/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/070914.mbx C L A S S A C T I O N R E P O R T E R Friday, September 14, 2007, Vol. 9, No. 183 Headlines 9/11 LITIGATION: Firms Sued Over Cleanup Workers’ Low Wages ABRAXIS BIOSCIENCE: Firm Dismissed from Del. Suit Over Merger BP PRUDHOE: “Goldman” Suit Continues Against Other Defendants BRADLEY PHARMACEUTICALS: Mediation Fails to Resolve N.J. Lawsuit BRADLEY PHARMACEUTICALS: N.J. Suits Filed Over Founder’s Bid CALIFORNIA: Fresno Police Sued for “Discriminatory” Arrests CANADA: High Court Refuses to Hear Norbourg Suit Arguments CLEAR CHANNEL: No Hearing Dates Set for Merger-Related Lawsuits COBB ELECTRIC: EMC Members File Ga. Suit Over Financial Dealings COMMUNITY HEALTH: Oct. 12 Hearing Set for ADA Suit Settlement CONNECTICUT: To Spend $12M Improving DSS’ Service to Disabled COUNTRYWIDE FINANCIAL: Keller Rohrback Files 401(k) Suit in Cal. DIGIMEDIA.COM LP: Fla. Court Dismisses “Cybersquatting” Lawsuit DISCOVERY LABORATORIES: Nixing of Pa. Securities Suit Appealed DREW INDUSTRIES: Discovery Continues in Suit Over “Better Bath” DUKE ENERGY: Still Faces Katrina-Related Litigation in Miss. DUKE ENERGY: Price Indexing Suit Settlement Gets Final Approval DUKE ENERGY: March 2008 Trial Set for S.C. ERISA Violations Suit DYNAMICS RESEARCH: Appeals Ruling in Mass. Employee Litigation DYNEGY POWER: Seeks Dismissal of Ill. Procurement Auction Suits FOREST OIL: Court Mulls Plaintiff's Dismissal Bid in Merger Suit ILLINOIS: Department of Revenue Faces Suit Over “529” Tax Breaks MERCK & CO: Nixed Local 68 Vioxx Suit to Go Ahead in State Court QVC: Recalls Convection Ovens with Wires that can Overheat SHAKE COMPANY: Settles Suits Over Faulty Cal-Shake Roofs for $3M UNITED ARAB EMIRATES: Officials Face Ky. Child Trafficking Suit Asbestos Alerts ASBESTOS LITIGATION: Met-Pro Records 36 Pending Cases at July 31 ASBESTOS LITIGATION: Casella Still Works w/ N.H. AG on Disposal ASBESTOS LITIGATION: Nov. 2007 Hearings Set for ASARCO Liability ASBESTOS LITIGATION: U.K. Widow Seeks GBP300,000 in Compensation ASBESTOS LITIGATION: Inquest Links Secretary’s Death to Hazards ASBESTOS LITIGATION: Oil Handler Sues Sabine Towing for Exposure ASBESTOS LITIGATION: Maine Indicts Hallowell for Removal Breach ASBESTOS LITIGATION: U.K. Widow Seeks GBP200,000 in Compensation ASBESTOS LITIGATION: Court Flips Ruling to Favor Georgia-Pacific ASBESTOS LITIGATION: Court OKs Board Ruling in Torchiano Action ASBESTOS LITIGATION: Corning Inc. Expends $380,000 for Lobbying ASBESTOS LITIGATION: Probe Finds No Evidence of Illegal Dumping ASBESTOS LITIGATION: Abatement Probe in Calif. Station Continues ASBESTOS LITIGATION: Case Filed v. ConEd on Manhattan Explosion ASBESTOS LITIGATION: Removal Forces Postponement of School Event ASBESTOS LITIGATION: EPA Scientists Check Ill. Beach for Hazards ASBESTOS LITIGATION: Court Affirms Appeal in Plaintiff’s Favor ASBESTOS LITIGATION: Supreme Court Reverses Ruling v. Defendants ASBESTOS LITIGATION: Court OKs Ruling in Favor of Quality, Econ ASBESTOS LITIGATION: Court Upholds Ruling in John Crane’s Favor ASBESTOS LITIGATION: Indian Court OKs Dismantling of Cruise Ship ASBESTOS LITIGATION: N.H. Firms to Pay $90T for Removal Breaches ASBESTOS LITIGATION: Inquest Relates Engineer’s Death to Hazards ASBESTOS LITIGATION: No Asbestos Found in Virgin Islands School ASBESTOS LITIGATION: Trial to Test Drug’s Effect on Mesothelioma ASBESTOS LITIGATION: Asbestos Found in Areas of Binghamton Univ. ASBESTOS LITIGATION: Court Affirms THAN’s Summary Judgment Move ASBESTOS LITIGATION: Court Affirms ACL’s Summary Judgment Motion ASBESTOS LITIGATION: Int’l. Experts Urge Global Ban on Asbestos ASBESTOS LITIGATION: Iowa DNR Review Clears City in Hazard Probe ASBESTOS LITIGATION: U.K. Mechanic Seeks GBP200T in Compensation ASBESTOS LITIGATION: Crew Claims Exposure at Staten Borough Hall ASBESTOS LITIGATION: Hazard Delays Start of Term in U.K. School ASBESTOS LITIGATION: Boston Manhole Explosion Could Pose Hazards ASBESTOS LITIGATION: Indiana Court Favors THAN in Nevius Action ASBESTOS LITIGATION: Court Reverses Ruling in Sun Chem.’s Favor ASBESTOS LITIGATION: MassDEP Issues $13T Penalty to 2 Companies ASBESTOS ALERT: Ind. Court Affirms DAP’s Summary Judgment Motion New Securities Fraud Cases ZIEMAN MANUFACTURING: Settles Suits Over Toy Hauler Trailers FREMONT GENERAL: Susman Godfrey, Kahn Gauthier File Lawsuit JONES SODA: Scott+Scott Files Securities Fraud Suit in Wash. LUMINENT MORTGAGE: Berger & Montague Files Securities Suit ********* 9/11 LITIGATION: Firms Sued Over Cleanup Workers’ Low Wages ----------------------------------------------------------- Several companies that relied on thousands of low-wage workers to clean World Trade Center-area buildings after the Sept. 11, 2001 terrorist attacks in New York are facing a purported class action that accuses them of violating state labor laws as they generated record profits. The case, “Lucelly Gil, et al., v. Maxons Restorations, Inc., et al.” (Index No. 07603048) was filed in the Supreme Court of the State of New York, County of New York. The defendants include: -- Maxons Restorations, Inc.; -- Branch Construction Co., Inc.; -- Crystal Restoration Enterprises, Inc.; -- Milro Services, Inc.; and -- Milro Associates, Inc. Plaintiffs in the matter are: -- Lucelly Gil, -- Flor Duque, -- Blanca Duque, -- Ines Pelaez, -- Alberto Melo, -- Julian Fernandez, -- William Hernandez, -- Lucia Rodriguez, and -- Miriam Rodriguez. They are seeking to recover unpaid overtime pay and other wages allegedly earned by workers who risked their health and safety to perform heavy cleaning work in offices, stores, hospitals, churches, apartments, and other public and private buildings near Ground Zero. According to the Complaint, "Defendants profited handsomely from these clean- up jobs. Despite their new profits and cash surpluses, Defendants failed at one of their most basic obligations -- to pay their workers properly." The Complaint further alleges that some of the Defendants "subcontracted" Ground Zero clean-up work to smaller companies, intending to hide behind the smaller companies if the workers attempted to enforce their legal rights. Ms. Gil of Queens, New York, said, "We risked our health and worked very hard to help restore Lower Manhattan after 9/11. These companies took advantage of this tragedy to enrich themselves at our expense. We are demanding justice." The workers are represented by Outten & Golden LLP, of New York; Emery Celli Brinckherhoff & Abady LLP, of New York; and The Legal Aid Society of New York. The legal team will seek to have the case certified as a class action that includes all persons who were employed and/or jointly employed by one or more of Defendants as cleaning workers in Lower Manhattan during the year after Sept. 11, 2001. Attorney Justin M. Swartz, of Outten & Golden LLP, said, "Some of these companies saw significant profits and cash surpluses because of the post-9/11 work. They owe this success largely to our clients and their co-workers who put themselves in harm's way to help get New York City back on its feet. Other employers complied with the labor laws in perhaps the most difficult period in our city's history, and these Defendants should have done so as well." Attorney Mariann Meier Wang, of Emery Celli Brinckherhoff & Abady LLP, said, "Our clients tirelessly worked in and around Ground Zero, and helped New York City begin to recover. These companies should be ashamed. They were already profiting enormously from the critical labor performed by these workers at a trying time, but then violated their legal rights so they could profit even more." The litigation evolved from the work of New York-based National Mobilization Against Sweat Shops (NMASS). NMASS works with the Beyond Ground Zero Network to address the severe health and economic impact of the 9/11 disaster on workers and residents, especially Lower Manhattan's low-income and immigrant communities. Attorney Hollis Pfitsch, a Skadden Fellow at The Legal Aid Society of New York, said, "In working with the Beyond Ground Zero Network, we realized that the same workers who had sacrificed their health to clean up Lower Manhattan had also been robbed of wages." For more details, contact: Justin M. Swartz, Esq. Mark Humowiecki, Esq. Outten & Golden LLP Phone: (212) 245-1000 Web site: http://www.outtengolden.com Mariann Meier Wang, Esq. Emery Celli Brinckherhoff & Abady LLP Phone: (212) 763-5000 Web site: http://www.ecbalaw.com - and - Hollis Pfitsch The Legal Aid Society of New York Phone: 212-577-3465 Web site: http://www.legal-aid.org ABRAXIS BIOSCIENCE: Firm Dismissed from Del. Suit Over Merger ------------------------------------------------------------- An action that was originally filed against Abraxis BioScience, Inc. (ABI), formerly American Pharmaceutical Partners Inc., in relation to the company's merger with American BioScience, Inc., is now proceeding as a putative class action solely against the individual defendants. On or about Dec. 7, 2005, several stockholder derivative and class actions were filed against the company, its directors and ABI in the Delaware Court of Chancery relating to the merger. The company is a nominal defendant in the stockholder derivative actions. The lawsuits allege that the company's directors breached their fiduciary duties to stockholders by causing the company to enter into the merger agreement and for not providing full and fair disclosure to stockholders regarding the recently completed merger, which it is alleged caused the value of the shares held by the company's public stockholders to be significantly diminished. They seek, among other things, an unspecified amount of damages and the recession of the merger. On April 18, 2006, Abraxis BioScience completed the merger with American BioScience, Inc., pursuant to the terms of an Agreement and Plan of Merger dated Nov. 27, 2005. The company has moved to dismiss the derivative claims filed on its behalf, and certain of the director defendants have moved to dismiss some of the claims alleged against them. In May 2007, the plaintiffs voluntarily dismissed the derivative and unjust enrichment claims, and the action is proceeding as a putative class action solely against the individual defendants, according to the company's Aug. 9, 2007 Form 10-Q Filing with the U.S. Securities Exchange Commission for the quarterly period ended June 30, 2007. Abraxis BioScience, Inc. -- http://www.abraxisbio.com/-- formerly American Pharmaceutical Partners, Inc. is a biopharmaceutical company that develops, manufactures and markets injectable pharmaceutical products. It manufactures products in each of the three basic forms, in which injectable products are sold: liquid, powder and lyophilized, or freeze-dried. The Company has two business segments: Abraxis BioScience, representing the combined operations of Abraxis Oncology and Abraxis Research, and Abraxis Pharmaceutical Products, representing the hospital-based operations. ABI focuses primarily on its internally developed products, including Abraxane. APP manufactures and markets a portfolio of injectable drugs, including oncology, critical care, anti-infectives, and markets the products it acquired from AstraZeneca. BP PRUDHOE: “Goldman” Suit Continues Against Other Defendants ------------------------------------------------------------- Plaintiffs in the purported class action, “Michael Goldman v. BP plc, et al., Case No. 3:06-CV-00260 TMB,” have voluntarily dismissed their case against BP Prudhoe Bay Royalty Trust, but the case continues to against other defendants related to the trust. The complaint filed on Nov. 7, 2006 purportedly as a class action by the plaintiff, Michael Goldman, on behalf of the public holders of Units in the Trust, against BP plc, the Trust, BP Exploration (Alaska) Inc. (BP Alaska), The Standard Oil Co. and other unnamed defendants. On April 26, 2007 the plaintiff filed a notice with the Court of the voluntary dismissal, without prejudice, of the Trust from the suit. The action continues against the defendants BP, BP Alaska and Standard Oil. The Trust reported no new development in the matter in its Aug. 9, 2007 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2007. BRADLEY PHARMACEUTICALS: Mediation Fails to Resolve N.J. Lawsuit ---------------------------------------------------------------- A June 13, 2007 mediation session failed to produce a resolution for the securities fraud class action filed against Bradley Pharmaceuticals, Inc. in the U.S. District Court of New Jersey. Initially, the company, along with certain of its officers and directors, were named defendants in 13 federal securities class actions that were consolidated on May 5, 2005 in the U.S. District Court of New Jersey. In the amended consolidated complaint, filed on June 20, 2005, the plaintiffs allege violations of Sections 10(b) and 20(a) of the U.S. Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder, arising out of disclosures that plaintiffs allege were materially false and misleading. Plaintiffs also allege that the company and the individual defendants falsely recognized revenue. Plaintiffs sought an unspecified amount of compensatory damages in an amount to be proven at trial. The company and the individual defendants filed their initial response on July 20, 2005 seeking to dismiss the amended consolidated complaint in its entirety with prejudice. On March 23, 2006, the Court issued an order denying the Company’s motion to dismiss the federal securities class action lawsuit. Pursuant to a June 28, 2006 Scheduling Conference with the Court and the Court’s Pretrial Scheduling Order of that date, discovery in the federal securities class action lawsuit has begun. Plaintiffs filed a motion for class certification on Jan. 15, 2007. Defendants filed their response on April 2, 2007. On April 23, 2007, the court issued an order staying further deadlines in this matter pending the completion of mediation between the parties. The mediation was held on June 13, 2007, but a resolution has not been reached, according to the company’s Aug. 9, 2007 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2007. The suit is "Esposito v. Bradley Pharmaceuticals, Inc. et al.," filed in the U.S. District Court for the District of New Jersey under Judge Faith S. Hochberg with referral to Judge Patty Shwartz. Representing the plaintiffs is: Joseph J. Depalma, Esq. Lite, Depalma, Greenberg & Rivas, LLC Two Gateway Center, 12th Floor Newark, NJ 07102-5003 Phone: (973) 623-3000 E-mail: jdepalma@ldgrlaw.com Representing the defendant is: James P. Flynn of Epstein, Esq. Becker & Green, PC Two Gateway Center, 12th Floor Newark, NJ 07102-5003 Phone: (973) 642-1900 E-mail: jflynn@ebglaw.com BRADLEY PHARMACEUTICALS: N.J. Suits Filed Over Founder’s Bid ------------------------------------------------------------ Bradley Pharmaceuticals, Inc. reports that five complaints have been filed in connection with Daniel Glassman’s May 29, 2007 public announcement disclosing his intent to propose an acquisition of the Company’s outstanding shares. Mr. Glassman is the founder, president and chief executive of the Company and the holder of nearly all of the Company’s Class B common stock. The complaints allege that the genesis and consideration of this proposal are breaches of the Board of Directors’ fiduciary duties and that the proposed transaction does not meet the entire fairness standard. The complaints seek, among other relief, to enjoin defendants from further breaching their fiduciary duties and from consummating the proposal. Four of those complaints are styled as class actions and were filed in the Law or Chancery divisions in New Jersey state court. The fifth complaint is styled as both a class and derivative action and was filed in the U.S. District Court of New Jersey. Upon agreement of the parties, an order was entered in the federal action extending defendants’ time to respond until Sept. 10, 2007. On July 26, 2007, the parties in the state actions filed a stipulation requesting an order: -- consolidating the actions into one action in the Chancery Division and appointing lead counsel, and -- declaring that defendants do not need to respond to the state court complaints hereto filed. Bradley Pharmaceuticals, Inc. -- http://www.bradpharm.com/-- is a specialty pharmaceutical company that acquires, develops and markets prescription and over-the-counter products in niche therapeutic markets, including dermatology, podiatry, gastroenterology and women’s health. CALIFORNIA: Fresno Police Sued for “Discriminatory” Arrests ------------------------------------------------------------ Fresno County Sheriff’s Department is facing a complaint alleging violation of the Racketeer Influenced Corrupt Organization Act in relation to unlawful arrests of men meeting other men in public, Dan Waterhouse of Bay Area Indymedia reports. Plaintiff Bruce Nickerson, a Bay Area attorney, filed the suit on behalf of Martin Coldwell and another man, identified in the complaint as “Doe 1.” The suit was filed in federal District Court in Fresno in August. Defendants are the County of Fresno, former Sheriff Richard Pierce, and five deputy sheriffs. Police officers allegedly pose as undercover agents to gather information about people targeted for arrests. Plaintiffs say those arrested were targeted for their gender and perceived sexual orientation. The arrests were even publicized. Plaintiffs further allege that the pattern of racketeering activities, involve completing and filing false police reports, tampering with witnesses and victims and retaliating against witnesses and victims. They also allege that “the police officer defendants repeatedly, arbitrarily, unlawfully, and maliciously made false arrests of plaintiffs and said class members and violated” their “right to freedom of speech, expression, association, and their right to equal protection under the law.” According to Mr. Nickerson, Mr. Coldwell was arrested for allegedly making sexual requests. All charges against Coldwell were dismissed on August 8, 2006. The plaintiffs seek to represent hundreds of men who have been allegedly illegally arrested. They are asking for: -- a declaratory judgment that the Sheriff’s Department actions violate the U.S. Constitution; -- a permanent injunction barring the Sheriff’s Department from “targeting, harassing, and/or arresting men” for seeking sex in public and barring the department from enforcing laws in a discriminatory manner against these men; and -- compensatory damages and triple damages under RICO. CANADA: High Court Refuses to Hear Norbourg Suit Arguments ---------------------------------------------------------- The Supreme Court of Canada refused to review a dismissal of a suit filed against Quebec's securities regulator in relation to the collapse of mutual fund company Norbourg Asset Management Inc., reports say. No written reasons were given for the refusal, according to the report. The suit was filed by Francis Rosso, an investment advisor who sold Norbourg funds. He alleged that L'Autorite des marches financiers (AMF) failed to detect problems at the