S. Chamber Institute for Legal Reform press release dated June 12, 2007. "U.S. District Court Judge James T. Giles should be applauded for his new order aimed at getting to the bottom of about 95,000 federal asbestos claims, some dating back 16 years, which are part of multidistrict litigation in Philadelphia. An estimated 90 percent of those claims are filed by non- malignant plaintiffs. "Judge Giles put the plaintiffs' attorneys on notice that he thinks mass screenings lack reliability and accountability and says he will hold hearings to determine which asbestos screenings meet with acceptable medical standards. "He's also forcing the plaintiffs to supply identifying information like their date of birth and partial social security numbers as well as medical diagnosing reports. These are elementary requirements that should have been demanded years ago and will help to weed out "double-dippers" -- those seeking to recover multiple times over. "It is apparent that the more Judge Giles learns about the tens of thousands of dubious asbestos cases in his court, the more determined he is to weed out the bad cases and bring justice to the meritorious ones. Those truly injured by exposure to asbestos have been denied their Constitutional right to access the courts due to the hoards of manufactured claims clogging them. Those bogus claims have also helped to bankrupt companies, harming both shareholders and the tens of thousands of employees who have lost their jobs." The mission of the Institute for Legal Reform is to make America's legal system simpler, fairer, and faster for everyone. It seeks to promote civil justice reform through legislative, political, judicial, and educational activities at the national, state, and local levels. CONTACT: Larry Akey of the U.S. Chamber Institute for Legal Reform, +1-202- 463-5824 ASBESTOS LITIGATION: Man to Pay $250T Fine for Disposal Breaches ---------------------------------------------------------------- Terrance Yates, a 43-year old from California, faces up to five years in prison and a penalty of up to US$250,000 for asbestos-related disposal violations, Capitalonline reports. Mr. Yates, on June 12, 2007, pleaded guilty in the U.S. District Court in Greenbelt, Md. to lying about asbestos-filled trailers in West County. He is scheduled to be sentenced on Sept. 17, 2007. Federal officials allege that Mr. Yates dumped the trailers in Severn, Md., instead of sending them to a landfill in Pennsylvania, according to court documents. According to the plea agreement, Mr. Yates owned Hazport Solutions Inc. from 1997 until 2006. He transported asbestos from construction sites to landfills on behalf of asbestos-abatement companies. From 2004 to 2006, Mr. Yates hired contractors to move more than a dozen trailers of asbestos from sites in Maryland, Virginia and Washington to a landfill in Pennsylvania, according to the plea agreement. However, Mr. Yates took possession of the trailers, paid the contractors and left the trailers on a lot in Severn, according to the plea agreement. Meanwhile, Mr. Yates filled out the waste-shipment record and sent it back to his contractors saying the trailers were taken to the Pennsylvania landfill, according to the plea agreement. A dozen trailers, eight of them with asbestos, later were found by law enforcement officials. None of the containers had plastic lining and none had signs indicating asbestos was inside. The Environmental Protection Agency cleaned up the site between August 2006 and December 2006 at a cost of US$57,000. Mr. Yates was not prosecuted for the alleged dumping. Rather, he was charged with falsifying the paperwork. Mr. Yates’ lawyer, federal public defender Joseph Evans, said his client got in over his head with his business, which was mostly a one-man operation. Mr. Evans said Mr. Yates dropped the trailers at a rental property owned by Walt Eger, proprietor of Walt Eger's Service Center in Severn. The case was investigated by EPA's Criminal Investigation Division with assistance from EPA's National Enforcement Investigations Center and the Maryland Department of the Environment. ASBESTOS LITIGATION: U.S. Senators Close on Deal to Ban Asbestos ---------------------------------------------------------------- Sen. Patty Murray, D-Wash., and Sen. Johnny Isakson, R-Ga., on June 12, 2007, said that they were within a week or two of wrapping up legislation that would ban asbestos, McClatchy Newspapers reports. The legislation would also authorize US$50 million in research to combat the health effects that have killed as many as 231,000 people since 1980 and could claim at least that many more by 2040. Some of the research money also could go toward identifying the risks of inhaling naturally occurring asbestos. Construction equipment and travel on unpaved roads can send the mineral into the air. The agreement was disclosed at a June 12, 2007 hearing before the Senate Environment and Public Works Committee. That panel's chair, Sen. Barbara Boxer, D-Calif., joined Sen. Murray in introducing the bill early in 2007. Boxer said that despite the well-established health threats of asbestos, the use of it was rising worldwide. Sen. Boxer said, “World production of asbestos actually increased in 2005, from 2.36 million metric tons in 2004 to 2.4 million