/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/071221.mbx C L A S S A C T I O N R E P O R T E R Friday, December 21, 2007, Vol. 9, No. 253 Headlines AMERICAN HONDA: Recalls Lawn Mowers Due to Laceration Hazard AUSTRALIA: Eyre Peninsula Bushfires Victims Plan to File Lawsuit BLUE SHIELD: Appeals Court Revives Suit Over Canceled Insurance CHASE HOME: Denied Summary Judgment in Cal. Loan Servicing Suit CHEVRON CORP: Computer Data on Ecuadorian Pollution Suit Stolen DUKE ENERGY: Discovery Continues in Ohio Air Pollution Lawsuit DUKE ENERGY: Time to Serve Canadian Environmental Suit Lapses DUKE ENERGY: Still Faces Environmental Emissions Suit in Canada DYNEX CAPITAL: Court Mulls Appeal on Securities Suit's Dismissal FORTUNE BRANDS: Nixed Underage Drinking Lawsuits Still on Appeal GLOBALSTAR INC: Faces Consolidated Securities Fraud Suit in N.Y. GLOBALSTAR INC: Calif. Consumer Fraud Suit Partly Dismissed GLOBALSTAR INC: New Rep Named in Canadian Consumer Fraud Suit GLS CAPITAL: Stay on Pa. Suit Over Delinquency Fees Continues HEALTHMARKETS INC: Securities Suit Settlement Hearing Set 2008 INFANTINO LLC: Recalls Infant Teethers Due to Choking Hazard INTELLIGROUP INC: Securities Fraud Lawsuit in N.J. Dismissed LA MODELS: Sued for Alleged Illegal “Service Charge” on Models MISSOURI: Wireless Phone Providers Settle Municipality Tax Suit MORGAN KEEGAN: Klayman & Toskes Files Suit Over Bond Funds MORTGAGE COS: Pa. Judge Refuses to Send Suit to Bankruptcy Court NEW YORK: Discovery Ongoing in Labor Laws Violation Lawsuit OHIO: Suit Alleges Group Premium Rating Plan Unconstitutional OMNIVISION TECHNOLOGIES: $14M Securities Suit Settlement Okayed SEARS ROEBUCK: Ill. Court Sets Jan. 10, 2008 Exclusion Deadline UNICO INC: Faces Calif. Suit Over “Illegal” Reverse Stock Split UNITED SCIENTIFIC: Recalls Magnets on Paint's High Lead Level VICTORIA'S SECRET: Recalls Stuffer Bear Due to Choking Hazard Asbestos Alerts ASBESTOS LITIGATION: Fisher Scientific Motion to Strike Affirmed ASBESTOS LITIGATION: Mass. Court Junks Gonzalez's Injury Claim ASBESTOS LITIGATION: Ohio Appeals Court Affirms Award for Marks ASBESTOS LITIGATION: Court Denies Remand Motion in Contois Case ASBESTOS LITIGATION: Mallinckrodt Faces 10,398 Pending Cases ASBESTOS LITIGATION: J.C. Penney Records $63M Liability at Feb. ASBESTOS LITIGATION: 48 Cos. Sued in Ill. For Laborer's Death ASBESTOS LITIGATION: Developer to Pay $450T Fine to Mo. State ASBESTOS LITIGATION: Ore. Hazard Cleanup Lacks Funding, EPA Says ASBESTOS LITIGATION: Ship-Breakers Mull “Outsourcing” of Removal ASBESTOS LITIGATION: Wear Valley Asbestos Scandal Probe Underway ASBESTOS LITIGATION: Australian Defense Officers' Health at Risk ASBESTOS LITIGATION: Board Ruling in Karolowski Action Affirmed ASBESTOS LITIGATION: Court Upholds Board Ruling in Colella Case ASBESTOS LITIGATION: Appeal Court Junks Rosen Suit v. University ASBESTOS LITIGATION: Appeals Court Favors Isley in Casper Action ASBESTOS LITIGATION: Court Issues Split Ruling in Brumley Action ASBESTOS LITIGATION: NL Ind. Granted Defense Verdict in Madison ASBESTOS LITIGATION: U.K. Widow Settles with Wiltshire Council ASBESTOS LITIGATION: Melbourne Power Station Set for Demolition ASBESTOS LITIGATION: 6 Scotland Families Flee Due to Poisoning ASBESTOS LITIGATION: EPA Records 16 Actions v. Maryland Schools ASBESTOS LITIGATION: ADAO Set to Reveal Product Testing Results ASBESTOS LITIGATION: Geologist Says Ariz. Mine is Asbestos-free ASBESTOS LITIGATION: Guyana Univ. Awaits Approval of Removal Bid ASBESTOS LITIGATION: U.K. School Closed After Routine Inspection ASBESTOS LITIGATION: Scottish Gov't. to Overturn Asbestos Ruling ASBESTOS LITIGATION: Texas Bldg. Demolished Using Wet Method ASBESTOS LITIGATION: More Fears Raised at Silverhill School ASBESTOS LITIGATION: Conn. Officials Recall CSI Toys from Stores ASBESTOS LITIGATION: Grace Reaches Deal with Gov't. Over Cleanup ASBESTOS LITIGATION: Ill. Court Awards $2.6M in Damages to Widow ASBESTOS LITIGATION: N.Y. County to Pay $10T Fine for DEC Breach ASBESTOS LITIGATION: Asbestos Halts Jail Construction in Texas ASBESTOS LITIGATION: Md. Schools May Face Major Hazard Expenses ASBESTOS LITIGATION: Federal-Mogul to Exit Bankruptcy on Dec. 27 ASBESTOS LITIGATION: Court OKs NJI’s Move in Case v. Lumbermens ASBESTOS LITIGATION: Texas Court Junks Spencer Action v. Warden ASBESTOS LITIGATION: Matter in Harper Action Set Aside, Remanded New Securities Fraud Cases HUNTINGTON BANCSHARES: Coughlin Stoia Files Securities Lawsuit ********* AMERICAN HONDA: Recalls Lawn Mowers Due to Laceration Hazard ------------------------------------------------------------ American Honda Motor Corp., of Torrance, California, in cooperation with the U.S. Consumer Product Safety Commission, is recalling about 167,000 Honda Walk-Behind Lawn Mowers. The company said the cutting blades could rotate under power