company before its collapse. A lower court has rejected the argument. Quebec's market watchdog argued that the suit had no merit because advisors who sold Norbourg's 30 funds to clients lost nothing and, in fact, made money on the sales, according to Peter Brieger of Financial Post. The AMF shut down Norbourg in 2005 over allegations of some $115 million in illegal fund transfers to accounts of Norbourg founder Vincent Lacroix during a five-year period. Mr. Lacroix was charged with 51 securities violations. He is facing 27 counts of manipulating the price of mutual fund units and 24 counts of providing the regulator with false financial statements. A trial on the suit against him restarted just recently. A separate $130 million class action in relation to the Norbourg collapse is going ahead. It was authorized last November in Quebec Superior Court with Wilhelm Pellemans of Morin Heights acting as the lead plaintiff for the 9,200 fellow Norbourg investors, according to The Gazette. Mr. Rosso’s lawyer is: Gilles Gareau, L.L.B., C.G.A. 1000 Sherbrooke Ouest, Suite 1530, Montreal, Quebec H3A 3G4 Phone: (514) 848-9363 Fax: (514) 848-0319 E-mail: gareaug@adamsgareau.com CLEAR CHANNEL: No Hearing Dates Set for Merger-Related Lawsuits --------------------------------------------------------------- No hearing dates were scheduled for several lawsuits against Clear Channel Communications, Inc. in relation to its merger agreement with BT Triple Crown companies. The company had entered into an agreement and plan of merger with BT Triple Crown Merger Co., Inc., B Triple Crown Finco, LLC, and T Triple Crown Finco, LLC. Initially, eight putative class actions were filed in the District Court of Bexar County, Texas, in 2006 in connection with the merger. Of the eight, three have been voluntarily dismissed and five are still pending. The remaining putative class actions were consolidated into one proceeding and all raise substantially similar allegations on behalf of a purported class of its shareholders against the defendants for breaches of fiduciary duty in connection with the approval of the merger. The suits are: -- “Teitelbaum v. Clear Channel Communications, Inc., et al., No. 2006CI17492,” (filed Nov. 14, 2006), -- “City of St. Clair Shores Police and Fire Retirement System v. Clear Channel Communications, Inc., et al., No. 2006CI17660,” (filed Nov. 16, 2006), -- “Levy Investments, Ltd. v. Clear Channel Communications, Inc., et al., No. 2006CI17669,” (filed Nov. 16, 2006), -- “DD Equity Partners LLC v. Clear Channel Communications, Inc., et al., No. 2006CI7914,” (filed Nov. 22, 2006), and -- “Pioneer Investments Kapitalanlagegesellschaft MBH v. L. Lowry Mays, et al.,” (filed Dec. 7, 2006). Plaintiffs in these consolidated class actions have sought and withdrawn court dates for a hearing on a motion to temporarily enjoin the shareholder vote. No hearing is currently scheduled. Three other lawsuits filed in connection with the merger are also still pending: -- “Rauch v. Clear Channel Communications, Inc., et al., Case No. 2006-CI17436,” (filed Nov. 14, 2006), -- “Pioneer Investments Kapitalanlagegesellschaft mbH v. Clear Channel Communications, Inc., et al.,” (filed Jan. 30, 2007 in the U.S. District Court for the Western District of Texas), and -- “Alaska Laborers Employees Retirement Fund v. Clear Channel Communications, Inc., et. al., Case No. SA-07- CA-0042” (filed Jan. 11, 2007). These lawsuits raise substantially similar allegations to those found in the pleadings of the consolidated class actions, and the plaintiffs have previously asked the courts in which the cases are pending to schedule hearings on motions to temporarily enjoin the shareholder vote. No hearing dates are scheduled. San Antonio, Texas-based Clear Channel Communications, Inc. -- http://www.clearchannel.com/-- is a diversified media company with four segments: radio broadcasting; Americas outdoor advertising; international outdoor advertising, and other, which contributed 52%, 19%, 22% and 7%, respectively, of the Company’s total revenue, during the year ended Dec. 31, 2006. The Company owns 1,176 radio stations and a national radio network operating in the U.S., and also owns or operates approximately 195,000 Americas outdoor advertising display faces and approximately 717,000 international outdoor advertising display faces. In addition it had equity interests in various international radio broadcasting companies. COBB ELECTRIC: EMC Members File Ga. Suit Over Financial Dealings ---------------------------------------------------------------- Cobb Electric Membership Corp., Cobb Energy Management, and Dwight D. Brown are facing a purported class action in a Georgia state court that accuses them of squandering, mismanaging and converting the resources of Cobb EMC, Steve Visser of The Atlanta Journal-Constitution reports. Cobb EMC is a cooperative whose customers are its members and is largely unregulated by the state. Dwight Brown, as CEO of Cobb EMC, set up a private for-profit company, Cobb Energy Management, which Mr. Brown also runs. The for-profit performs services for the co-op, according to the lawsuit. Sims and John M. Maddox, both Cobb EMB members, who are represented by attorney Adam Webb filed the lawsuit. They are charging that Mr. Brown and other defendants are siphoning off the co-op's funds to benefit the for- profit that they control. The lawsuit contends that Mr. Brown is a major shareholder in Cobb Energy, that co-op board members own stock in Cobb Energy, and that Cobb Energy has given stock as Christmas presents to employees. Mr. Webb told The Atlanta Journal-Constitution that plaintiffs want a Cobb County court to authorize a class action of co-op members to force the two companies and Mr. Brown to reveal their financial dealings, as well as the financial relationships between Cobb Energy and co-op executives. Plaintiffs, says Mr. Webb, also want to know how much Cobb Energy gets paid for operating the co-op through a management agreement and Brown's compensation as the Cobb Energy CEO, who according to tax reports made almost $336,000 as the co-op's CEO in 2005. Co-op members own their EMCs by investing in them every month when they pay their bills. The suit contends that Georgia nonprofit cooperatives refund an average of $16 million a year to members, but Cobb EMC has not returned any money to members in three decades. Co-op officials, however, have said that they have passed through $33 million in cost savings even if it did not return members' invested capital. The co- op says the $33 million came from wholesale energy savings since 1996. In general the lawsuit states "Mr. Brown engaged in activities that sought to maximize his own profits at the cost of plaintiffs and members of the proposed class," It adds, "Mr. Brown and other officers .... have personally and secretly profited or derived an unfair or unreasonable advantage by reason of their official and corporate positions." For more details, contact: E. Adam Webb, Esq. The Webb Law Group, L.L.C. 1900 The Exchange, N.E., Suite 480 Atlanta, Georgia 30339 Phone: (770) 444-9325 Fax: (770) 444-0271 E-mail: contact@webbllc.com Web site: http://webbporter.com COMMUNITY HEALTH: Oct. 12 Hearing Set for ADA Suit Settlement ------------------------------------------------------------ An Oct. 12, 2007 hearing is set for a proposed settlement in a class action alleging violations of the Americans with Disabilities Act against Northwest Medical Center, a unit of Community Health Systems, Inc., Dan Stebbins of The Explorer News reports. The suit was originally filed in 2003 against Triad Hospitals, Inc., which owned Northwest at the time. Community Health purchased Triad Hospitals recently. Generally, the case involves physical access barriers at Northwest’s Oro Valley facilities on North La Cholla Boulevard and on East Tangerine Street. It was filed by plaintiffs with an advocacy group known as Access Now, represented by the Miami, Fla., law firm, de la O, Marko, Magolnick & Leyton, P.A. The settlement, if approved, means approximately 280 upgrades at Northwest facilities in order to bring it into compliance with the ADA, according to John Bosco, the attorney representing Community Health. Mr. Bosco of the Dallas, Texas law firm of Baker & McKenzie, told The Explorer News that upgrades at Northwest would include installation of grab bars in restrooms, Braile room signage, adjustment of drinking fountain heights, coat-hook height adjustments and installation of new door knobs for easier grasping and turning. He also told The Explorer, “It was an amicable resolution. Both sides want to make the facilities accessible.” The settlement was reached after engineers and attorneys for both sides spent two days inspecting Northwest’s buildings with a focus on ADA issues, according to Mr. Basco. The settlement the court will review on Oct. 12, 2007, also concerns approximately 40 facilities originally owned by Triad and now owned by Community Health. The settlement is expected to be approved. For more details, contact: de la O, Marko, Magolnick & Leyton, P.A. 3001 S.W. 3rd Avenue Miami, FL 33129 Phone: 305-285-2000 or 888-893-5723 TTY: 305-854-0256 Fax: 305-285-5555 Web site: http://www.dmmllaw.com/ - and - John Bosco, Esq. Baker & McKenzie, LLP 2300 Trammell Crow Center, 2001 Ross Avenue Dallas, TX 75201 Phone: (214) 978-3000 Fax: (214) 978-3099 E-mail: john.d.bosco@bakernet.com Web site: http://www.bakernet.com CONNECTICUT: To Spend $12M Improving DSS’ Service to Disabled ------------------------------------------------------------- U.S. District Judge Mark R. Kravitz approved a plan requiring the Department of Social Services to spend nearly $12 million in making its services more accessible to more than 300,000 disabled clients, the Connecticut Post (Bridgeport) reports. The suit was brought in January 2003 after DSS began shutting down its satellite offices in such places as Ansonia and Norwalk and laying off employees, making transactions for disabled difficult. It sought modifications and improvements under the Americans with Disabilities Act and the Rehabilitation Act of 1972. The suit was granted class-action status. It was brought on behalf of the state’s mentally and physically impaired and backed by Connecticut Legal Services and the New Haven Legal Assistance and the Greater Hartford Legal Aid Society. According to the report, the settlement includes: -- requiring DSS workers to inform the disabled that they are eligible for accommodations and may receive help in completing applications and obtaining medical documentation; -- allowing DSS workers make accommodations for the disabled without receiving a supervisor's approval; -- having DSS staff trained in recognizing disabilities and providing the necessary accommodations; -- requiring DSS to upgrade its telephone and computer systems. The telephone systems will be equipped with automated answers to common questions. The computer systems will be modified within 18 months to contain alerts to employees of a client's disability and necessary accommodation; -- having DSS refurbish its offices to include more signage, safer floor surfaces and private interview and hearing rooms; -- hiring additional staff; and -- requiring DSS to incorporate the changes in its regulations handbook. Judge Kravitz will oversee the process for the next six years. The settlement requires the state to pay $35,000 to the plaintiffs' lawyers. COUNTRYWIDE FINANCIAL: Keller Rohrback Files 401(k) Suit in Cal. ---------------------------------------------------------------- Keller Rohrback L.L.P. filed a class action complaint in the U.S. District Court for Central District of California on behalf of the participants and beneficiaries of the Countrywide Financial Corp. 401(k) Savings and Investment Plan. The Complaint was filed against Countrywide Financial Corp. and various defendants. According to Lynn Sarko, who represents the plaintiff: "Employees once again pay the price for a company that poured retirement assets into company stock even while the company's financial situation deteriorated and the stock collapsed. It's remarkable that companies continue to breach their responsibilities this way post-Enron." The complaint alleges that Countrywide and the various defendants breached their fiduciary duties owed to Plan participants by: -- failing to prudently and loyally manage the Plan's assets; -- failing to provide participants with complete, accurate and material information concerning the problems with Countrywide's business and financial condition necessary for participants to make informed decisions concerning the prudence of directing the Plan to invest in the stock fund; and -- failing to appoint and monitor the performance of the other fiduciaries. For more information, contact: Jennifer Tuato'o Derek Loeser, Esq. Lynn Sarko, Esq. Keller Rohrback L.L.P. Web site: http://www.erisafraud.com Toll Free: 800/776-6044 E-mail: investor@kellerrohrback.com DIGIMEDIA.COM LP: Fla. Court Dismisses “Cybersquatting” Lawsuit --------------------------------------------------------------- The U.S. District Court for the Middle District of Florida granted a motion that sought for the dismissal of a purported “cybersquatting” class action against: * Digimedia.com L.P.; * Cyberfusion.com L.P.; * HappyDays, Inc.; and * Scott Day. The suit involves claims of cybersquatting under the Anti-Cybersquatting Consumer Protection Act. It also involved claims of trademark infringement and unfair competition under the Lanham Act, the federal trademark statute. Commenting on the legal victory, Gregory W. Herbert of Greenberg Traurig, who represented the defendants, said “In this case, Oklahoma- and Texas-based companies were sued in Florida, in part, simply because a number of their registered domain names included the names of Florida cities, and those websites had Florida-related content on them. The court rejected this as a basis to force them to defend this suit in Florida. This is one of the only reported cases specifically dismissing claims based on the use of geographic terms in domain names. This confirms the trend of limiting the reach of personal jurisdiction based solely or primarily upon Internet activity.” Mr. Herbert also said, “The theories that formed the heart of the case -- basing a cybersquatting claim on the use of a ‘wildcard’ search function -- were unusual and novel. There really was no law on that subject yet, and thus the core claims Plaintiff sued on were unsupported by any existing case law.” Wildcard search functionality is widely used by Internet-based and domain name companies. Thus a finding of liability in the case could have posed a serious risk of future claims, including broad class-action claims, for any company using Wildcard DNS or other wildcard-type search functions, according to Mr. Herbert. He explains “This is what judges call a 'case of first impression,' because the ACPA has never been applied to a Wildcard search function before to our knowledge.” The suit is “Goforit Entertainment LLC v. Digimedia.Com L.P. et al., Case No. 6:06-cv-00816-JA-KRS,” filed in the U.S. District Court for the Middle District of Florida under Judge John Antoon II with referral to Judge Karla R. Spaulding. Representing the plaintiffs is: Douglas L. Bridges, Esq. Alston & Bird, LLP 1201 W Peachtree St. Atlanta, GA 30309-3424 Phone: 404/881-7000 Fax: 404/881-7777 Representing the defendants is: Gregory W. Herbert, Esq. Greenberg Traurig, P.A. 450 S. Orange Ave., Suite 650, P.O. Box 4923 Orlando, FL 32802-4923 Phone: 407/420-1000 Ext 431 Fax: 407/841-1295 E-mail: herbertg@gtlaw.com DISCOVERY LABORATORIES: Nixing of Pa. Securities Suit Appealed -------------------------------------------------------------- The U.S. District Court for the Eastern District of Pennsylvania has yet to rule on a motion appealing the dismissal of a second consolidated amended complaint in a securities fraud class action filed against Discovery Laboratories, Inc. On May 1, 2006, Hal Unschuld filed an action in the U.S. District Court for the Eastern District of Pennsylvania, individually and purportedly on behalf of a class of the company's investors who purchased its publicly traded securities between Dec. 28, 2005 and April 25, 2006 (Class Action Reporter, June 15, 2006). The suit was filed against the company and company Chief Executive Officer Robert J. Capetola. This action alleges violations of Section 10(b) of the U.S. Securities Exchange Act of 1934, Rule 10b-5 promulgated thereunder and Section 20(a) of the Exchange Act in connection with various public statements made by the company. Plaintiff sought an order wherein the suit may proceed as a class action and an award of compensatory damages in favor of the plaintiff and the other class members in an unspecified amount, together with interest and reimbursement of costs and expenses of the litigation and other equitable or injunctive relief. The company was notified that two additional class actions seeking the same relief have since been filed in the U.S. District Court for the Eastern District of Pennsylvania, although the company has not been served with a complaint in these actions. On July 25, 2006, the U.S. District Court for the Eastern District of Pennsylvania issued an order appointing the Mizla Group, as lead plaintiff in "In re Discovery Laboratories Securities Litigation, No. 06-1820 (SD)." The court also approved the appointment of Chimicles & Tikellis LLP as lead counsel. The court directed that a consolidated amended complaint be filed, and on Aug. 10, 2006, the company filed the consolidated amended complaint. On Sept. 14, 2006, the defendants filed a motion to dismiss the consolidated amended complaint, and, in an order dated Nov. 1, 2006, the district court granted that motion while giving plaintiffs leave to file an amended complaint. On Nov. 30, 2006, the second consolidated amended complaint was filed against the company, its Chief Executive Officer, Robert J. Capetola, and its former Chief Operating Officer, Christopher J. Schaber. It sought an order that the action proceed as a class action and an award of compensatory damages in favor of the plaintiffs and the other class members in an unspecified amount, together with interest and reimbursement of costs and expenses of the litigation and other equitable or injunctive relief. On March 19, 2007, the court granted the company's motion to dismiss the second consolidated amended complaint. On April 10, 2007, plaintiffs filed a Notice of Appeal with the U.S. District Court for the Eastern District of Pennsylvania. Plaintiffs filed an opening brief on July 2, 2007 and defendants filed their opening brief on Aug. 6, 2007, according to the company's Aug. 9, 2007 Form 10-Q Filing with the U.S. Securities Exchange Commission for the quarterly period ended June 30, 2007. The suit is "In re Discovery Laboratories Securities Litigation, Case No. 2:06-cv-01820-SD," filed in the U.S. District Court for the Eastern District of Pennsylvania under Judge Stewart Dalzell. Representing plaintiffs are: James R. Malone, Esq. Joseph G. Sauder, Esq. Chimicles & Tikellis LLP 361 West Lancaster Avenue Haverford, PA 19401 Phone: 610-642-8500 E-mail: jamesmalone@chimicles.com josephsauder@chimicles.com Representing defendants are: Michelle M. Crimaldi, Esq. Robert L. Hickok, Esq. Christopher J. Huber, Esq. Gay Barlow Parks Rainville, Esq. Pepper Hamilton LLP 3000 Two Logan Square, 18th and Arch Streets Philadelphia, PA 19103-2799 Phone: 215-981-4000 or 215-981-4583 or 215-981-4446 Fax: 215-981-4750 E-mail: crimaldim@pepperlaw.com hickokr@pepperlaw.com huberc@pepperlaw.com rainvilleg@pepperlaw.com DREW INDUSTRIES: Discovery Continues in Suit Over “Better Bath” --------------------------------------------------------------- Discovery is continuing in a purported class action pending in the U.S. District Court for the Central District of California against Drew Industries, Inc., and several of its subsidiaries. On or about Jan. 3, 2007, an action was by Victoria Gonzalez against: * Drew Industries Inc., * Kinro, Inc., * Kinro Texas Limited Partnership d/b/a Better Bath Components; * Skyline Corp., and * Skylines Homes, Inc. The case purports to be a class action on behalf of the named plaintiff and all others similarly situated. Plaintiffs allege that certain bathtubs manufactured by Kinro Texas Limited Partnership, a subsidiary of Kinro, Inc., and sold under the name “Better Bath” for use in manufactured homes, fail to comply with certain safety standards relating to fire spread control established by the U.S. Department of Housing and Urban Development. Plaintiff alleges that sale of these products is in violation of various provisions of the California Consumers Legal Remedies Act (Sec. 1770 et seq.), the Magnuson-Moss Warranty Act (Sec. 2301 et seq.), and the California Song-Beverly Consumer Warranty Act (Sec. 1790 et seq.). Plaintiffs seek to require defendants to notify members of the class of the allegations in the proceeding and the claims made, to repair or replace the allegedly defective products, to reimburse members of the class for repair, replacement and consequential costs, to cease the sale and distribution of the allegedly defective products, and to pay actual and punitive damages and plaintiffs’ attorneys fees. Defendant Kinro has conducted a comprehensive investigation of the allegations made in connection with the claims, including with respect to the HUD safety standards, prior test results, testing procedures, and the use of labels. In addition, multiple tests were recently conducted by independent laboratories at Kinro’s initiative. Discovery by plaintiff and by Kinro is continuing, according to the company's Aug. 9, 2007 Form 10-Q Filing with the U.S. Securities Exchange Commission for the quarterly period ended June 30, 2007. The suit is “Victoria Gonzalez v. Drew Industries Inc. et al., Case No. 2:06- cv-08233-DDP-JWJ,” filed in the U.S. District Court for the Central District of California under Judge Dean D. Pregerson with referral to Judge Jeffrey W. Johnson. Representing the plaintiff are: Eric H. Gibbs, Esq. Girard Gibbs 601 California Street, 14th Floor San Francisco, CA 94108 Phone: 415-981-4800 E-mail: ehg@girardgibbs.com Representing the defendants are: Peter B. Gelblum Mitchell Silberberg & Knupp 11377 W. Olympic Blvd. Los Angeles, CA 90064-1683 Phone: 310-312-2000 E-mail: pbg@msk.com DUKE ENERGY: Still Faces Katrina-Related Litigation in Miss. ------------------------------------------------------------ Duke Energy Corp. continues to face a purported class action, captioned, "Comer, et al. v. Nationwide Mutual Insurance Co.," which was filed in the U.S. District Court for the Southern District of Mississippi. On April 19, 2006, Duke Energy and Cinergy Corp., were named in the third amended complaint of the purported class action. In it plaintiffs claim that Duke Energy and Cinergy, along with numerous other utilities, oil companies, coal companies and chemical companies, are liable for damages relating to losses suffered by victims of Hurricane Katrina. Plaintiffs claim that defendants’ greenhouse gas emissions contributed to the frequency and intensity of storms such as Hurricane Katrina. In October 2006, Duke Energy and Cinergy were served with this lawsuit, according to the company's Aug. 9, 2007 Form 10-Q Filing with the U.S. Securities Exchange Commission for the quarterly period ended June 30, 2007. The suit is "Comer, et al. v. Nationwide Mutual Insurance Co., Case No. 1:05- cv-00436-LTS-RHW," filed in the U.S. District Court for the Southern District of Mississippi under Judge L. T. Senter, Jr. with referral to Judge Robert H. Walker. Representing the plaintiffs are: F. Gerald Maples and Meredith A. Mayberry, Esqs. F. Gerald Maples, PA 902 Julia Street New Orleans, LA 70113 Phone: 504/569-8732 E-mail: federal@geraldmaples.com mmayberry@geraldmaples.com - and - Randall Allan Smith and Stephen M. Wiles, Esqs. Smith & Fawer 201 St. Charles Ave., Suite 3702 New Orleans, LA 70170 Phone: 504/525-2200 Fax: 504/525-2205 E-mail: rasmith3@bellsouth.net smwiles@smithfawer.com DUKE ENERGY: Price Indexing Suit Settlement Gets Final Approval --------------------------------------------------------------- A judgment was entered that grants final approval to a settlement of several class actions -– collectively known as the San Diego Price Indexing Cases -- that were filed against Duke Energy Corp. and several of its affiliates, as well as other energy companies. Initially, defendants were named as parties to 25 lawsuits which have been coordinated as the “Price Indexing Cases” in San Diego, California. Twelve of the lawsuits seek class-action certification. The plaintiffs allege that the defendants conspired to manipulate price of natural gas in violation of state and/or federal antitrust laws, unfair business practices and other laws. Plaintiffs in some of the cases further allege that such activities, including engaging in “round trip” trades, providing false information to natural gas trade publications and unlawfully exchanging information, resulted in artificially high energy prices. In December 2006, Duke Energy executed an agreement to settle the 12 class action cases. In June 2007, judgment granting final approval to the class action settlement was entered, according to the company's Aug. 9, 2007 Form 10-Q Filing with the U.S. Securities Exchange Commission for the quarterly period ended June 30, 2007. Duke Energy Corp. -- http://www.duke-energy.com-- is an energy company located in the Americas with a real estate subsidiary. Duke Energy operates in six business units: U.S. Franchised Electric and Gas, Natural Gas Transmission, Field Services, Commercial Power, International Energy and Duke Energy’s 50% interest in the Crescent joint venture. DUKE ENERGY: March 2008 Trial Set for S.C. ERISA Violations Suit ---------------------------------------------------------------- A March 2008 trial is scheduled for a purported class action filed against Duke Energy Corp. in the U.S. District Court for the District Court in South Carolina, alleging discrimination and violation of pension laws. Allegations of Employee Retirement Income Security Act and Age Discrimination in Employment Act violations against Duke Energy and the Duke Energy Retirement Cash Balance Plan arose out of the conversion of the Duke Energy Co. Employees' Retirement Plan into the Duke Energy Retirement Cash Balance Plan. The case also raises some Plan administration issues, alleging errors in the application of Plan provisions (e.g., the calculation of interest rate credits in 1997 and 1998 and the calculation of lump-sum distributions). Plaintiffs seek to represent present and former participants in the Duke Energy Retirement Cash Balance Plan. This group is estimated to include approximately 36,000 persons. They also seek to divide the putative class into sub-classes based on age. Six causes of action are alleged, ranging from age discrimination, to various alleged ERISA violations, to allegations of breach of fiduciary duty. Plaintiffs seek a broad array of remedies, including a retroactive reformation of the Duke Energy Retirement Cash Balance Plan and a recalculation of participants'/beneficiaries' benefits under the revised and reformed plan. Duke Energy filed its answer in March 2006. A second class action was filed in federal court in South Carolina, alleging similar claims and seeking to represent the same class of defendants. The second case has been voluntarily dismissed, without prejudice, effectively consolidating it with the first case. A portion of this liability was assigned to Spectra Energy in connection with the spin-off in January 2007. The matter is currently in discovery with a tentative trial date of March 2008, according to the company's Aug. 9, 2007 Form 10-Q Filing with the U.S. Securities Exchange Commission for the quarterly period ended June 30, 2007. The suit is "George et al. v. Duke Energy Retirement Cash Balance Plan et al., Case No. 8:06-cv-00373-HFF," filed in the U.S. District Court of South Carolina under Judge Henry F. Floyd. Representing the plaintiffs are: James Robinson Gilreath, Esq. Gilreath Law Firm P.O. Box 2147 Greenville, SC 29602 Phone: 864-242-4727 Fax: 864-232-4395 E-mail: jim@gilreathlaw.com Cheryl F. Perkins, Esq. Whetstone Myers Perkins and Young, LLC P.O. Box 8086 Columbia, SC 29202 Phone: 803-799-9400 Fax: 803-799-2017 E-mail: cperkins@attorneyssc.com - and - Mona Lisa Wallace, Esq. Wallace and Graham 525 North Main Street Salisbury, NC 28144 Phone: 704-633-5244 Fax: 704-633-9434 E-mail: mwallace@wallacegraham.com DYNAMICS RESEARCH: Appeals Ruling in Mass. Employee Litigation -------------------------------------------------------------- Dynamics Research Corp. is appealing to the U.S. Court of Appeals for the Second Circuit a decision by the U.S. District Court for the District of Massachusetts declaring that a class action waiver is not enforceable in a labor suit filed against the company, according to the company's Aug. 9, 2007 Form 10-Q Filing with the U.S. Securities Exchange Commission for the quarterly period ended June 30, 2007. The suit was filed on June 28, 2005. It was characterized as a class action employee suit, alleging violations of the Fair Labor Standards Act and certain provisions of Massachusetts General Laws On April 10, 2006, the U.S. District Court for the District of Massachusetts entered an order granting in part the Company’s motion to dismiss the civil action filed against the Company, and to compel compliance with its mandatory dispute resolution program, directing that the parties arbitrate the aforementioned claims, and striking the class action waiver which was part of the dispute resolution program. Following the District Court’s decision, the plaintiffs commenced an arbitration before the American Arbitration Association, asserting the same claims as they asserted in the District Court. An arbitrator has been selected, but no substantive action has occurred in the arbitration. On Jan. 26, 2007 the Company filed an appeal with the U.S. Court of Appeals for the Second Circuit appealing the portion of the District Court’s decision that the class action waiver is not enforceable. The suit is, "Skirchak et al. v. Dynamics Research Corporation, Case No. 1:05-cv-11362-MEL," filed in the U.S. District Court for the District of Massachusetts under Judge Morris E. Lasker. Representing the plaintiffs is: Elayne N. Alanis, Esq. 3rd Floor, 10 Tremont St. Boston, MA 02108 Phone: 617-263-1203 Fax: 617-723-4729 E-mail: ealanislaw@verizon.net Representing the defendants is: Carrie J. Campion, Esq. Jeffrey B. Gilbreth, Esq. David S. Rosenthal, Esq. Nixon Peabody, LLP 100 Summer Street Boston, MA 02110 Phone: 617-345-1045, 617-345-1000 and 617-345-6183 Fax: 866-812-2847 E-mail: ccampion@nixonpeabody.com jgilbreth@nixonpeabody.com drosenthal@nixonpeabody.com DYNEGY POWER: Seeks Dismissal of Ill. Procurement Auction Suits --------------------------------------------------------------- Dynegy Power Marketing, Inc., a subsidiary of Dynegy, Inc., is seeking for the dismissal of claims in two purported class actions related to the Illinois reverse power procurement auction. Attorney General’s Complaint On March 15, 2007, as amended on March 16, 2007, the Attorney General of the State of Illinois filed a complaint at the Federal Energy Regulatory Commission against 16 electricity suppliers engaged in wholesale power sales, challenging the results of the Illinois reverse power procurement auction conducted in September 2006. The complaint alleges that the prices charged under supply contracts resulting from the auction process are not just and reasonable. It also requests that FERC investigate purported price manipulation by the wholesale suppliers in the auction process. The complaint names Dynegy Power among the respondents. The public version of the complaint served upon Dynegy Power is heavily redacted resulting in substantial uncertainty regarding the specific allegations against DPM and the specific relief sought by the IAG against DPM. Class Actions Shortly after the Attorney General’s filing at FERC, two civil class action complaints against 21 wholesale electricity suppliers and utilities, including Dynegy Power, were filed in Illinois state court. The complaints largely mirror the Attorney General’s filing and seek unspecified actual and punitive damages. In late April 2007, the defendants filed notices of removal to federal court in both cases. In late June 2007, the defendants moved to dismiss plaintiffs’ claim on grounds of the filed rate doctrine and preemption. Briefing on defendants’ motion is expected to continue into the third quarter. Dynegy, Inc. -- http://www.dynegy.com/-- is a holding company focused on the power generation sector of the energy industry. The Company’s primary business is the production and sale of electric energy, capacity and ancillary services from its 11,739-megawatt fleet (20 plants) of owned or leased power generation facilities. Dynegy’s power generation facilities generate electricity by burning coal, natural gas or oil. FOREST OIL: Court Mulls Plaintiff's Dismissal Bid in Merger Suit ---------------------------------------------------------------- A Texas state court has yet to rule on a plaintiff's request to dismiss a purported class action filed against Forest Oil Corp. in connection with its acquisition of The Houston Exploration Co. On June 6, 2007, Forest acquired The Houston Exploration Co. pursuant to an agreement and plan of merger. In connection with the acquisition, on June 6, 2007, Houston Exploration was merged with and into Forest, with Forest continuing as the surviving entity. Shortly thereafter, Houston Exploration's directors and Forest were named defendants in a shareholder lawsuit brought by the City of Monroe Employees' Retirement System on June 22, 2006 in State court in Houston, Texas. The Plaintiff asserts that the Houston Exploration directors breached their fiduciary duties by not pursuing a June 12, 2006 unsolicited proposal to purchase the outstanding shares of Houston Exploration common stock for $62 per share that was made by a Houston Exploration shareholder. The Plaintiff also asserts, on behalf of an uncertified class of Houston Exploration's shareholders, that the Houston Exploration directors' decision to enter into the merger agreement with Forest constituted a breach of fiduciary duties, because, the Plaintiff alleges, the merger consideration being offered by Forest is inadequate. The Plaintiff asserts that Forest aided and abetted the Houston Exploration directors' alleged breach of fiduciary duties. On Aug. 2, 2007, Plaintiff filed with the court a notice of nonsuit without prejudice and a request for dismissal. At the time of filing this Report, the court has not ruled on the Plaintiff's request to dismiss the lawsuit, according to the company's Aug. 9, 2007 Form 10-Q Filing with the U.S. Securities Exchange Commission for the quarterly period ended June 30, 2007. Forest Oil Corp. -- http://www.forestoil.com/-- is an independent oil and gas company engaged in the acquisition, exploration, development, and production of natural gas and liquids primarily in North America. It conducts its operations in three geographical segments and five business units. Geographical segments include the U.S., Canada and International. ILLINOIS: Department of Revenue Faces Suit Over “529” Tax Breaks ---------------------------------------------------------------- The Illinois Department of Revenue faces a purported class action in the Circuit Court of Cook County that challenges the legality of giving tax breaks to residents who invest in the state's 529 college savings program but not other states’ plans. The suit, “Maryam Ahmad v. Illinois Department of Revenue,” was filed on May 15, 2007. It essentially claims that the state's tax deduction, which is limited to contributions to Illinois' 529 plan violates the U.S. Constitution’s commerce clause. MERCK & CO: Nixed Local 68 Vioxx Suit to Go Ahead in State Court ---------------------------------------------------------------- Plaintiff’s lead counsel in the suit, “International Union of Operating Engineers Local No. 68 Welfare Fund v. Merck & Co., Inc.” said he is pleased that his client’s substantive claims are preserved, allowing them to pursue complaints in state court. The New Jersey Supreme Court issued a decision on Sept. 6 reversing a March 31, 2006 decision of the New Jersey Appellate Division, which had upheld a decision certifying a Vioxx-related nationwide consumer fraud class action against Merck & Co. Inc., brought on behalf of third-party payors by Seeger Weiss LLP, a nationally-recognized complex class action firm. The Court concluded that certification of the class, consisting of all non- governmental health plans that paid for members' Vioxx prescriptions, was not appropriate and that claims relating to Merck's deceptive marketing and sale of Vioxx should be pursued by other means. The suit asserts claims against Merck under the New Jersey Consumer Fraud Act to recover losses incurred by the health plans for covering prescriptions for the now-withdrawn painkiller. On July 29, 2005, the New Jersey Superior Court had granted a motion by the class representative, a labor union health plan, to allow the lawsuit to proceed as a nationwide class-action, based on allegations that Merck engaged in widespread and systematic concealment of information concerning the serious health risks of Vioxx. Counsel for Local 68, Christopher A. Seeger, stated: "Although we respectfully disagree with the Court's conclusion, we are pleased that our client's substantive claims are preserved. Importantly, the Court's ruling gives us the green light to pursue these claims for Local 68 and other victimized entities in New Jersey State Court. “The decision [] should be viewed as a clarion call to all of the institutions and entities that were harmed by Merck's wrongdoing in the promotion and marketing of Vioxx between 1999 and 2004. Merck has chosen to fight these consumer fraud claims in individual battles. Notably, four of the five New Jersey juries hearing plaintiffs' Consumer Fraud Claims