metric tons in 2005.” Sen. Boxer added that while the last U.S. mine closed in 2002, 2,530 metric tons were imported into the country in 2005, along with 90,000 metric tons of products that contain it. About 40 countries ban asbestos. Alternative products already are on the market in the U.S. However, the substance still is used by some of the 16 or so U.S. plants that produce chlorine. Under the compromise that Sen. Murray and Sen. Isakson are finalizing, those manufacturers would get waivers for up to three years to retool. Another component of the bill is a campaign to better inform the public about asbestos and its health risks. ASBESTOS LITIGATION: Lagger’s Daughter Gets MoD’s GBP25T Payout ---------------------------------------------------------------- Debbie Brewer, of Plymouth, England, U.K., has been awarded by the Ministry of Defence an interim payment of GBP25,000 as compensation, The Herald reports. Mrs. Brewer, 47 years old, has been waiting for payment since winning a compensation claim against the MoD in February 2007. Mrs. Brewer said her only possible contact with the chemical was through her father Phillip Northmore, who died in August 2006 from what an inquest found was a small cell lung cancer - linked to asbestos. Mrs. Brewer suffers from mesothelioma, which she contracted from her dockyard worker father’s overalls. Mr. Northmore worked as a lagger at Devonport dockyards, taking asbestos lagging from pipes, between 1961 and 1966. Negotiations are still underway to determine the final payout. ASBESTOS LITIGATION: MP Brings Asbestos Campaign to Parliament ---------------------------------------------------------------- The support of Dr. Ian Gibson, Norwich North MP, has stepped up the campaign to end the compensation lottery in asbestos-related deaths, which sees bereaved families in Scotland entitled to tens of thousands of pounds more than those in England, Norwich Evening News 24 reports. The level of compensation is set at GBP10,000 in England and Wales. In Scotland, where compensation is decided by the courts, payments of up to GBP30,000 have been made to relatives. Dr. Gibson is one of a number of MPs to have signed an Early Day Motion in Parliament which urges the government to “act swiftly to ensure that those suffering from this deadly disease have the same rights in England and Wales as they do in Scotland.” Dr. Gibson has said it was appalling that “people who worked their fingers to the bone for this country” were suffering because of the type of work they did and urged the government to make compensation the same no matter where people lived. The EDM follows a campaign by Thompson's solicitors, which is demanding equality for families affected by asbestos-related diseases like mesothelioma. Ian McFall, head of asbestos policy at Thompson's, said, “Bereavement compensation for families of those who have died from mesothelioma should be equal no matter where you were exposed to asbestos in the UK.” ASBESTOS LITIGATION: Study Says Disease Affects Younger Patients ---------------------------------------------------------------- The Asbestos Disease Awareness Organization, in May 2007, released important new information regarding the age and gender of patients newly diagnosed with asbestos-related diseases like mesothelioma, asbestosis and lung cancer, according to a Weitz & Luxenberg, P.C. press release dated June 13, 2007. The results of case reports obtained over the past three years reflect a disturbing statistic: new asbestos disease patients are almost 20 years younger than the typical patient profile of nearly 20 years before. The typical new patient has a median age of 51, and half of these new patients are women. In addition, the ADAO collected anecdotal evidence indicating that new patients are presenting as young as their 40s and with no direct occupational exposure to asbestos. The last study, released by the Center for Disease Control in 1990, showed a typical patient was male, about 70 years old and worked in an occupation where he had daily exposure to asbestos-containing products. Jerry Kristal, an attorney in Weitz & Luxenberg’s Asbestos and Pharmaceutical Litigation Department, said, “The new findings from the ADAO are clear indications that those who had limited exposure to asbestos are at risk for developing an asbestos-related disease.” Mr. Kristal continued, “This risk from limited exposure was recognized many decades ago when reports of mesothelioma, from household exposures of spouses and children and neighborhood exposures from proximity to asbestos plants, appeared in the medical and scientific literature. We have represented many such asbestos victims and the current findings bear out the extent of the continuing asbestos disaster.” ASBESTOS LITIGATION: USG Corp. Establishes P.I. Settlement Trust ---------------------------------------------------------------- The U.S. Gypsum Corp. Asbestos Personal Injury Settlement Trust, in February 2007, began accepting claims for individuals who have been injured or who have the potential to become injured from exposure to asbestos in Company products, according to an eMediaWire press release dated June 13, 2007. The trust was formed under Chapter 11 of the U.S. Bankruptcy Code to handle asbestos related personal injury claims that USG is legally responsible for. Early, Ludwick, Sweeney and Strauss, a New Haven, Conn.