when the control lever is released. The lawn mowers do not comply with mandatory federal safety standards for lawn mowers. The spinning blade poses a serious laceration hazard to consumers. No injuries have been reported. The recall involves Honda walk-behind lawn mowers with model numbers HRB217HXA, HRX217HXA and HRX217HMA. The model and serial number are printed on a label located on the upper rear of the mower deck. The lawn mowers are dark gray with a red fan cover. The following serial numbers are included in the recall: Models Serial Numbers HRB217HXA All HRX217HXA and HRX217HMA 1000001 - 1513628 These recalled lawnmowers were manufactured in the United States and are being sold by Honda Lawn and Garden dealers and The Home Depot stores nationwide from January 2003 through November 2007 for between $760 and $900. Pictures of recalled lawnmowers: http://www.cpsc.gov/cpscpub/prerel/prhtml08/08140a.jpg http://www.cpsc.gov/cpscpub/prerel/prhtml08/08140b.jpg Consumers are advised to stop using these recalled lawn mowers immediately and contact any Honda Lawn and Garden dealer for a free repair. Registered owners will be mailed a direct notice. For additional information, contact Honda at (800) 426-7701 between 8:30 a.m. and 5 p.m. ET Monday through Friday, or visit the firm's Web site: http://www.hondapowerequipment.com AUSTRALIA: Eyre Peninsula Bushfires Victims Plan to File Lawsuit ---------------------------------------------------------------- About 50 people who are Victims of the Eyre Peninsula bushfires in South Australia in early 2005 have met and agreed to pursue a class action for damages, ABC News reports. The fire on June 10 to 11, 2005 claimed the lives of nine people. Lawyer Peter Humphries says there has been unanimous support to seek damages. A suit could be filed by early next year, according to him. The findings into the Wangary Bushfire stated: "The fact of the matter was that no adequate measures were put in place or attempted which meant that opportunities to alter the outcome were not taken. Because the risk to the public was never properly addressed or appreciated... none of those measures were ever adequately considered. For the same reason, no adequate warning was given." Mr. Humphries said that the findings backs their case for compensation against the Country Fire Service and the insurance company of the man whose vehicle was the source of the fire. BLUE SHIELD: Appeals Court Revives Suit Over Canceled Insurance --------------------------------------------------------------- The California 2nd District Court of Appeal revived a proposed class action accusing Blue Shield of California Life & Health Insurance Co. of improper cancellation of individual insurance, Gian Keating of Reuters reports. The court said a Los Angeles trial court had erred in denying class certification to a suit accusing the company of trying to avoid paying claims by retroactively canceling policies of insured individuals it accused of lying on their applications. The court remanded the case to the trial court to reconsider its class certification ruling based on the opinion. The suit was filed by Augusto Ticconi and others who had health insurance policies canceled after they made claims. In his lawsuit, Mr. Ticconi said he had more than $100,000 in medical bills before Blue Shield canceled his policy. Mr. Ticconi claims that the insurer failed to attach a copy of his application to his policy, as required by state law, and so could not use his prior statement to say he lied about his health status. The Second District Court of Appeal wrote in the opinion that "the insurer may not raise a defense based on misstatements made in unattached and unendorsed applications." The suit claims the insurer illegally voided the policy after a 10-day cancellation period. It seeks to bar Blue Shield from other retroactive cancellations based on unattached applications and to reinstate improperly rescinded policies. The proposed class would include all California residents who had health insurance policies rescinded by Blue Shield Life since March 28, 2001 based on alleged misrepresentations in their policy applications. Of the nearly 250,000 short-term health insurance policies Blue Shield Life issued between Jan. 1, 2000 and June 30, 2005, it rescinded 207 for misrepresentation, the court said. Representing Mr. Ticconi is attorney Timothy Morris. CHASE HOME: Denied Summary Judgment in Cal. Loan Servicing Suit --------------------------------------------------------------- The U.S. District Court for the Northern District of California has denied Chase Home Finance's request for summary judgment in a class-action complaint that alleges Chase's mortgage policies violate California law and constitute conversion, unfair competition and false advertising. This class action for damages, restitution, and injunctive relief