relating to Merck's marketing of Vioxx have held Merck accountable for consumer fraud. This bodes well for the claims that the health plans are now free to pursue individually in New Jersey. “As lead counsel that has shepherded these individual and institutional claims from their inception and pursued them in the trial and appellate courts, we stand ready to fight on this battleground." The suit is “International Union of Operating Engineers Local No. 68 Welfare Fund v. Merck & Co., Inc.” The plaintiffs' lead lawyer is: Christopher A. Seeger, Esq. Seeger Weiss LLP One William Street New York, New York 10004 (New York Co.) Phone: 212-584-0700 Fax: 212-584-0799 Merck’s lawyer is: John H. Beisner, Esq. O'Melveny & Myers LLP 1625 Eye Street, NW Washington, District of Columbia 20006-4001 Phone: 202-383-5300 Fax: 202-383-5414 QVC: Recalls Convection Ovens with Wires that can Overheat ---------------------------------------------------------- QVC of West Chester, Pa., in cooperation with U.S. Consumer Product Safety Commission, is recalling about 32,000 Cook’s Essentials Convection Ovens with Pull-Out Rotisserie and Deni Convection Ovens with Rotisserie. The company said the wires behind the control panel can overheat, posing fire and electric shock hazards. QVC has received 49 reports of incidents, including five minor burns, five electrical shocks and 11 incidents of minor property damage to kitchen cabinets and countertops. This recall involves the Cook’s Essentials Multi-Function Convection Oven with Pull-Out Rotisserie (model number 910500), which was also sold as the Deni Convection Oven with Rotisserie (model number 10500). The model number can be found on the bottom of the oven. These are countertop ovens and the brand name “Cook’s Essentials” or “Deni” is found on the front right panel. The ovens were made in China and manufactured by Keystone Manufacturing Co. Inc., of Buffalo, N.Y. They were sold through The Cook’s Essentials brand was sold exclusively through QVC and the Deni brand was sold through various on-line retailers from October 2006 through May 2007 for about $125. Picture of the oven: http://www.cpsc.gov/cpscpub/prerel/prhtml07/07577.jpg Consumers are advised to immediately stop using the oven and contact QVC or Keystone to receive a replacement oven or a refund. QVC and Keystone have notified consumers by telephone and by mail to stop using the oven. Consumers who bought a Cook’s Essentials oven through a QVC broadcast or at QVC.com, and who have not been contacted by QVC, should call QVC at (800) 367- 9444 between 7 a.m. and 1 a.m. ET seven days a week. Consumers who bought a Cook’s Essentials oven at a QVC outlet or retail store should return the oven to the store at which it was purchased for a refund. Consumers who bought a Deni brand oven and who have not been contacted by Keystone should call Keystone at (800) 336-4822 between 9 a.m. and 5 p.m. ET Monday through Friday. Consumers can also visit http://www.qvc.comor http://www.deni.com. SHAKE COMPANY: Settles Suits Over Faulty Cal-Shake Roofs for $3M ---------------------------------------------------------------- Home and building owners with Cal-Shake roofs installed between Jan. 25, 1980 and Jan. 31, 1986 may be eligible for relief as part of a proposed $2.975 million Settlement of class actions. The lawsuits allege that the shakes, manufactured by Shake Company of California, are defective and can cause damages. This case is called Shake Roof Cases, Judicial Council Coordination Proceeding No. 4208, Case No. C99- 00318. Cal-Shake shakes are a type of fiber-cement roofing shakes made to look like wood shakes. Cal-Shake shakes were sold and installed between 1980 and 1995. This class includes all persons who own or owned property with Cal-Shakes shakes that were manufactured between January 25, 1980 and January 31, 1986. The Class includes property owners who have replaced their Cal-Shake shakes. Images and description of Cal-Shake roofing shakes can be found at the Web site http://www.CalShakeClassAction.com. If approved, the Settlement will provide cash payments to Class Members who qualify for reimbursement under the terms of the Plan of Distribution. Potential Class Members should visit the Settlement Web site http://www.CalShakeClassAction.comor call toll-free 1-866-844-0600 for complete information on their legal rights, including the Plan of Distribution and how to file a claim form. "This Settlement is very meaningful and will provide relief to those who have or used to have a Cal-Shake roof. I encourage all individuals who think they may be affected to visit the Web site for complete information on their legal rights and how to submit a claim form for relief," explained Co-Lead Class Counsel David Birka-White of Birka-White Law Offices in San Francisco, CA. Deadline for exclusion is Oct. 10, 2007. The settlement on the Net: http://www.CalShakeClassAction.com. The Court will hold a Final Approval Hearing on October 31, 2007. At that time, the Court will consider whether to approve the Settlement and award attorneys' fees and costs. If the Settlement is approved, claim forms will be made available. All potential Class Members are encouraged to visit http://www.CalShakeClassAction.comfor information. UNITED ARAB EMIRATES: Officials Face Ky. Child Trafficking Suit --------------------------------------------------------------- Sheik Hamdan bin Rashid al Maktoum, the United Arab Emirates (UAE) minister of finance, and unnamed others are facing a purported class action in the U.S. District Court for the Eastern District of Kentucky over the use of thousands of children to ride racing camels. Attorney Elizabeth Seif of Lexington filed the suit on Sept. 11, 2007, seeking class-action status for the case on behalf of an estimated 10,000 children and their families who she says were illegally trafficked to serve as jockeys during camel races. The lawsuit was brought under the Alien Tort Statute, which allows foreigners to sue in U.S. courts in certain circumstances. It is seeking damages from the defendants. Neither the children nor their parents live in the United States, and the racing was held in several Persian Gulf countries for decades. The families are mainly from Pakistan, Bangladesh, Sudan, and Mauritania. In a written statement Dr. Habib Al Mulla, who represents the UAE finance minister, called the suit baseless. He said, “Venue-shopping by the plaintiffs' attorneys won't change the fact that this case simply doesn't belong in U.S. courts.” He added, "The lawsuit distracts attention from the truly important efforts by the UAE and UNICEF to provide life-changing social services and financial compensation to boys formerly employed as camel jockeys." The filing comes in the wake of the dismissal of a similar purported class action that was filed last year in the U.S. District Court for the Southern District of Florida. The suit, "Minor R.M., et al. v. Bin Rashid, et al., Case No. 1:06-cv-22253- CMA," was dismissed, since according to the presiding judge it didn't belong in an American court (Class Action Reporter, Aug. 8, 2007). Judge Cecilia M. Altonaga specifically stated in her ruling that she could not find a strong enough legal connection between the two Emirates leaders named in that Miami case and their business interests in the U.S. to permit that case to move forward. The recent suit is “Doe I et al v. Al Maktoum et al., Case No. 5:07-cv-00293- KSF,” filed in the U.S. District Court for the Eastern District of Kentucky under Judge Karl S. Forester. Representing the plaintiffs is: Elizabeth R. Seif, Esq. Seif & Austin, PLLC 163 E. Main Street, Suite 130, Barrister Hall Lexington, KY 40507-1367 Phone: 859-381-9903 Fax: 859-381-9933 E-mail: lseif@seifaustin.com ZIEMAN MANUFACTURING: Settles Suits Over Toy Hauler Trailers ------------------------------------------------------------ Zieman Manufacturing Co., an acquisition of Drew Industries, Inc., reached a tentative settlement for two purported class actions in California over the alleged faulty design and manufacture of toy hauler trailers On or about Oct. 11, and 12, 2005, these actions were commenced in California court: -- "Arlen Williams, Jr. vs. Weekend Warrior Trailers, Inc., Zieman Manufacturing Co., et al. (Case No. CV027691);" and -- "Joseph Giordano and Dennis Gish, vs. Weekend Warrior Trailers, Inc, and Zieman Manufacturing Co., et al. (Case No. 05AS04523)." Each case purports to be a class action on behalf of the named plaintiffs and all others similarly situated. The complaints in both cases are substantially identical and the cases were consolidated. Defendant Zieman Manufacturing Co. is a subsidiary of Lippert Components, Inc., which in turn is a unit of Drew Industries, Inc. Plaintiffs allege that defendant Weekend Warrior sold certain toy hauler trailers during the model years 1999 to 2005, equipped with frames manufactured by Zieman that are defective in design and manufacture. They also allege that the defects cause the trailer to place excessive weight on the trailer coach tongue and the towing vehicle's trailer hitch, causing damage to the trailers and the towing vehicles, and that the tires on the trailers do not support the advertised maximum towing capacity of the trailers. Plaintiffs seek to certify a class of residents of California who purchased such new or used models. They also seek monetary damages in an unspecified amount (including compensatory, incidental and consequential damages), punitive damages, restitution, declaratory and injunctive relief, attorney’s fees and costs. The parties reached a settlement in principle, and are negotiating the terms of a long-form settlement agreement, according to the company's Aug. 9, 2007 Form 10-Q Filing with the U.S. Securities Exchange Commission for the quarterly period ended June 30, 2007. Drew Industries, Inc. -- http://www.drewindustries.com-- manufactures and markets components primarily for recreational vehicles (RVs) and manufactured homes (MH). The Company perates through two segments: RVs and leisure products segment (the RV Segment) and the manufactured housing products segment (the MH Segment). Asbestos Alerts ASBESTOS LITIGATION: Met-Pro Records 36 Pending Cases at July 31 ---------------------------------------------------------------- Met-Pro Corp. recorded a total of 36 pending asbestos-related cases filed against it as of July 31, 2007, compared with 37 cases as of Jan. 31, 2007, according to the Company’s quarterly report filed with the U.S. Securities and Exchange Commission on Sept. 7, 2007. As of April 30, 2007, the Company recorded a total of 37 asbestos-related cases pending against it. (Class Action Reporter, June 8, 2007) Beginning in 2002, the Company and one of its divisions began to be named as one of many defendants in asbestos-related lawsuits filed predominantly in Mississippi on a mass basis by large numbers of plaintiffs against a large number of industrial companies including in particular those in the pump and fluid handling industries. The Company and this division have been named as one of many pump and fluid handling defendants in asbestos-related lawsuits filed in New York and Maryland by individual plaintiffs, sometimes husband and wife. To a lesser extent, the Company and this division have also been named together with many other pump and fluid handling defendants in these type of cases in other states. The complaints filed against the Company and this division has been vague, general and speculative, alleging that the Company and the division, along with the numerous other defendants, sold unidentified asbestos-containing products and engaged in other related actions which caused injuries and loss to the plaintiffs. The Company and the division have been dismissed from or settled a number of these cases. The sum total of all payments through July 31, 2007 to settle these cases was US$340,000, all of which has been paid by the Company’s insurers, with an average cost per settled claim of about US$24,000. For the six-month period ended July 31, 2007, 10 new cases were filed against the Company. The Company was dismissed from seven cases and settled four cases. Most of the pending cases have not advanced beyond the early stages of discovery, although several cases are on schedules leading to trial. Harleysville, Pa.-based Met-Pro Corp.’s product recovery and pollution- control segment makes products ranging from particle collectors to fans and blowers. The fluid-handling equipment segment makes products for handling corrosive, abrasive, and high-temperature liquids. Products include filter systems for the printing, plating, and metal-finishing industries, as well as pumps for the petrochemical, pharmaceutical, plastics, and food-processing industries. ASBESTOS LITIGATION: Casella Still Works w/ N.H. AG on Disposal ---------------------------------------------------------------- Casella Waste Systems Inc.’s subsidiary, North Country Environmental Services Inc., continues to cooperate with the Office of the Attorney General of the State of New Hampshire’s investigation over asbestos-related disposal matters. On July 12, 2005, NCES received notice from the Office of the Attorney General that it has commenced an official investigation into allegations that asbestos was concealed in loads of construction and demolition debris from a hotel renovation, delivered to the NCES landfill by a third party, and disposed there on several occasions between 1999 and 2002. NCES is engaged in discussions with the Office of the Attorney General over the terms of a possible civil settlement regarding this matter, according to the Company’s quarterly report filed with the U.S. Securities and Exchange Commission on Sept. 7, 2007. Rutland, Vt.-based Casella Waste Systems Inc. operates regional waste-hauling businesses, mainly in the northeastern U.S., that serve commercial, industrial, and residential customers. The Company owns and/or operates 39 solid waste collection businesses, 39 recycling facilities, 33 transfer stations, 11 landfills, and one waste-to-energy power generation facility. ASBESTOS LITIGATION: Nov. 2007 Hearings Set for ASARCO Liability ---------------------------------------------------------------- Judge Richard S. Schmidt will conduct a hearing on the issue of ASARCO LLC's derivative asbestos liabilities and the estimated amount, if any, of that liability from Nov. 13, 2007 to Nov. 16, 2007, and continuing on Nov. 20, 2007 to Nov. 21, 2007, if necessary, in Corpus Christi, Tex. A final pre-hearing conference will be held on Nov. 5, 2007. ASARCO LLC asks the Court to direct all parties-in-interest in the derivative asbestos liabilities estimation proceeding to engage in a mediation of their disputes before the end of September 2007. Because of the complexity of the issues, including the substantial difference in damages estimates and the number of parties-in-interest involved in the dispute, ASARCO believes that a structured alternative dispute resolution forum, like mediation, would facilitate and maximize the chances of a successful resolution of the asbestos alter ego estimation. In March 2007, ASARCO estimated that its derivative asbestos liability is between US$242,100,000 to US$446,900,000. The Official Committee of Unsecured Creditors for the Asbestos Subsidiary Debtors and the Future Claims Representative estimated ASARCO's derivative asbestos liability between US$906,000,000 to US$2,655,000,000. The Asbestos Committee and the FCR agree with ASARCO that mediation would increase the prospects of a settlement of the asbestos liabilities. However, the Asbestos Committee and the FCR believe that the November estimation trial date should be suspended so that parties-in-interest will not be distracted and burdened on meeting with estimation schedule. The Asbestos Committee and the FCR suggest that if mediation proves unsuccessful, then the CMO deadlines can resume and the trial date be reset to a length of time equal to the period between the Court's Order for mediation and the date of unsuccessful conclusion of mediation as reported to the Court by the mediator. Asarco Inc., on the other hand, asserts that if the Court grants the mediation request, the estimation hearing date scheduled in November 2007 need not be continued. Asarco Inc. says that any mediation preparation will be largely duplicative of the estimation hearing preparation. (ASARCO Bankruptcy News, Issue No. 54; Bankruptcy Creditors’ Service, Inc., 215/945-7000) ASBESTOS LITIGATION: U.K. Widow Seeks GBP300,000 in Compensation ---------------------------------------------------------------- Annette Rankine seeks up to GBP300,000 from the Poole Borough Council and from Ferndown, U.K.