-based law firm specializing in mesothelioma suits, is currently filing claims with the US Gypsum Company Trust on behalf of individuals who have been injured due to asbestos exposure. USG is most notably recognized for its manufacturing of gypsum-based products (i.e. sheetrock / drywall) and ceiling suspension systems that are primarily used in the construction trade. Between 1920 and 1978 some of the products produced by USG contained asbestos. Workers in the construction industry and other trades who worked with or in the vicinity of these products were at risk for developing asbestos related diseases like mesothelioma. This exposure risk occurred as a result of workers breathing in asbestos fibers that became suspended in the air during the building and construction process. As a result of this exposure, a significant number of lawsuits were brought against USG and the Company was forced to declare Chapter 11 bankruptcy in 2001 in an effort to thwart escalating litigation expenses. In 2006, the asbestos personal injury settlement trust was established as part of a Joint Plan of Reorganization for coming out of Chapter 11 Bankruptcy. For more information visit: http://www.usgasbestostrust.com. ASBESTOS LITIGATION: Dockhand’s Widow Gets GBP177T Compensation ---------------------------------------------------------------- In an out-of-court settlement, dock worker Billy Lee’s widow, Maureen, received GBP177,000 as compensation from Mr. Lee’s one-time employer, the Port of London Authority, which did not dispute liability, Newham Recorder 24 reports. Mr. Lee lived and worked around the London docks, supervising the movement and storage of incoming cargo that often included bags of asbestos, some of which would get damaged while being moved. Mr. Lee retired to when he was 60. However, in March 2004, he was diagnosed with mesothelioma. Nine months after, he was dead. Mrs. Lee’s case was handled by Pauline Chandler, one of the U.K.'s leading solicitors in industrial disease cases, from Manchester law firm Pannone LLP. Ms. Chandler said Mr. Lee, who lived in Canning Town, Millwall and East Ham, was exposed to asbestos as he walked around the docks. Sacks and bags of asbestos were regularly pierced by forklift trucks and the dust was released into the air. Unlike in many cases, the PLA did not prolong Mrs. Lee's legal fight by taking the claim all the way to court. ASBESTOS LITIGATION: Coroner Links Pensioner’s Death to Hazards ---------------------------------------------------------------- West Dorset Coroner Michael Johnston links the death of Anita Ford, a former wages manager, to asbestos, Wiltshire Times reports. Mrs. Ford died on Jan. 16, 2007, at the age of 70, at a Dorset County Hospital in Dorchester, U.K., as a result of malignant mesothelioma. The inquest was told that Mrs. Ford came into contact with asbestos powder, 40 years before when she worked for Avon Rubber plc in Bradford on Avon, which was originally called Spencer Moultons, then Avon Industrial Polymers Ltd. Mr. Johnston said Mrs. Ford she was taken into hospital on Jan. 13, 2007 after becoming dangerously short of breath and died three days later. Consultant pathologist, Mark Deverell, in a written statement, said the cause of death was massive blood clotting in Mrs. Ford’s lung due to the cancer. Mrs. Ford’s husband, Derek Thomas Quade, also worked for Avon Rubber on the factory floor, as did her parents and their son John and the inquest was told Mrs. Ford may also have come into contact with asbestos washing their clothes. Mr. Ford said the factory had since been demolished and he was told that 80 tons of asbestos was removed from the factory in pulling it down. Mr. Johnston recorded a verdict of death as a result of industrial disease. ASBESTOS LITIGATION: U.K. Inquest Links Worker’s Death to Hazard ---------------------------------------------------------------- An inquest heard that 66-year-old David Sykes, a retired factory worker, died 35 years after working with asbestos, Evening Courier reports. Mr. Sykes, of Cherry Court, Crossley Gardens, Pellon Lane, Halifax, contracted mesothelioma when he worked as an asbestos piece carrier and laborer at CWS Ltd. in Hebden Bridge from 1961 to 1971. In May 2006, Mr. Sykes started to complain of chest pains and was diagnosed with mesothelioma. Mr. Sykes’ wife, Norma, cared for him at home until he went into Overgate Hospice, Elland. Coroner Roger Whittaker returned a verdict of death by industrial disease. ASBESTOS LITIGATION: Teachers Told to Ensure Hazard-Free Schools ---------------------------------------------------------------- Delegates of The Educational Institute of Scotland, on June 7, 2007, were told that teaching staff must ensure schools are asbestos-free, The Scotsman reports. The body's 2007 Annual General Meeting heard the danger of asbestos in older schools and educational establishments was one that had to be addressed urgently. Kenneth Brown, of the East Dunbartonshire Association, said pupils and teachers were potentially being exposed to levels of asbestos fibers that exceeded government guidelines. Mr. Brown claimed vandalism and poor maintenance means concealed asbestos can suddenly