alleges that certain of Defendant Chase Home Finance's practices relating to the way it services mortgages violates California's consumer Legal Remedies Act, cal. civil code gg 1750e t seq. (CLRA), the False Advertising Act, cal. Business and professions Act gg 17500 er seq., the Unfair Competition Law, Cal. Bus. & prof. Code gg 17200e t seq. (UCL), and constitute conversion under California law. The suit was filed by T.C. Jefferson, who refinanced his Oakland Home in February 2003, signing a promissory note. In July 2003, Chase Home Finance LLC began servicing plaintiff's loan. In December 2004, the plaintiff asked Chase regarding a possible occasional prepayments. He was told any prepayment from him would be used to pay principal, with no mention about special requirements for payment. He afterwards began making additional monthly prepayments of $167.00 per month, using the automatic "bill pay" service of his own bank. He also continued to pay his regular monthly principal and interest. Later, Chase allegedly failed to apply the prepayment and subsequent prepayments. Plaintiff's First Cause of Action alleges that Chase violated the Consumer Legal Remedies Act, Cal. Civil Code $ 1750 et seq. Specifically, plaintiff claims that by making representations: (1) in each monthly loan statement coupon that "[u]ndesignated funds first pay outstanding late charges and fees then principal, (2) in the Deed about the application of payments, and (3) (as to Plaintiff only) through customer service representatives about how prepayments would be credited. Chase allegedly represented that is services had sponsorship approval, characteristics or benefits id did not have, in violation of S 1770(a)(9); and represented that a transaction conferred or involved rights, remedies or obligations which it did not have, in violation of S1770(a)(14). Plaintiff's Second Cause of Action alleges that Chase violated California's False Advertising Act, Business and Professions Code S 17500 et seq. by disseminating false or misleading statements about its services. Plaintiff's Third Cause of Action claims that Chase engaged in unfair, fraudulent, and unlawful practices in violation of California's Unfair Competition Law, Business and Professions Code S 17200 et seq. Plaintiff's Fourth Cause of Action is for conversion. To state a claim for conversion, Plaintiff must show "plaintiffs ownership or right to possession of property; defendant's wrongful act toward or disposition of the property, interfering with plaintiffs possession; and damage to plaintiff." The court finds that plaintiff's state law claims are not preempted by the National Bank Act and regulations promulgated thereunder. Chase argued that plaintiff's state law claims are preempted because they are either expressly preempted by or conflict with the provisions of the NBA and 12 CFF gg 7.4009 and 34.4(a) which provide that banks may make real estate loans without state law limitations regarding terms of credit, disclosure and advertising, processing and servicing of mortgages, repayments, and rates of interest on loans. But plaintiff asserts only that Chase made misrepresentations about how it would apply prepayments, in violation of the CLRA and the False Advertising Act, and therefore the UCL. The court holds that such laws of general application, which merely require all businesses (including banks) to refrain from misrepresentations and abide by contracts and representations to customers do not impair a bank's ability to exercise its lending powers. They only "incidentally affect" the exercise of a bank's powers, do not fall into the enumerated categories of $34.4(a), and are therefore not preempted. Moverover, Chase has not shown it is entitled to summary judgment on any of plaintiff's causes of action. Accordingly, the court denied Chase's motion for summary judgment. Plaintiff was ordered to file an amended complaint no later than 2l calendar days from the date of the court order (dated Dec. 14, 2007). The hearing on Plaintiff s Motion for Class Certification, currently set for January 14, 2008, is vacated. A Status Conference is set for Monday, February 4, 2008, at 1:30 p.m. Parties are to file a Joint Status Conference Statement no later than January 28, 2008, and should be prepared to discuss ADR options and a subsequent motion schedule. The suit is "T.C. Jefferson, et al. v. Chase Home Finance, et al., Case No. C 06-6510 TEH," filed in the U.S. District Court for the Northern District of California before Judge Thelton E. Henderson. CHEVRON CORP: Computer Data on Ecuadorian Pollution Suit Stolen --------------------------------------------------------------- Amazon Watch said in a statement that the office of a court- appointed expert tasked with calculating the damages against Chevron (formerly Texaco) for dumping 18 billion gallons of toxic wastewater