-based Dixon Mechanical Services for the death of her husband, Barry Rankine, Daily Echo reports. According to a writ issued in London’s High Court, the 62-year-old Mr. Rankine died from malignant mesothelioma. The writ says that Mr. Rankine was exposed to asbestos dust and fibers when he worked as a heating engineer for Dixon's predecessor at Hurn Airport near Bournemouth between 1965 and 1976. Mr. Rankine was also allegedly exposed to asbestos when he worked for the council as a painter and decorator working on council houses in the Poole area. He often worked in boiler rooms at the airport, stripping off asbestos lagging, and clearing up debris and dust, and by the end of the day he was often covered in dust, the court will hear. The writ says Mr. Rankine’s work for the council involved preparing pipes and gutters which contained asbestos, and he was not warned of the health risks of this. Mr. Rankine started noticing symptoms of breathlessness and fatigue in 2005 and his condition was diagnosed in March 2006. He died on Aug. 11, 2006. Mrs. Rankine brands the Company and the council negligent and says they failed to provide protective equipment, failed to damp down asbestos, failed to warn Mr. Rankine of the dangers to his heath and failed to provide a safe system and place of work. Mrs. Rankine has taken the first steps in her legal battle for damages by issuing a writ, which has been assigned to procedural judge Master Whitaker. ASBESTOS LITIGATION: Inquest Links Secretary’s Death to Hazards ---------------------------------------------------------------- An inquest at Peterborough Town Hall in the U.K. heard that the death of retired secretary Mary Gregory was caused by asbestos, The Evening Telegraph reports. The inquest heard that the 63-year-old Mrs. Gregory, from Mushkam, Bretton, died from lung cancer after being exposed to asbestos while washing her former husband’s clothes. Mrs. Gregory was admitted to Peterborough District Hospital on July 2006 after her left lung collapsed and she was given 12 to 18 months to live. After her condition deteriorated, Mrs. Gregory was transferred to the Sue Ryder Care Thorpe Hall Hospice where she later died on April 12, 2007. Mrs. Gregory also smoked since the age of 15. An inquest at Peterborough Town Hall heard how Mrs. Gregory was exposed to asbestos for many years when laundering her first husband’s clothing. Mrs. Gregory’s husband was a carpenter and used to saw asbestos. When he came home, he would shake it outside before giving it to his wife to wash. Consultant pathologist at PDH Dr. Elizabeth Astle said that a post-mortem revealed that Mrs. Gregory’s lungs had been exposed to asbestos. The cause of death was recorded by coroner Gordon Ryall as industrial disease. ASBESTOS LITIGATION: Oil Handler Sues Sabine Towing for Exposure ---------------------------------------------------------------- Linda O’Connor, on behalf of oil handler Ray Fontenot, Sr., sued the Sabine Towing and Transportation Co. for Mr. Fontenot’s exposure to asbestos, The Southeast Texas Record reports. Through Provost Umphrey attorney David Wilson, Ms. O'Connor filed her asbestos lawsuit with the Jefferson County District Court on Sept. 5, 2007. Mr. Fontenot died of lung cancer in 2002. Ms. O’Connor claims Sabine Towing exposed Mr. Fontenot to asbestos dust during his eight-year tenure. According to Ms. O’Connor’s original petition, from 1977 to 1985, Mr. Fontenot was employed by Sabine Towing "as an oiler handling on-site cargo owned by the defendant.” Medical documents attached to the suit indicated that most of Mr. Fontenot's asbestos exposure came during the "lengthy years" he served as a Merchant Marine. He was around 73 years of age when he died. The medical documents, supplied by the Texas Occupational Medicine Institute, also stated Mr. Fontenot had a 40 pack-year smoking history. Ms. O'Connor is suing for Mr. Fontenot's past physical pain, mental anguish, lost wages, physical impairment and medical expenses, plus funeral expenses. Judge Bob Wortham, 58th Judicial District, will preside over Case No. A179- 945. ASBESTOS LITIGATION: Maine Indicts Hallowell for Removal Breach ---------------------------------------------------------------- The State of Maine has cited Augusta, Maine-based Hallowell House LLC for failing to comply with asbestos laws and regulations on the Company’s renovation of the Second Street apartment building, Kennebec Journal reports. The notice of violation addressing Hallowell House was dated Aug. 6, 2007. Alleged violations are: -- Failure to comply with all applicable pre-abatement requirements prior to engaging in an asbestos-abatement activity. -- Failure to notify the department in writing of intention to engage in an asbestos-abatement activity involving more than three linear feet or three square feet of asbestos-containing material. -- Failure to use licensed or certified asbestos professionals to engage in an asbestos abatement activity. -- Failure to comply with all applicable work practice requirements while engaging in an asbestos-abatement activity. -- Failure to comply with all applicable requirements governing release of the regulated area when conducting an asbestos-abatement activity. After receiving a complaint from tenants on May 6, 2007 alleging the improper removal of materials containing asbestos, the Maine Department of Environmental Protection did an on-site compliance inspection. Tenants were living in the building when crews came in and started gutting the units, tearing out walls and filling the air with construction dust before testing for asbestos. Asbestos was later found in some of the linoleum flooring and the basement. Jamie Tansey, DEP’s enforcement coordinator for the Lead and Asbestos Hazardous Control Program, said nothing has been resolved, but monetary penalties have been proposed. Mr. Tansey said official enforcement actions taken by the state involve a notice of violation with a proposed consent agreement or, at times, civil action in court. Mr. Tansey said the Company had 15 days from the date on the notice to contact the department to confirm it received the letter. Mark Robinson, spokesman for Hallowell House, said the building is vacated except for an antique dealer with a shop on the bottom floor. That shop tested negative for asbestos, and is safe for customers. After tenants complained to the DEP, Mr. Tansey said the company hired a licensed abatement contractor to go into the apartment building and remove the asbestos. He said the airborne hazardous material needed to be removed as part of the renovation project. Building materials likely to contain asbestos can be found in roofing, flooring, siding, ceiling and wall systems as well as heating components, ventilation, air conditioning and plumbing systems. ASBESTOS LITIGATION: U.K. Widow Seeks GBP200,000 in Compensation ---------------------------------------------------------------- Edith Oates, the widow of 69-year-old Peter Oates who died of mesothelioma, has launched a legal battle for compensation of up to GBP200,000, Runcorn Weekly News reports. Mrs. Oates, of Frodsham, England, U.K., claims from ICI Chemicals and Polymers and Balfour Beatty, the companies she blames Mr. Oates’ death. According to the writ issued in London’s High Court, Mr. Oates was exposed to deadly asbestos dust and fibers when he worked for ICI for 11 months in 1950, and again between 1955 and 1967, as a builder's and brickie's laborer at the Castner Kellner Plant in Runcorn. The writ claims Mr. Oates worked close to laggers working with asbestos and mixing up asbestos paste, removing old asbestos lagging, and applying new lagging. It is alleged Mr. Oates also worked in the boiler room and furnace area which was extensively lined with asbestos, which released large amounts of asbestos dust when it was disturbed. Between 1967 and 1989, Mr. Oates worked as a laborer for Balfour Beatty's Helsby factory, where it is alleged he inhaled asbestos dust when material containing asbestos was cut in the machine workshop. The writ claims large amounts of other products containing asbestos, such as asbestos rope, cord and tape, soft asbestos sheets, asbestos packing, and brake materials were used throughout the factory, generating more of the deadly dust. Mr. Oates developed malignant mesothelioma and suffered increasing pain and disability before his death on July 13, 2004. ASBESTOS LITIGATION: Court Flips Ruling to Favor Georgia-Pacific ---------------------------------------------------------------- The Court of Appeals of Texas, Houston (1st District), reversed an asbestos- related ruling in favor of Georgia-Pacific Corp. in an action filed by Fred Stephens and Betty Stephens. Justices Alcala, Hanks, and Bland entered decision of Case No. 01-05-00132-CV on Aug. 13, 2007. For over 30 years, Mr. Stephens was employed in occupations that exposed him to asbestos and asbestos-containing materials. He worked for Finrow Painting from 1954 until 1977 and then started his own business, Stephens Painting. Mr. Stephens painted various commercial buildings. At each of these sites, he was responsible for painting the entire building, including the exterior and interior walls, the boiler room and pipes, and any equipment located within the building. Bestwall Co. manufactured the joint compound at issue in this case. Georgia- Pacific acquired Bestwall in 1965. The Georgia-Pacific/Bestwall joint compound contained between two and eight percent chrysotile asbestos. The Stephenses sued 106 named defendants and 100 John Doe defendants in the 23rd District Court, Brazoria County, Tex., alleging negligence, gross negligence, and strict liability. By the time of trial, the Stephenses had settled their claims with all but three defendants: Georgia-Pacific, Kaiser-Gypsum, and Guard-Line. Georgia-Pacific removed the case to federal court, alleging that Guard-Line, the Texas defendant, was fraudulently joined because the Stephenses had no evidence against it. After finding that Georgia-Pacific had failed to show fraudulent joinder, the federal court remanded the case back to state court. When trial resumed, Georgia-Pacific moved to strike the Stephenses' experts. At the close of the evidence, the court directed a verdict for Guard-Line. The court then submitted a jury charge inquiring about marketing defects and negligence as to the joint compound sold by Georgia-Pacific, together with the products of 10 settling defendants. The jury found six of the 11 defendants, including Georgia-Pacific, liable for both a marketing defect and for negligence. It apportioned responsibility at 20 percent for Georgia-Pacific and 16 percent for each of the other five liable settling defendants. The jury awarded Mr. Stephens US$1.5 million for past and future physical pain and impairment and US$1 million for past and future mental anguish. It awarded Mrs. Stephens US$1 million for loss of consortium and household services. It also found that Georgia-Pacific acted with malice and awarded US$2.5 million in exemplary damages. After making appropriate settlement credits and applying the punitive damages cap, the trial court signed a final judgment against Georgia-Pacific for US$1,903,878. This appeal followed. In a cross-issue, the Stephenses contended that the trial court erred in calculating prejudgment interest. The Appeals Court ruled that the expert testimony presented in this case is legally insufficient to support the jury's causation finding. The Appeals Court concluded that the expert testimony regarding causation presented at trial is legally insufficient proof of substantial-factor causation necessary to support the jury's negligence and strict liability marketing defect verdicts against Georgia-Pacific. The Appeals Court reversed and rendered. Eric T. Furey, Gilbert & Gilbert, Angleton, Russell S. Post, Beck, Redden & Secrest. L.L.P., Houston, Jeffrey Blake Simon, Waters & Kraus, L.L.P, Dallas, Joe G. Hollingsworth, Spriggs & Hollingsworth, Washington, DC, David M. Gunn, Beck, Redden & Secrest, L.L.P., Houston, John R. Gilbert, represented Georgia- Pacific Corp. Clay B. Carroll, Dallas, Michael P. Fleming, Conroe, Sean Patrick Tracey, Clark, Depew & Tracey, LTD., L.L.P., Houston, Charles S. Siegel, Waters & Kraus, L.L.P., Loren Jacobson, Waters & Kraus LLP, Dallas, represented Fred Stephens and Betty Stephens. ASBESTOS LITIGATION: Court OKs Board Ruling in Torchiano Action ---------------------------------------------------------------- The Supreme Court, Appellate Division, 3rd Department, New York, upheld a May 18, 2005 asbestos ruling of the Workers’ Compensation Board, which ruled that Michael Torchiano did not voluntarily withdraw from the labor market and granted workers’ compensation benefits. Judges Cardona, Crew III, Mugglin, Rose, and Lahtinen entered decision of the case on July 26, 2007. Mr. Torchiano was exposed to asbestos during the 33 years he worked for Consolidated Edison Company of New York Inc. In May 1999, he filed for workers' compensation benefits alleging asbestosis and chronic lung disease. Mr. Torchiano subsequently notified Consolidated Edison that he would retire effective July 1, 1999. Following a hearing, Mr. Torchiano’s disability due to occupational disease for asbestosis and asbestos-related pleural disease was established. After reserving decision, a Workers' Compensation Law Judge determined that Mr. Torchiano retired due to his disability and did not voluntarily withdraw from the labor market. The Workers' Compensation Board affirmed that decision and this appeal ensued. The Supreme Court held that substantial evidence supported finding that Mr. Torchiano did not voluntarily withdraw from labor market by retiring. Leonard B. Feld, Jericho, N.Y., represented Consolidated Edison Company of New York Inc. and other appellants. Andrew M. Cuomo, Attorney General, New York City (Estelle Kraushar of counsel), represented Workers' Compensation Board. ASBESTOS LITIGATION: Corning Inc. Expends $380,000 for Lobbying ---------------------------------------------------------------- According to a form posted online on Aug. 13, 2007 by the U.S. Senate’s public records office, Corning Inc. spent US$380,000 in the 2007-1st half to lobby for asbestos litigation reform and other matters, Associated Press reports. The Company also lobbied on issues related to the fiscal 2008 defense spending bill for transparent ceramic armor, diesel emissions reduction, broadband services, and patent reform. Besides Congress, the Company lobbied the Homeland Security, Labor and Energy departments, as well as the Small Business Administration and Environmental Protection Agency. Under a federal law enacted in 1995, lobbyists are required to disclose activities that could influence members of the executive and legislative branches. Lobbyists must register with Congress within 45 days of being hired or engaging in lobbying. Corning, N.Y.-based Corning Inc. makes fiber-optic cable. Once known for its kitchenware and lab products, the Company is now a leading provider of optical fiber and cable products and communications network equipment. Other major business segments include environmental technologies (ceramics for catalytic converters), and life sciences (laboratory equipment). ASBESTOS LITIGATION: Probe Finds No Evidence of Illegal Dumping ---------------------------------------------------------------- An investigation of the Marco Island Police Department in Marco Island, Fla., found no evidence of any illegal asbestos dumping on a future city park site, Naples Daily News reports. Released on Sept. 5, 2007, the report concluded an 11-month inquiry that began with strong assumptions and ended with seemingly little to show for its effort. Asbestos was first discovered on what is known as “Site C” of the future Veterans Park site located at the corner of Elkcam and Joy circles in March 2006. Fort Myers, Fla.-based asbestos consultant American Management Resources Corp. certified a cleaning of the site in April 2006, but last October 2006 more asbestos was found and the city police department initiated a criminal investigation of how it arrived. The report stated the most likely source of the asbestos was “rainfall, erosion and settling of the soil” on the site with previously undiscovered asbestos floating to the surface between March 2006 and October 2006. The report stated about 4,586 cubic yards of soil was removed from Site C since March 2006 and said AMRC removed “more than an adequate amount” of soil in its initial cleanup. Since October 2006 the investigation has been a source of tension between city hall and anti-city organizations, particularly as the city backed off earlier suggestions that the asbestos was deliberately placed on the site. Dissatisfaction over the city’s handling of the situation prompted more than 50 Marco residents to shop a formal complaint to various law enforcement bodies this spring. The U.S. Department of Justice asked the FBI to review the case in April 2007, but the FBI has not yet responded to its request, U.S. Assistant District Attorney Douglas Molloy said. The Florida Department of Law Enforcement has declined to investigate and the Collier County Sheriff’s Office has referred the case to state and federal environmental agencies, FDLE and CCSO officials said. The Marco police report does include allegations of “suspicious” findings of asbestos by city staff, contractors and residents. ASBESTOS LITIGATION: Abatement Probe in Calif. Station Continues ---------------------------------------------------------------- The San Luis Obispo County Air Pollution Control District continues its investigation on possible illegal asbestos abatement at the old Cambria Air Force Station in Cambria, Calif., SanLuisObispo.com reports. An air pollution official confirmed the agency went to the 34-acre property two miles south of Cambria but would not elaborate on what or who they were investigating. After reports from at least two people living at the old station who feared they were exposed to asbestos, authorities searched the property on Aug. 29, 2007 for evidence of illegal construction in asbestos-laced buildings and improper disposal of the hazardous materials. The residents also told The Tribune a garbage company unknowingly collected dozens of bags containing the harmful waste and dumped them into the landfills, and that asbestos pipes were buried at sites throughout the property. ASBESTOS LITIGATION: Case Filed v. ConEd on Manhattan Explosion ---------------------------------------------------------------- Abbey Spanier Rodd & Abrams, LLP commenced a Class Action lawsuit in the Supreme Court of the State of New York, County of New York, according to an Abbey Spanier Rodd & Abrams press release dated Sept. 10, 2007. The case was filed on behalf of a class of all businesses that were forced to close in the wake of the July 18, 2007 steam pipe explosion at the intersection of 41st Street and Lexington Avenue in Manhattan. The complaint alleges that defendant did not maintain the steam pipe system (the “Main”) in accordance with appropriate safety standards and did not take precautionary steps to ensure an explosion would not occur. On July 18, 2007, New York City experienced an unusually heavy rainstorm. After the storm, defendant conducted a visual check for vapor rising from the site of the Main, at 41st Street and Lexington Avenue. Defendant's inspection team reported no cause for concern. Just a few hours later, at 5:56 p.m., the Main exploded. The explosion sent water, steam and debris - including asbestos - as high as 12 stories into the air. In the aftermath of the explosion, a “frozen zone” was created and many businesses were forced to close. Plaintiff lost the use of its offices for a significant period and suffered a severe loss of its current and future expected revenues. Plaintiff was unable to operate its business as a result of its inability to access its office space. Plaintiff seeks to recover damages on behalf of all businesses that were forced to close in the wake of the steam pipe explosion. More information on this and other class actions can be found on the Class Action Newsline at http://www.primenewswire.com/ca. Contact: Abbey Spanier Rodd Abrams & Paradis, LLP Plaintiff's Counsel: Karen E. Fisch Orin Kurtz (212) 889-3700 (800) 889-3701 212 East 39th Street New York, N.Y. 10016 ASBESTOS LITIGATION: Removal Forces Postponement of School Event ---------------------------------------------------------------- The removal of asbestos from Westonzoyland Primary School in Somerset, England, U.K., has forced the postponement of a special event originally scheduled for Sept. 19, 2007, Bridgwater Mercury reports. An open morning had been planned for parents and family members but has now been put back following the earlier discovery of asbestos. School secretary Ruth Shanks said, "Due to the current situation here, this open morning has been postponed. It will be rearranged for later in the term." ASBESTOS LITIGATION: EPA Scientists Check Ill. Beach for Hazards ---------------------------------------------------------------- A team from the U.S. Environmental Protection Agency conducted on Sept. 5, 2007 new tests at Illinois Beach State Park near Zion, Ill., NBC5.com reports. In August 2007, a national review panel recommended the new tests, citing a lack of confidence in tests conducted in 2006. Since 1997, state and federal authorities always insisted the park was safe. Then the EPA raised new fears saying there were concerns about human use of the beach due to