become exposed. When inhaled, the fibers can lead to cancer. Mr. Brown stressed 13 people die from asbestos related cancer in the U.K. every year. Mr. Brown added teachers had to take it upon themselves to identify the risks. The delegates unanimously carried Mr. Brown’s motion instructing the ruling council to ensure all regulations relating to the monitoring and control of asbestos were implemented in schools. ASBESTOS LITIGATION: Grace Moves to OK Trumbull Claim Settlement ---------------------------------------------------------------- In September 2005, W.R. Grace and Co. and the other Debtors objected to thousands of asbestos-related property damage claims, including Claim No. 7028 filed by Trumbull Memorial Hospital, on various grounds. Trumbull Memorial responded to the Debtors' objection and thereafter, the parties engaged in extensive negotiations to resolve the Trumbull Claim. As a result of those negotiations, the parties entered into a settlement agreement, which provides a certain amount that will be deemed as the final liquidation of Claim No. 7028. The Settlement Amount was not disclosed in the parties' court filing. For voting purposes with respect to a plan of reorganization, Trumbull Memorial will be entitled to one vote and the amount of the Trumbull Claim for voting purposes will be equal to the Settlement Amount. In the event that (i) a reorganization plan ultimately confirmed by the Court does not provide Trumbull Memorial distribution on its claim equal to 100% of the Settlement Amount, or (ii) the Debtors' bankruptcy case is converted to a case under Chapter 7 of the Bankruptcy Code, Trumbull Memorial may void the Settlement Agreement and re-assert its Claim as presently filed. The Debtors also seek the Court's permission to maintain the confidentiality of the Settlement Amount. Timothy P. Cairns, Esq., at Pachulski Stang Ziehl Young Jones & Weintraub, P.C., in Wilmington, Del., asserts that given the current state of the PD Claims and the ongoing general public, disclosing the Settlement Amount would not be in the Debtors' best interest. Mr. Cairns relates that the Debtors will disclose the Settlement Amount to the Court in camera if requested. The Debtors will also disclose the Settlement Amount to the Official Committees appointed in the Debtors' cases and the Future Claims Representative. (W.R. Grace Bankruptcy News, Issue No. 131; Bankruptcy Creditors' Service, Inc., 215/945-7000) ASBESTOS LITIGATION: Mont. Plaintiffs Argue Stay of BNSF Action ---------------------------------------------------------------- Plaintiffs in litigation against the state of Montana and Burlington Northern Santa Fe Railway Co., represented by Cohn Whitesell & Goldberg, LLP, and Landis Rath & Cobb, LLP, contend that staying the Montana or the BNSF Litigation for any period of time without the opportunity for the Montana Plaintiffs to be heard would violate due process of law. The Montana Plaintiffs assert that it would be improper to stay the Litigations on the basis that there is a lack of jurisdiction, and that W.R. Grace & Co., the other Debtors, and Montana have scant likelihood of success on the merits given the strict standard for reconsideration motions and the thorough consideration of the merits already given by the Court. The Official Committee of Asbestos Personal Injury Claimants joins the Montana Plaintiffs' objection to the Court's order denying Montana's Lift Stay Motion. Lawyers representing the U.S. Department of Justice asked the appellate court panel of the 9th U.S. Court of Appeals to overturn the 2006 decision of the U.S. District Court for the District of Montana District Judge Donald Molloy banning the Department's use of documents, studies and testimony of expert witnesses relating to the Debtors' asbestos charges, Andrew Schneider, correspondent for the seattlepi.com, reports. Assistant U.S. Attorney Kris McLean from Montana and Todd Aagaard from the Department of Justice explained that Judge Molloy's rulings: -- forbid the Department from presenting facts and data that came from the Debtors' testing of its vermiculite products for asbestos, the Environmental Protection Agency's asbestos sampling in Libby, Montana, and the results of a peer-reviewed government study in which 7,300 people from Libby and surrounding Lincoln County were given chest X-rays and medical interviews; -- dismissed the most serious charges of multiple counts of “knowing endangerment;" and -- accepted the Debtors' contention that the U.S. Government has misidentified the specific type of asbestos in the Debtors' vermiculite. Christopher Landau, Esq., from Kirkland & Ellis, LLP, represented the Debtors at the hearing. Judge Judith Fitzgerald authorizes Montana to file a reply to the Debtors' response to the Motion to Reconsider the order denying Montana's lift stay request. Judge Fitzgerald also vacates the order denying Montana's lift stay request. Montana has withdrawn, without prejudice, its Lift Stay Motion. (W.R. Grace Bankruptcy News, Issue No. 131; Bankruptcy Creditors' Service, Inc., 215/945-7000) ********* 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, Ma. Cristina Canson, and Janice Mendoza, and Mary Grace Durana, Editors. Copyright 2007. 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 * * *