asbestos. The EPA's emergency response team from Nevada arrived at IBSP to play games. Over eight days, they will try and mimic a typical day at the beach: volleyball, Frisbee tossing, sunbathing. Officials say they are trying to prove their hypothesis that the beach is safe. EPA’s Richard Karl said, “We are trying to look and assess is there any danger out here for the public.” The concern at the park is twofold: asbestos fibers, which are buried in the sand, and asbestos-containing debris washing up on the shoreline. The EPA hopes to put to rest decade-long concerns about asbestos pollution that have raised loud complaints from the Illinois Dunesland Preservation Society. ASBESTOS LITIGATION: Ruling in Defendants’ Favor OKd in Rahmes ---------------------------------------------------------------- The Court of Appeals of Ohio, 8th District, Cuyahoga County, upheld an appeal, filed by the Estate of Robert Rahmes, of a summary judgment granted in favor of Oglebay Norton Co., Owens-Illinois Inc., McGraw Construction Company Inc., and R.E. Kramig & Company Inc. The following settled all claims with the Estate: Oglebay Norton, Owens- Illinois, and McGraw Construction. Kramig was the remaining defendant- appellee upon appeal. Judges Mary Eileen Kilbane, Sean C. Gallagher, and Ann Dyke entered decision of Case No. 88427 on Aug. 23, 2007. Judge Dyke dissented. On Sept. 22, 2004, in the Cuyahoga County, Court of Common Pleas, Mr. Rahmes sued defendants including Kramig. He died from mesothelioma on Dec. 27, 2004. He worked for Armco Steel in both its Hamilton, Ohio, and Middletown, Ohio, plants from about 1965 to 1982. The Estate alleged that Mr. Rahmes was exposed to asbestos via products supplied and installed by Kramig at Armco Steel. Kramig distributed Philip Carey insulation products throughout the Cincinnati area and possibly north to Dayton and Columbus. In a March 13, 2006 hearing, the trial court granted Kramig's previously filed motion to strike. The record revealed that Kramig was the major supplier of Philip Carey products, which contained asbestos, to the Cincinnati area and as far north as Dayton and Columbus during the years at issue in the instant case. The record revealed that Philip Carey products were used in the Armco Steel facilities in both Hamilton, Ohio and Middletown, Ohio. Not a single co- worker testified to seeing Mr. Rahmes near products supplied specifically by Kramig. The Estate argued that because of fiber drift within the Armco Steel plants, Mr. Rahmes was exposed to asbestos via products supplied and installed by Kramig. The Estate failed to demonstrate Mr. Rahmes' exposure to asbestos via Kramig's supply and installation of Philip Carey products. Nor has the Estate established that Mr. Rahmes' exposure to asbestos via Kramig was a substantial factor in causing Mr. Rahmes' final illness. The Estate appealed the trial court's decision to grant Kramig's motion for summary judgment. Upon review of the record, the Appeals court affirmed. The Appeals Court ordered that Kramer recover from the Estate costs herein taxed. The Court found there were reasonable grounds for this appeal. The Appeals Court ordered that a special mandate be sent to said court to carry this judgment into execution. Mark C. Meyer, Joseph J. Cirilano, Diana Nickerson Jacobs, Charles J. McLeigh, Jason T. Shipp, Goldberg, Persky & White, P.C., Pittsburgh, John J. Duffy & Associates, Olmsted, Ohio, represented Ethel Rahmes, Executor of the Estate of Robert Rahmes. David H. Boehm, Dennis P. Zapka, McLaughlin & McCaffrey, Cleveland, represented R.E. Kramig & Co. ASBESTOS LITIGATION: Court Reverses Ruling to Favor Plaintiffs ---------------------------------------------------------------- The Supreme Court of Utah reversed an asbestos-related ruling -- which granted summary judgment to various defendants -- in favor of various plaintiffs including John Carbaugh and Dixie Carbaugh. Judges Nehring, Durham, Wilkins, Durrant, and Parrish entered decision of Case No. 20050822 on Aug. 24, 2007. Although licensed to practice medicine in 11 states, Dr. Schonfeld is not licensed to practice medicine in Utah. However, he traveled to Utah and set up examination sites in hotels and motels in Salt Lake City. Dr. Schonfeld examined a number of individuals, overseeing the administration of pulmonary function tests, diagnosing his subjects, and offering medical advice. Dr. Schonfeld confirmed the suspicions of 47 individuals, whom he diagnosed with asbestos-related diseases. These 47 became the plaintiffs in the four cases the Supreme Court has heard on this appeal. The plaintiffs designated Dr. Schonfeld as their medical expert. Believing that Dr. Schonfeld's lack of Utah credentials rendered him unqualified to testify as a medical expert, the defendants moved for summary judgment. The District Court (3rd District, Salt Lake) granted the defendants the relief they sought. The district court concluded as a matter of law that Utah's medical licensing statutes did not permit a medical expert to conduct pre-testimony examinations. The plaintiffs appealed. The Supreme Court held that Dr. Schonfeld did not violate the Utah Medical Practice Act when he conducted pre-testimony examinations of the plaintiffs and that, therefore, Dr. Schonfeld did not disqualify himself from testifying by performing the examinations. The Supreme Court accordingly reversed the district court's grant of summary judgment and remanded for further proceedings consistent with the principles established in this opinion. Gilbert L. Purcell of Novato, Calif., represented John Carbaugh and Dixie Carbaugh. Patricia W. Christensen, Salt Lake City, represented Asbestos Corporation Ltd. and other defendants. ASBESTOS LITIGATION: Court OKs Ruling in Favor of Quality, Econ ---------------------------------------------------------------- The Court of Appeals of Minnesota upheld a ruling of the Ramsey County District Court which granted summary judgment in favor of Quality Insulation Inc. and Econ Insulation Inc. in a third-party asbestos-related complaint filed by General Pipe Covering Inc. Judges Worke, Kalitowski, and Minge entered decision of Case No. A06-1623 on Aug. 21, 2007. James Strand was diagnosed with asbestosis as a result of his occupational exposure to asbestos. In 1990, he settled his workers' compensation claim with his former employers: including General Pipe, Quality Insulation, and Econ Insulation. His wife, Zoe Strand, was subsequently diagnosed with mesothelioma. In February 2005, the Strands filed a complaint against General Pipe asserting several causes of action and seeking compensation for damages sustained as a result of Mrs. Strand’s illness, allegedly caused by second- hand exposure to asbestos. In 2005, General Pipe served third-party complaints for contribution on Quality Insulation and Econ Insulation. In June 2005, Quality Insulation moved for summary judgment on the third-party claim or, in the alternative, severance of the third-party claims. Econ Insulation joined Quality's motion to sever. Following a hearing, the Ramsey County District Court granted Quality Insulation’s and Econ Insulation’s motion to sever the third-party complaints. However, the district court denied Quality Insulation's motion for summary judgment, concluding that General Pipe produced enough evidence to create a genuine issue of material fact for trial on its third-party contribution claim. In May 2005, the Strands served a direct complaint against Quality Insulation for Mrs. Strand’s illness. However, contrary to General Pipe's assertion, this complaint was subsequently withdrawn without prejudice. Meanwhile, the Strands' direct claims against General Pipe were expedited. But before trial, on July 21, 2005, General Pipe entered into a "NAIG/PIERRINGER RELEASE AND SETTLEMENT AGREEMENT" with the Strands. In exchange for General Pipe's payment of US$289,999.99, the Strands released any and all claims against General Pipe, and also any and all claims against Quality Insulation and Econ Insulation. The Strands also agreed to indemnify General Pipe, Quality Insulation and Econ Insulation for any future claims resulting from Mrs. Strand’s mesothelioma. On March 10, 2006, Quality Insulation and Econ Insulation moved for summary judgment on General Pipe's third-party contribution claim, arguing that because General Pipe entered into a Pierringer settlement with the Strands and settled for its share of liability. The district court granted Quality Insulation's and Econ Insulation's motion and dismissed General Pipe's third-party contribution claim with prejudice. This appeal followed. General Pipe challenged the District Court’s dismissal of its third-party complaint for contribution from respondents, arguing that the district court erred in dismissing the third-party complaints. Because the Appeals Court concluded that the district court did not err in dismissing the complaints, the Appeals Court affirmed. Byron M. Peterson, Tomsche, Sonnesyn & Tomsche, P.A., Golden Valley, Minn., represented General Pipe Covering Inc. Paul E.D. Darsow, Arthur, Chapman, Kettering, Smetak & Pikala, P.A., Minneapolis, represented Quality Insulation Inc. Susan M. Hansen, Brownson & Ballou, PLLP, Minneapolis represented Econ Insulation Inc. ASBESTOS LITIGATION: Court Upholds Ruling in John Crane’s Favor ---------------------------------------------------------------- The Court of Appeal, 1st District, Division 5, California, upheld a ruling in favor of John Crane Inc., in an asbestos-related action filed by Gloria Peterson and her husband, John Peterson. Judges Needham, Gemello, and Jones entered decision of Case No. A115079 on Aug. 23, 2007. The Petersons, in San Francisco County Superior Court, filed a lawsuit in April 1999 alleging that Mr. Peterson’s asbestosis and lung cancer were asbestos-related. The Petersons sued manufacturers, suppliers, and users of asbestos products for his injuries, under legal theories including negligence, intentional tort, strict liability, and products liability, alleging that the defendants' activities and products exposed Mr. Peterson to asbestos. The Petersons sued for Mrs. Peterson’s loss of consortium. A first amended complaint for personal injury and loss of consortium was filed in July 1999. Mr. Peterson died in October 1999, while the litigation was pending. In March 2000, the court granted Mrs. Peterson's motion to appoint her as the successor-in-interest to Mr. Peterson’s claims and granted her leave to file a second amended complaint. In her "SECOND AMENDED COMPLAINT FOR SURVIVAL, LOSS OF CONSORTIUM, WRONGFUL DEATH-ASBESTOS," Mrs. Peterson continued to pursue her individual claim for loss of consortium, added survivor claims as Mr. Peterson’s successor-in- interest, and also added wrongful death claims as Mr. Peterson’s legal heir. The case proceeded to trial by jury. The jury returned a verdict of no liability on the part of John Crane. At a hearing on Mrs. Peterson's motion to tax costs on Aug. 3, 2005, Mrs. Peterson's counsel attacked the second section 998 offer. The trial court found that John Crane's second section 998 offer was valid and awarded John Crane about US$72,000 in costs, including nearly US$50,000 in expert witness fees. Judgment was entered in accord with the jury's special verdict and the trial court's award of costs to John Crane. This appeal followed. Mrs. Peterson contended that the court erred in awarding expert witness fees to John Crane on the grounds that: (1) John Crane’s section 998 offer was invalid because Mrs. Peterson's prosecution of claims in multiple legal capacities made her "multiple plaintiffs" for purposes of determining the validity of a settlement offer under section 998; and (2) The court did not consider the parties' relative economic resources in deciding whether the cost award was reasonable. Mrs. Peterson had not established that the amount of the trial court's award of expert witness fees was unreasonable. The Appeals Court affirmed the judgment. Brayton & Purcell (Alan R. Brayton, Gilbert L. Purcell, Lloyd F. LeRoy, and Mary E. Pougiales) represented Gloria Peterson. Hassard Bonnington, Philip S. Ward, Barry N. Endick, represented John Crane Inc. ASBESTOS LITIGATION: Indian Court OKs Dismantling of Cruise Ship ---------------------------------------------------------------- India’s Supreme Court gave permission on Sept. 11, 2007 for shipbreakers to dismantle a former French cruise liner, the Blue Lady, which, environmentalists say, is lined with some 1,200 tons of hazards, including asbestos, Agence France-Presse reports. The ruling follows a year of controversy over the fate of the ship, originally launched in 1960 as the SS France. A court official said that Justices Arijit Pasayat and S.H. Kapadia gave permission to dismantle the ship at the western Alang shipyard on the basis of a technical report submitted by an expert committee appointed by it. Environmental activists said that the September 11 order overlooked a 2004 court ruling. "The court had then ordered that the ship be decontaminated before it was dismantled," said Ingrid Jenssen of the Indian Platform on Shipbreaking, an umbrella group including Green Peace and the Ban Asbestos Network. "Even today, there is no full inventory of what is on board," Ms. Jenssen added, saying that the boat contained heavy metals and radioactive elements besides 1,200 tons of asbestos and carcinogenic polychlorinated biphenyls. In February 2006, the boat was turned away by Bangladesh on the grounds that its contents were too toxic for it to be dismantled there. However, the Blue Lady was allowed into Indian waters in August 2006 and is currently beached 1,200 meters (4,000 feet) off the Alang coast, 200 kilometers (160 miles) northwest of India's financial center Mumbai. Environmental and labor rights groups have been battling lawyers representing workers at India's Alang shipbreaking yard in coastal Gujarat state over the future of the boat. The workers say dismantling the vessel will bring much needed work while Greenpeace had said breaking up the ship before decontamination would endanger laborers’ health. Greenpeace has included the SS Norway, as the Blue Lady was known before its sale in 1979, on a watch list of 50 vessels which it said it feared would not be decontaminated before being scrapped. Environmental groups say one in six workers at the world's biggest shipbreaking yard at Alang suffers from asbestosis. For major industrialized nations, safety and environmental laws make shipbreaking work hugely costly. However, in the developing world, lax enforcement of safety and environmental rules and a vast supply of cheap labor can make shipbreaking a profitable proposition. ASBESTOS LITIGATION: N.H. Firms to Pay $90T for Removal Breaches ---------------------------------------------------------------- Kane Management Group LLC and 85 Industrial Park II LLC will pay US$90,000 in civil penalties for removing asbestos from an industrial building in Dover, N.H., according to a Sept. 7, 2007 press release of the New Hampshire Attorney General’s Office. The announcement was made by New Hampshire Attorney General Kelly A. Ayotte and Department of Environmental Services Assistant Commissioner Michael J. Walls on Sept. 7, 2007. In August 2002, DES learned that unlicensed workers hired by Kane were removing asbestos-containing flooring as part of a renovation project in the Dover property. State law requires that licensed abatement contractors be hired to remove asbestos and that DES be notified before any asbestos removal begins. After confirming that Kane had hired an unlicensed demolition company and had failed to notify the state, DES required the project to be completed by a licensed abatement contractor. In February 2006, the Attorney General filed an enforcement action against defendants. Under the terms of a settlement approved by the Strafford County Superior Court, Kane will pay US$90,000 in civil penalties, US$10,000 of which will fund air pollution and climate change education and outreach projects at the Seacoast Science Center in Rye, N.H. Attorney General Ayotte commented, "This case demonstrates the importance of complying with state laws that protect workers, the public and the environment from potential asbestos risks. While the defendants cooperated in resolving this case, their failure to follow state law on asbestos removal warrants the monetary penalty required under the settlement." Assistant Commissioner Walls added, "Property owners and building contractors should conduct an asbestos survey before starting any renovation or demolition work. If asbestos is present, it should be removed by trained and licensed abatement contractors. These requirements are meant to prevent release of asbestos fibers into the environment and the exposure of unprotected workers to asbestos-contaminated material." ASBESTOS LITIGATION: Inquest Relates Engineer’s Death to Hazards ---------------------------------------------------------------- Lynn County Court, on Sept. 6, 2007, heard that the death of retired heating engineer James Pickering was related to asbestos exposure, Lynn News reports. The 73-year-old Mr. Pickering was exposed to asbestos in ventilation units and corridors during his working career. Mr. Pickering, of Goodwins Road, Lynn, U.K., was diagnosed with malignant mesothelioma after being admitted to a hospital in Lewisham, London, on May 18, 2007, complaining of a shortness of breath and coughs. Mr. Pickering’s condition deteriorated over the following days and he was transferred to the hospital's coronary care unit. Biopsy results then revealed a history of mesothelioma. He died on July 6, 2007. Mr. Pickering's son, John, told the inquest his father worked as a heating engineer throughout his career and was employed by the former London County and Greater London Councils, before joining Lewisham Council until his retirement. The younger Mr. Pickering added, "When he was diagnosed he did mention instances where exposure to asbestos may have happened. He had to clear some vents of asbestos, but that was before it was widely known it was harmful." He also said his father had been responsible for clearing some corridors which also contained asbestos. ASBESTOS LITIGATION: No Asbestos Found in Virgin Islands School ---------------------------------------------------------------- Safety inspectors, on Sept. 5, 2007, checked the gym of the Charlotte Amalie High School in St. Thomas, U.S. Virgin Islands, for asbestos, but they found no outward signs of the substance, The Virgin Islands Daily News reports. Representatives from the V.I. Labor Department's Division of Occupational Safety and Health, which monitors public workplace safety in the territory, began investigating ongoing construction work at the gymnasium after a teacher, Al Richards, expressed health concerns about work on flooring in part of the building. Mr. Richards said that construction workers had told him previously that the decades-old flooring squares could contain asbestos. Mr. Richards raised concerns after workers removed some of the flooring in one of the gymnasium offices while preparing to retile the floor. The workers have since laid new tile on top of the old flooring that remained. V.I. Department of Education officials, the project's contractor and safety inspectors were unable to determine if the tile contained asbestos. Safety inspectors made an initial visit to the school late and collected a piece of the tiling. On Sept. 5, 2007, they returned to make a more thorough inspection, which included closely examining all floors, ceilings, tiles and walls in the facility for any asbestos. Deputy Labor Commissioner Glen Smith said the inspectors found no signs of asbestos. He added that a report will be prepared in the coming days, however, that will in part recommend that the V.I. Department of Education or the high school pay for the tile to be tested. Mr. Smith added that the department also faces citations for minor safety violations. Work on the gym is nearly finished, and students have been able to use the facility since they returned to school in August 2007. ASBESTOS LITIGATION: Trial to Test Drug’s Effect on Mesothelioma ---------------------------------------------------------------- A phase III clinical trial is underway in Maryland, at the National Institutes of Health Clinical Center, to determine how effective vorinostat is at treating patients with pleural malignant mesothelioma, according to a press release, posted on PRWeb, dated Sept. 6, 2007. Research is underway specifically about Vorinostat, also known as suberoylanilide hydroxamic acid, is marketed under the brand name Zolinza. This mesothelioma clinical trial will try to ascertain the level of toxicity as well as any side effects that are occasioned in patients who have been prescribed Vorinostat (Zolinza) and to compare these results against those of patients who have been administered a placebo. The title for this ongoing project is "A Phase III, Randomized, Double-Blind, Placebo-Controlled Trial of Oral Suberoylanilide Hydroxamic Acid (L- 001079038) in Patients With Advanced Malignant Pleural Mesothelioma Previously Treated With Systemic Chemotherapy." Raffit Hassan, M.D., is the protocol chair for this study. The expected enrollment for the mesothelioma clinical trial study is 660 mesothelioma patients. All patients in this malignant mesothelioma research study must have a histologically or cytologically confirmed diagnosis of pleural mesothelioma, which may be of the epithelial, sarcomatoid or mixed sub-type. All patients must also have previously gone through one or two standard systemic mesothelioma treatments that included pemetrexed disodium and either cisplatin or carboplatin. Researches on behalf of the mesothelioma clinical trial hope for some positive results and low side effects in the trial study of Vorinostat. ASBESTOS LITIGATION: Asbestos Found in Areas of Binghamton Univ. ---------------------------------------------------------------- Several portions of the State University of New York at Binghamton, commonly known as Binghamton University, are found to have asbestos, Pipe Dream reports. These portions are: the Old University Union, the Engineering Building, some dormitories and other buildings on campus. The material is still in the Glenn G. Bartle Library, the Fine Arts Building, Dickinson Community, College-in-the-Woods and the East Gym, to name a few. John Price, BU’s asbestos coordinator, said, “Students are never at risk.” To prevent asbestos particles from entering the air, the University follows strict federal and state regulations and has been conducting asbestos removal projects. BU is one of the only campuses in the State University of New York system that has an asbestos coordinator. Additionally, the campus’s asbestos is concealed. Either asbestos is meshed in to the matrix of a building material or it is “encapsulated,” said Stephen Endres, training coordinator and industrial hygienist for Binghamton’s Office of Environmental Health and Safety. Karen Fennie, Physical Facilities spokeswoman, said that most of the asbestos that remains on campus is in older buildings that were constructed in an era — generally the 1960s — in which the use of asbestos was allowed. Workers removed asbestos from College-in-the Woods’s Onondaga Hall this summer by scraping the ceilings and removing floor tiling, allowing renovation and a fire alarm upgrade. The Engineering Building has been undergoing abatement. Removal of asbestos from the library began in 1999. Workers gutted, rebuilt and removed asbestos from the fourth and second floors, forcing the University to temporarily relocate up to 200,000 volumes. The University has begun removing asbestos from the roof of the Old Union, but more of the material rests in the bowling alley, ceilings, floor tiles, pipe fittings and fire doors. Asbestos abatement at the Old Union and in CIW will resume after commencement in May 2008. ASBESTOS LITIGATION: Court Affirms THAN’s Summary Judgment Move ---------------------------------------------------------------- The Court of Appeals of Indiana reversed a Marion Superior Court ruling, which denied TH Agriculture and Nutrition LLC’s (THAN) motion for summary judgment, in an asbestos-related action filed by Bill Z. Littlefield. Judges Najam, Riley, and Barnes entered decision of Case No. 49A05-0608-CV- 441 on Aug. 31, 2007. THAN was formed in 1998 and is the successor by merger to TH Agriculture and Nutrition Inc., formerly known as Thompson-Hayward Chemical Co. (THCC), which neither mined asbestos nor manufactured asbestos-containing products. However, on behalf of Carey-Canadian Mines Ltd., THCC distributed to portions of the United States various grades of chrysotile asbestos fibers. Those distributions all occurred between April 1, 1960 and June 1, 1980. Between April 1963 and May 1967, THCC maintained a distribution facility in Indianapolis. Between June 1, 1976 and Aug. 1, 1982, Mr. Littlefield was exposed to raw asbestos fibers while working in Indiana. On July 17, 2004, he was diagnosed with mesothelioma as a result of his asbestos exposure. At no time before that diagnosis did he have "any reason to believe [he was] exposed to asbestos." On Jan. 10, 2005, Mr. Littlefield filed a complaint for damages naming numerous defendants, including THAN, in the Marion Superior Court. On May 26, 2005, Mr. Littlefield filed his First Amended Verified Initial Disclosure Statement (VIDS). On June 7, 2005, he filed his Fourth Amended VIDS. Mr. Littlefield died on July 25, 2005 and Frank Akaiwa was substituted as Mr. Littlefield's representative. On Dec. 21, 2005, Mr. Akaiwa filed an amended complaint, alleging that THAN sold asbestos fiber to one or more of the product defendants, who then incorporated that fiber into their products and exposed Mr. Littlefield to the asbestos. On May 2, 2006, THAN filed a Motion for Summary Judgment on the amended complaint. On June 23, 2006, the trial court generally denied THAN's motion. The court certified its order for interlocutory appeal, which the Appeals Court accepted. THAN brought this interlocutory appeal from the trial court’s denial of its motion for summary judgment on Mr. Akaiwa’s claims. The Appeals Court addressed a single dispositive issue on review, namely, whether the trial court properly determined that the 10-year statute of repose contained in Indiana Code Section 34-20-3-1 does not apply to Mr. Akaiwa's cause of action. In sum, the Appeals Court reversed the trial court's denial of THAN's motion for summary judgment. Cynthia M. Locke, William N. Ivers, Stewart & Irwin, P.C., Indianapolis, represented TH Agriculture and Nutrition LLC. Robert E. Paul of Paul, Reich & Myers, P.C., Philadelphia, represented Frank Akaiwa, Executor of the Estate of Bill Z. Littlefield. ASBESTOS LITIGATION: Court Affirms ACL’s Summary Judgment Motion ---------------------------------------------------------------- The Court of Appeals of Indiana reversed a Marion Superior Court ruling, which denied Asbestos Corporation Ltd.’s (ACL) motion for summary judgment, in an asbestos-related action filed by Bill Z. Littlefield. Judges Najam, Riley, and Barnes entered decision of Case No. No. 49A02-0608- CV-676 on Aug. 31, 2007. ACL is a miner of raw asbestos fibers and based at Thetford Mines, Quebec. After mining the raw asbestos fibers, ACL sells the fibers to manufacturers of asbestos-containing products. ACL itself does not manufacture products containing asbestos. Between September 1980 and August 1982, Mr. Littlefield was exposed to raw asbestos fibers while working as an electrical contractor at Everett Electric. On July 17, 2004, he was diagnosed with mesothelioma as a result of his asbestos exposure. On Jan. 7, 2005, Mr. Littlefield filed a complaint for damages naming numerous defendants, including ACL. During his ensuing deposition, Mr. Littlefield, through his attorney, listed a number of businesses that had manufactured asbestos-containing products used by Mr. Littlefield. Neither Mr. Littlefield nor his attorney identified ACL, but Mr. Littlefield did testify that he had worked with asbestos-containing products of General Electric (GE) and ITE/BBC Brown Boveri (ITE), to which ACL, at various times, had sold raw asbestos fibers. Mr. Littlefield died on July 25, 2005 and Frank Akaiwa was substituted as Mr. Littlefield's representative. In November 2005, ACL filed two motions for summary judgment, arguing that it was entitled to relief under the statute of repose contained in Indiana Code Section 34-20-3-1 and that Mr. Akaiwa had failed to produce evidence of product identification and proximate causation. On June 23, 2006 and Aug. 14, 2006, the trial court generally denied ACL's motions. The court certified its orders for interlocutory appeal, which the Appeals Court accepted. In response to ACL's motion for summary judgment, and on appeal, Mr. Akaiwa maintained that Mr. Littlefield was exposed to ACL asbestos through the products of GE and/or ITE. In its motion for summary judgment on the issue of exposure, ACL designated to the trial court portions of Mr. Littlefield's deposition testimony. With respect to both the products of GE and of ITE, Mr. Littlefield testified that he did not recall either being exposed to or inhaling dust while working with, or otherwise being around, those products. And GE and ITE are the only stipulated defendants to which Mr. Akaiwa alleged ACL sold raw asbestos. Thus, the Appeals Court did not consider the additional evidence proffered by Mr. Akaiwa on appeal. ACL brought this interlocutory appeal from the trial court's denial of its motions for summary judgment on Mr. Akaiwa’s claims. The Appeals Court addressed a single dispositive issue on review, namely, whether Mr. Akaiwa presented sufficient evidence of exposure to ACL asbestos to survive summary judgment. The Appeals Court reversed. Jon L. Williams, Williams & Douglas, Indianapolis, represented Asbestos Corporation Ltd. Robert E. Paul, Paul, Reich & Myers, P.C., Philadelphia, represented Frank Akaiwa, Executor of the Estate of Bill Z. Littlefield. ASBESTOS LITIGATION: Int’l. Experts Urge Global Ban on Asbestos ---------------------------------------------------------------- International public health experts called for a global ban on the use of asbestos at the World Social Security Forum on Sept. 12, 2007 in Moscow, Agence France-Presse reports. Forum speaker Annie Leprince, a medical expert from the National Research and Safety Institute in France, said, “Asbestos is the source of a major humanitarian crisis on a global scale.” Ms. Leprince said that up to 100,000 people die every year of asbestos- related diseases and the mineral was “a serial killer” that would also have a major economic impact on social security systems. Hans-Horst Konkolewsky, head of the International Social Security Association, said, “The asbestos problem is really threatening the stability of social security. The impact is simply so devastating.” However, experts from Russia, the world’s biggest producer of asbestos, protested against the call for a ban and played down the health risks of chrysotile, a type of asbestos produced in Russia. The head of a Russian asbestos producers trade union also warned of the labor impact of a global ban, saying up to 500,000 workers in Russia alone could lose their jobs as a result. Russia makes up for by far the largest share, around 40 percent, of world asbestos production. Other major producers include Brazil, Canada, China, and Kazakhstan. Forty countries, including the entire European Union, have banned asbestos. ASBESTOS LITIGATION: Iowa DNR Review Clears City in Hazard Probe ---------------------------------------------------------------- The Iowa Department of Natural Resources, on Sept. 11, 2007, said that allegations that contractors hired by the city of Burlington, Iowa, illegally disposed of asbestos from the former Flint Hills Manor are false, The Hawk Eye reports. According to City Manager Bruce Slagle, 49 buildings on the Manor site were tested for asbestos by licensed contractors before demolition. Materials that were identified to contain asbestos were hauled to the Des Moines County landfill, he added. DNR officials reviewed landfill records, results of an asbestos abatement survey commissioned by the city earlier this year and documents on asbestos removal from the Manor site. The inquiry was spurred by a complaint lodged in August 2007 by Burlington City Council candidate Leonard Johnson. After reviewing documents provided by the city, DNR environmental specialist Brent Earley said asbestos removed from the Manor site was done so according to environmental guidelines. However, in a letter to the city, Mr. Earley warned officials that failure to comply with DNR rules on future projects will result in legal action. Under federal guidelines, asbestos must be wetted down in order to prevent particles from getting into the air and transported in a covered vehicle, which Mr. Johnson alleges was not done. Marion Burnside, of the state's air quality bureau in Des Moines, said it is nearly impossible to identify asbestos without having the suspect material tested in a laboratory. In August 2007, the DNR investigated the dumping of demolition debris from the Manor at a private site off Plank Road. In its investigation, the DNR determined Fye Excavating of Sperry dumped material considered to be dirty debris on private property owned by Dan Buck of Burlington. Fye was hired by the city to demolish several buildings at the Manor site and to remove demolition debris as part of a commercial redevelopment project that began in 2006. Clean debris - including rock, brick, concrete, and related demolition rubble - can be deposited at private sites under DNR guidelines. In Fye's case, most debris dumped at the Plank Road site was considered clean with the exception of some loads that contained wood. Since Fye later removed 219 tons of noncompliant material from the dump site, DNR officials have declined to take legal action against either the city of Burlington or Fye. ASBESTOS LITIGATION: U.K. Mechanic Seeks GBP200T in Compensation ---------------------------------------------------------------- Aytar Kalsi, a mechanic suffering from mesothelioma, has launched a legal campaign for up to GBP200,000 in compensation at London’s High Court, icCoventry.co.uk. The 57-year-old Mr. Kalsi claims that his mesothelioma was caused by asbestos while working in Ansley, Warwickshire, England, U.K. Mr. Kalsi is claiming damages from the Department for Business, Enterprise and Regulatory Reform, whom he blames for his condition. The writ, issued in London’s High Court, says Mr. Kalsi developed mesothelioma after being exposed to asbestos when he worked as a mechanic between 1967 and 1977 at the former Department of Trade and Industry's Coventry Colliery and at the Ansley workshop, near Nuneaton. The writ claims the workshop, which serviced the mines and carried out work on mine equipment such as roof supports, contained enormous amounts of asbestos sheeting and insulation. According to the writ, the roof was lined with blue asbestos, and the girders were covered in sprayed asbestos insulation which was fluffy and powdery to the touch. Mr. Kalsi says the workshop was heavily contaminated with asbestos because of the movement of cranes and from birds in the roof, so blue asbestos fell on work surfaces and floors, and he and his colleagues often brushed asbestos dust from their work areas. It is alleged that although contractors were brought in to remove blue asbestos in the 1970s, they left asbestos dust and debris, which Mr. Kalsi and his colleagues cleaned up. Mr. Kalsi first suffered from shoulder pain and breathlessness in 2005, and says his condition has deteriorated since then. He accuses the department of negligence and breach of statutory duty and says this caused his illness. Mr. Kalsi says that the department negligently failed to provide a safe place or system of work, failed to warn him of the dangers of asbestos, and failed to keep his workplace properly ventilated. Insurers for the department are said to have admitted liability on July 4, 2007 but the two sides are thought unable to agree on how much compensation Mr. Kalsi should receive. ASBESTOS LITIGATION: Crew Claims Exposure at Staten Borough Hall ---------------------------------------------------------------- Crews working on the renovation of Staten Island, N.Y.’s century-old Borough Hall, claimed exposure to asbestos in a lawsuit filed on Sept. 10, 2007, The New York Times reports. The crew — six state prison inmates and the two correction officers supervising them — yanked up carpet and floor tile with hands and ice scrapers and hauling at least a dozen plastic garbage bags of debris to the curb. However, several hours into the job, the correction officers say, the borough’s environmental engineer told them to stop because he believed the floor tiles they were ripping out contained asbestos. According to court papers, a tile from the floor was found to contain dangerously high levels of asbestos — more than four times the threshold that triggers the city’s requirements that the material be removed only by licensed asbestos engineers using high-tech equipment and rigorous disposal protocols. The correction officers, from the Arthur Kill Correctional Facility on Staten Island, say that they and the inmates might have been exposed to asbestos for nearly a year. They had been working in the headquarters of the Topographical Unit, on the ground floor of Borough Hall, since October 2006 as several contractors tore up most of the rest of the floor tile in the room, and no one had warned them of any danger. On Sept. 10, 2007, the officers filed a notice of intent to sue the city for damages. A judge in State Supreme Court on Staten Island is scheduled to hear their request on Sept. 12, 2007, to appoint an independent asbestos auditor and order an investigation of the project. The inmates have expressed interest in joining the suit, said the correction officers’ lawyer, Bernadette Panzella. The borough’s environmental engineer, Nicholas Dmytryszyn, referred questions about the project to the city’s Law Department, which would not comment, citing pending litigation. According to court papers, the other correction officer on the Borough Hall job, Francis J. Duffy, took a chunk of carpet and tile to a state-licensed environmental testing company, Safety Environmental. The company found that the sample was 4.3 percent asbestos by weight. According to city and state law, any material with more than one percent asbestos on a building project can be removed by licensed asbestos engineers using a host of other precautions. Paul A. Zanelli, a correction officer since 1981, said that after he reported the floor-tile incident to his supervisor, he was advised not to take the crew back to Borough Hall. ASBESTOS LITIGATION: Hazard Delays Start of Term in U.K. School ---------------------------------------------------------------- Burraton Community Primary School, in Cornwall, England, U.K., was forced to delay the start of a new term after asbestos was found during work to replace the school’s heating system, Cornish Guardian reports. The school was closed on Sept. 7, 2007, Sept. 10, 2007, and Sept. 11, 2007, while routine tests were carried out. However, the school has been given the all clear. It reopens on Sept. 12, 2007. ASBESTOS LITIGATION: Boston Manhole Explosion Could Pose Hazards ---------------------------------------------------------------- Fire officials say that a Sept. 12, 2007 manhole explosion in downtown Boston injured four persons and sprayed them with steaming water that may have contained asbestos, Boston Herald reports. The accident, which happened at about noon at the corners of Otis and Summer streets, took place adjacent to a building that was being worked on at the time, said Lt. Christopher Stratton, spokesman for Boston Emergency Medical Services. EMS was called to the scene by the fire department when it became clear that the explosion was a hazardous material incident. EMS assisted with the decontamination and medically monitored firefighters involved, as is routine with hazmat incidents, Mr. Stratton said. Mr. Stratton said that four people were decontaminated at the scene and then transported to local hospitals with non-life threatening injuries. It appeared that three of those treated were energy company employees and one may have been a courier in the area when debris started flying, he added. It was not immediately clear what energy company employed the workers. Scott Salman, Boston Fire Department spokesman, said that the water may have contained asbestos. He said he believes it was a steam pipe that burst and not a manhole. ASBESTOS LITIGATION: Indiana Court Favors THAN in Nevius Action ---------------------------------------------------------------- The Court of Appeals of Indiana reversed a Marion Superior Court’s ruling, which denied TH Agriculture and Nutrition LLC’s motion for summary judgment in an asbestos-related action filed by Gary Nevius. Judges Najam, Riley, and Barnes entered decision of Case No. 49A02-0608-CV- 671 on Aug. 31, 2007. THAN was formed in 1998 and is the successor by merger to TH Agriculture and Nutrition Inc., formerly known as Thompson-Hayward Chemical Co. (THCC), which neither mined asbestos nor manufactured asbestos-containing products. However, on behalf of Carey-Canadian Mines Ltd., THCC distributed to portions of the United States various grades of chrysotile asbestos fibers. Those distributions all occurred between April 1, 1960, and June 1, 1980. Between April 1963 and May 1967, THCC maintained a distribution facility in Indianapolis. Between 1945 and the present, Mr. Nevius was exposed to raw asbestos fibers while working in Indiana. On March 4, 2004, he was diagnosed with mesothelioma as a result of his asbestos exposure. On March 11, 2005, Mr. Nevius filed a complaint for damages naming numerous defendants, including THAN. He did not testify about THAN during his ensuing deposition. On June 6, 2005, Mr. Nevius filed his Amended Verified Initial Disclosure Statement. Mr. Nevius died on July 23, 2005 and Charity Nevius was substituted as Gary's representative. On Sept. 29, 2005, she filed an amended complaint, alleging that THAN sold asbestos fiber to one or more of the product defendants, who then incorporated that fiber into their products and thereby exposed Mr. Nevius to asbestos. On May 4, 2006, THAN filed a Motion for Summary Judgment on the amended complaint. On June 23, the trial court generally denied THAN's motion. The court certified its order for interlocutory appeal, which the Appeals Court accepted. The Appeals Court addressed a single dispositive issue on review, namely, whether the trial court properly determined that the 10-year statute of repose contained in Indiana Code Section 34-20-3-1 did not apply to Mrs. Nevius's cause of action. In sum, the Appeals Court reversed the trial court's denial of THAN's motion for summary judgment. Cynthia M. Locke, William N. Ivers, Stewart & Irwin, P.C., Indianapolis, represented TH Agriculture and Nutrition LLC. Robert E. Paul, Paul, Reich & Myers, P.C., Philadelphia, represented Charity Nevius, for the Estate of Gary Nevius. ASBESTOS LITIGATION: Court Reverses Ruling in Sun Chem.’s Favor ---------------------------------------------------------------- The Court of Appeals of Indiana reversed a Marion Superior Court’s ruling, which denied Sun Chemical’s motion for summary judgment, in an asbestos- related lawsuit filed Bill Z. Littlefield. Judges Najam, Riley, and Barnes entered decision of Case No. 49A04-0608-CV- 439 on Aug. 31, 2007. Between 1980 and 1982, Mr. Littlefield worked with wall receptacles and light switches at Everett Electric in Fairmount, Ind. In doing so, he used a plastic-like sealant for insulation of circuitry. In or about that time frame, he was exposed to asbestos. On July 17, 2004, Mr. Littlefield was diagnosed with mesothelioma as. On Jan. 10, 2005, he filed a complaint for damages naming numerous defendants, including Sun. Sun did not mine or sell commercial asbestos, nor did Sun manufacture, distribute, or install asbestos or asbestos-containing products. Mr. Littlefield died on July 25, 2005, and Frank Akaiwa was substituted as Mr. Littlefield's representative. Following discovery, Sun moved for summary judgment. The trial court generally denied Sun's motions. The court certified its order for interlocutory appeal, which the Appeals Court accepted. The Appeals Court addressed a single dispositive issue on review, namely, whether the trial court properly determined that the 10-year statute of repose contained in Indiana Code Section 34-20-3-1 did not apply to Mr. Akaiwa's cause of action. In sum, the Appeals Court reversed the trial court's denial of Sun's motion for summary judgment. Susan E. Mehringer, Daun A. Weliever, Sonia C. Das, Lewis Wagner, LLP, Indianapolis, represented Sun Chemical. ASBESTOS LITIGATION: MassDEP Issues $13T Penalty to 2 Companies ---------------------------------------------------------------- The Department of Environmental Protection has issued a US$13,000 penalty to Dave Wickles Trucking (US$8,000) and S&J Land Trust (US$5,000) for improperly handling asbestos during a demolition at a River Road site in Hadley, Mass., Amherst Bulletin reports. Hatfield, Mass.-based Dave Wickles Trucking and Windsor, Conn.-based S&J Land Trust were fined after DEP inspectors found remains of asbestos in the basement of a demolished one-story house and in an open-top container on Aug. 30, 2006. Some of the materials found indicated that not all asbestos had been removed from the home before its demolition, though the actual amount of asbestos was not quantified. DEP spokeswoman Eva Tor said there is no evidence that anyone was exposed to or injured by the asbestos, but the risk was real. Both fines will be reduced by US$2,000 if no further violations occur during a one-year probationary period. Ms. Tor said Wickles and S&J Land Trust both entered into consent agreements and cleaned up the asbestos. In a prepared statement, Michael Gorski, director of the DEP's western regional office, said those undertaking such projects should hire licensed asbestos inspectors. Ms. Tor said the random inspection that led to the discovery is part of educating contractors, building inspectors and homeowners about the need to get asbestos out of a home when it is being demolished. Fines collected by the DEP go into the state's general fund. ASBESTOS ALERT: Ind. Court Affirms DAP’s Summary Judgment Motion ---------------------------------------------------------------- The Court of Appeals of Indiana reversed a Marion Superior Court ruling, which denied DAP Inc.’s motion for summary judgment, in an asbestos-related action filed by Bill Z. Littlefield. Judges Najam, Riley, and Barnes entered decision of Case No. 49A02-0608-CV- 670 on Aug. 31, 2007. Between 1960 and 1977, DAP manufactured an asphalt sealant, known as "Black- Tite Roof Sealant," and an elastic glazing compound, known as "33 Glazing." Through 1977, both of those products contained asbestos fibers. However, DAP did not mine or sell raw asbestos. Between 1980 and 1982, Mr. Littlefield used a "black textured sealant" and a silicone sealant made by DAP while working for Everett Electric in Fairmount, Ind. However, those sealants did not create any dust to which Mr. Littlefield could have been exposed. Mr. Littlefield first developed symptoms consistent with asbestos exposure in June 2004, which he believed to be bronchitis at that time. However, on July 17, 2004, Mr. Littlefield was diagnosed with mesothelioma as a result of his asbestos exposure. On Jan. 10, 2005, he filed a complaint for damages naming numerous defendants, including DAP, in Marion Superior Court. Mr. Littlefield died on July 25, 2005 and Frank Akaiwa was substituted as Mr. Littlefield's representative. Following discovery, DAP moved for summary judgment. The trial court generally denied DAP's motions and certified its order for interlocutory appeal, which the Appeals Court accepted. DAP brought this interlocutory appeal from the trial court's denial of its motion for summary judgment on Mr. Akaiwa’s claims. The Appeals Court addressed a single dispositive issue on review, namely, whether the trial court properly determined that the 10-year statute of repose contained in Indiana Code Section 34-20-3-1 does not apply to Mr. Akaiwa's cause of action. In sum, the Appeals Court reversed the trial court's denial of DAP's motion for summary judgment. Sonia C. Das, Susan E. Mehringer, Daun A. Weliever, Lewis Wagner, LLP, Indianapolis, represented DAP Inc. COMPANY PROFILE DAP Products Inc. 2400 Boston Street Suite 200 Baltimore, Md. Phone Number: (410) 675-2100 Toll Free: (800) 543-3840 Facsimile: (410) 534-2650 Description: The Company markets reliable, long-lasting products for contractors and do-it- yourselfers. The Company markets caulks, sealants, adhesives, insulating foam, spackling, glazing, and other general patch and repair products. New Securities Fraud Cases FREMONT GENERAL: Susman Godfrey, Kahn Gauthier File Lawsuit ----------------------------------------------------------- Susman Godfrey L.L.P. and Kahn Gauthier Swick, LLC filed a class action against Fremont General Corp. (NYSE: FMT) in the U.S. District Court for the Central District of California, on behalf of shareholders who purchased the common stock of the company between May 9, 2006, and February 27, 2007, inclusive. No class has yet been certified in this action. Fremont and certain of its officers and directors are charged with making a series of materially false and misleading statements related to the Company's business and operations in violation of the Securities Exchange Act of 1934. The Complaint charges that throughout the Class Period, Fremont presented itself as a company that was well-equipped to manage a large, multi-billion- dollar portfolio of sub-prime real estate loans. Fremont repeatedly stated that the Company maintained systems and procedures to monitor the quality and performance of these loans -- including the maintenance of loan loss reserves sufficient to cover foreseeable losses expected in its loan portfolio, relative to market conditions. At the end of the Class Period, the truth began to emerge that, in fact, Fremont had engaged in unsafe and unsound business practices that negatively impacted its business. On February 27, 2007, and in the following days, shortly after certain officers and directors liquidated millions of dollars of their personally held shares, the Company disclosed: -- Fremont could not issue its financial statements for the last quarter and full year of 2006; -- The Federal Deposit Insurance Corporation had determined that the Company had engaged in unsafe and unsound banking practices and had committed violations of law or regulations; -- Fremont would be forced to abandon the sub-prime lending market; and -- Fremont's auditors had refused to issue an auditor's report on the Company's 2006 financial statements. Following these disclosures, Fremont's stock price sharply declined over the course of several trading days -- reaching a new 52 week low and losing over 50% in market value in a very short period of time. Lead plaintiff filing deadline is November 13, 2007. For more information, contact: Lewis Kahn, Esq. Kahn Gauthier Swick, LLC Toll free: 1-866-467-1400, ext. 100 E-mail: lewis.kahn@kgscounsel.com Web site: http://www.susmangodfrey.com http://www.kgscounsel.com JONES SODA: Scott+Scott Files Securities Fraud Suit in Wash. ------------------------------------------------------------- Scott+Scott, LLP filed a class action against Jones Soda Co. (Nasdaq:JSDA) and certain officers and directors in the U.S. District Court for the Western District of Washington on Sept. 12, 2007. The action is on behalf of Jones Soda common stock purchasers during the period March 9, 2007 through August 2, 2007, inclusive, for violations of the Securities Exchange Act of 1934. The complaint alleges that defendants made false and misleading statements and material omissions regarding the Company's business and operations and that, as a result, the price of the Company's securities was inflated during the Class Period, thereby harming investors. Lead plaintiff filing deadline is November 5, 2007. According to the complaint, during the Class Period, it is alleged that defendants made false and misleading statements the investment community regarding the Company's plans to execute product sales marketing initiatives, including a planned marketing blitz for Jones Soda product in 12 ounce cans. Following the Company's announcement that it would involve major national retail chains in the initiatives, the price of Jones Soda stock rose nearly $3 per share, to close at $17.13 per share on March 9, 2007. Following this, as the Company purported to execute these initiatives, the price of Jones Soda continued to rise, driving the price of Jones Soda stock as high as $31.54 per share on April 16, 2007. On August 2, 2007, the Company finally announced shocking news of unmet sales expectations. It is alleged that the Company actively concealed the fact that it failed to muster the marketing blitz and retailer distribution channels necessary to accomplish its new product launch, that major retailers had refused to dedicate shelf space to accommodate the new Jones Soda products and that undistributed new and existing product inventories had accumulated, to the extent that it had become uncertain as to how or when the Company would reduce or write off inventories to normal levels. On the news, the price of Jones Soda stock price tumbled $3.95 or 25.8%, closing on August 3, 2007 at $11.35 per share, on heightened volume of over 7 million shares, a loss of nearly $494.25 million in total market capitalization, as measured from the Class Period high of $31.54 on April 16, 2007. For more information, contact: Scott+Scott, LLP Phone: (800) 404-7770 (860) 537-5537 E-mail: scottlaw@scott-scott.com LUMINENT MORTGAGE: Berger & Montague Files Securities Suit ---------------------------------------------------------- The law firm Berger & Montague, P.C. commenced a securities class action in the U.S. District Court for the Northern District of California, on behalf of purchasers of the common stock of Luminent Mortgage Capital, Inc. from October 10, 2006 through August 6, 2007, inclusive. The Complaint charges Luminent and certain of its officers and directors with violations of the Securities Exchange Act of 1934. Luminent is a real estate investment trust that invests primarily in the United States agency and in other single-family, adjustable-rate, hybrid adjustable-rate and fixed- rate, mortgage-backed securities which it acquires in the secondary market. More specifically, the Complaint alleges that the Company failed to disclose and misrepresented the following material adverse facts which were known to defendants or recklessly disregarded by them: -- that the Company's investments were not "high quality" as previously represented; -- that the Company had failed to employ a disciplined and sophisticated hedging program for the interest rate and credit risks in its portfolio; -- as such, the Company would be unable to maintain its regular dividend payment to shareholders going forward; -- that the Company lacked adequate internal and financial controls; and -- that, as a result of the above, the Company's statements about its financial well-being and future business prospects were lacking in a reasonable basis when made. The Company shocked investors on August 6, 2007 when it announced it had experienced a significant increase in margin calls on its "highest quality assets," as well as a decrease on the financing advance rates provided by its lenders. As a result, the Company's Board of Directors suspended payment of the Company's second quarter cash dividends of $0.32 per share, cancelled the Company's second quarter 2007 earnings conference call scheduled for August 9, 2007 and stated that it would delay filing the Company's quarterly report with the SEC. On news of this, Luminent's shares fell $3.30, or over 75 percent, to close on August 7, 2007 at $1.08 per share. Then on August 7, 2007, the Company attempted to assure investors that it was "moving forward with its efforts to enhance its liquidity and preserve the value of its portfolio of its assets which is comprised substantially of high quality mortgage loans." Therein, the Company again stated that it had experienced a significant increase in margin calls on its "highest quality assets," as well as decrease on the financing advance rates provided by its lenders. On news of this, shares of Luminent fell again to close on August 8, 2007 at $0.95 per share, on unusually heavy trading volume. Lead plaintiff filing deadline is October 9, 2007. For more information, contact: Arthur Stock, Esq. Kimberly A. Walker Berger & Montague, P.C. Web site: http://www.bergermontague.com 1622 Locust Street Philadelphia, PA 19103 Phone: (888) 891-2289 Fax: (215) 875-5715 E-mail: investorprotect@bm.net ********* 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, 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 * * *