into the Ecuadorian Amazon has been robbed of information relating to the case. On the night of December 13-14, a laptop computer and files went missing from his office in Quito, the official, Richard Cabrera said. He added that the information in the files was vital to his work assessing the damages. The burglary appears to be just the latest chapter in a pattern of harassment against Mr. Cabrera and his team since he began his work for the court. It comes in the final stages of a landmark, class-action environmental lawsuit against Chevron in Ecuador. Amazon Watch Executive Director Atossa Soltani called for Chevron to launch an independent investigation into the apparent intimidation. In the court-case, 30,000 impoverished inhabitants, many indigenous, of a vast area of the Ecuadorian Amazon are demanding an environmental remediation they have calculated at $6.1 billion. The region is racked by cancers, birth defects and miscarriages after Texaco operated there from the 1960s to the 1990s. Now that the judge has heard the evidence against Chevron, it is Mr. Cabrera’s job, on behalf of the court, to come up with an independent estimation of what the damages would cost. He told Ecuadorian news portal Ecuador Inmediato: “The seriousness of this matter lies in the fact that this is not the robbery of just any office. Rather, it involves the office in which resides all the information compiled in the field and different statements, which would support the drafting of the report regarding the forensic work that I have been tasked with in the aforementioned lawsuit.” Last month, in a written submission to the judge, dated November 5, Mr. Cabrera told the court Chevron’s public campaign against him: “... makes me presume that my life, the lives of my family and the lives of the technicians and other helpers working on the forensic investigation are in grave danger.” Mr Cabrera added: He and his staff had been followed and threatened; His telephone may be tapped; He needs police protection. The burglary now places Chevron and its dubious defense strategy, in and out of court, in the spotlight. In the last three years, the plaintiffs’ lawyers and leaders have suffered death threats, assaults, an attempted kidnapping and the theft of legal files. The pattern of human rights abuses has prompted both the Inter- American Commission on Human Rights and United Nations’ human rights officials to publicly intervene in the case, calling for the culprits to be brought to justice and for the Ecuadorian authorities to guarantee the plaintiffs’ safety. “This is a deeply disturbing incident,” said Amazon Watch Executive Director Atossa Soltani. “We call on Chevron’s global management in California to immediately make a public statement denouncing this apparent harassment and committing to supporting the integrity of the judicial process in Ecuador. “We also call on Chevron CEO David O’Reilly to guarantee the safety of the plaintiffs and the court officials and to personally launch a transparent investigation to ascertain what involvement Chevron employees or agents may have had in this burglary. Anything less puts the commitment of Chevron’s senior management to a lawful, ethical defense strategy in this landmark case in grave doubt.” The break-in comes two weeks after the communities’ lead lawyer Pablo Fajardo made international headlines by being awarded CNN’s new Hero award in the Fighting for Justice category. Fajardo was chosen from more than 7,000 nominations from 93 countries submitted by viewers to CNN over five months. The international cable news station established the Fighting for Justice category to recognize leaders “advancing the cause of civil or equal rights”. DUKE ENERGY: Discovery Continues in Ohio Air Pollution Lawsuit -------------------------------------------------------------- Discovery continues in a purported class action alleging violations of the Clean Air Act by Duke Energy Ohio, Inc., a wholly owned subsidiary of Cinergy Corp. The suit is pending in the U.S. District Court for the Southern District of Ohio against the company, which is formerly known as Cincinnati Gas & Electric Co. A citizen of the Village of Moscow, Ohio, the town adjacent to the company's Zimmer Station filed the suit in November 2004. The case seeks monetary damages and injunctive relief against the company for alleged violations of the CAA, the Ohio State Implementation Plan, and Ohio laws against nuisance and common law nuisance. The plaintiffs have filed a number of additional notices of intent to sue and two lawsuits raising claims similar to those in the original claim. One lawsuit was dismissed on procedural grounds, and the remaining two have been consolidated. On Dec. 28, 2006, the District Court certified this case as a class action. Discovery in the case continues, according to the company's Nov. 14, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarterly period ended Sept. 30, 2007. The suit is “Freeman v. Cincinnati Gas & Electric Co., Case No. 1:04-cv-00781-SJD,” filed in the U.S. District Court for the Southern District of Ohio under Judge Susan J. Dlott. Representing the plaintiffs are: Paul Alley and John Charles Greiner, Esqs. Graydon Head & Ritchey 2500 Chamber Center Drive, P.O. Box 17070, Suite 300 Ft. Mitchell, KY 41017 Phone: 859-282-8800 E-mail: palley@graydon.com and jgreiner@graydon.com Representing the company are: Louis Francis Gilligan, Esq. Keating Muething & Klekamp One E Fourth Street, Suite 1400 Cincinnati, OH 45202 Phone: 513-579-6400 Fax: 513-579-6523 E-mail: lgilligan@kmklaw.com - and - Ariane Johnson Cinergy Services, Inc. 1000 East Main Street Plainfield, IN 46168 DUKE ENERGY: Time to Serve Canadian Environmental Suit Lapses ------------------------------------------------------------- Duke Energy Ohio said it has not been served with a purported class action in connection to environmental emissions from its coal-fired power generation facilities in the U.S. and Canada by a July deadline for it to be served with the suit. Duke Energy Ohio, formerly known as Cincinnati Gas & Electric Co., understands that a class action was filed in Superior Court in Ontario, Canada on July 3, 2005 against it, and approximately 20 other utility and power generation companies. The suit is alleging various claims relating to environmental emissions from coal-fired power generation facilities in the U.S. and Canada and damages of approximately $50 billion, with continuing damages in the amount of approximately $4 billion annually. Duke Energy Ohio understands that the lawsuit also claims entitlement to punitive and exemplary damages in the amount of $1 billion. Duke Energy Ohio had not yet been served in this lawsuit by the deadline of July 3, 2007. However, if served, Duke Energy Ohio intends to defend this lawsuit vigorously in court. At this time, Duke Energy Ohio is not able to predict whether resolution of this matter would have a material effect on its consolidated financial position, cash flows or results of operations. Duke Energy Ohio, Inc. -- http://www.duke-energy.com/-- is a combination of electric and gas public utility company that provides service in the southwestern portion of Ohio and through Duke Energy Kentucky, Inc. in nearby areas of Kentucky. The Company’s principal lines of business include generation, transmission and distribution of electricity, the sale of and/or transportation of natural gas, and energy marketing. The Company operates in two segments: Franchised Electric and Gas, and Commercial Power. Its principal subsidiary is Duke Energy Kentucky. DUKE ENERGY: Still Faces Environmental Emissions Suit in Canada --------------------------------------------------------------- Duke Energy Indiana, Inc., a subsidiary of Duke Energy Corp., continues to face a purported class action that was filed in Superior Court in Ontario, Canada. The suit was brought against Duke Energy Indiana, formerly PSI Energy, Inc., and approximately 20 other utility and power generation companies. It alleges various claims relating to environmental emissions from coal-fired power generation facilities in the U.S. and Canada and damages of approximately $50 billion, with continuing damages in the amount of approximately $4 billion annually. Duke Energy Indiana understands that the lawsuit also claims entitlement to punitive and exemplary damages in the amount of $1 billion. Duke Energy Indiana had not been served in this lawsuit by the deadline of July 3, 2007. However, if served, Duke Energy Indiana intends to defend this lawsuit vigorously in court. Duke Energy Indiana, Inc. -- http://www.duke-energy.com/-- transmits and distributes electricity to 69 of the state's 92 counties (approximately 766,000 customers). It also owns power plants (7,275 MW of primarily fossil-fueled capacity), which are operated by its parent's merchant energy division. Although Duke Energy Indiana and fellow Duke subsidiary, Duke Energy Ohio had an option to acquire a 512-MW generating facility located in Indiana from Allegheny Energy, Duke Energy Indiana has been given ownership. DYNEX CAPITAL: Court Mulls Appeal on Securities Suit's Dismissal ---------------------------------------------------------------- The U.S. Court of Appeals for the Second Circuit has yet to rule on an appeal regarding a dismissal of certain defendants in a securities fraud class action filed against Dynex Capital, Inc. and its subsidiary MERIT Securities Corp. On Feb. 11, 2005, a putative class-action complaint alleging violations of the federal securities laws and various state common law claims was filed against: -- Dynex Capital, Inc., -- subsidiary MERIT Securities Corp., -- Stephen J. Benedetti, the company's executive vice president, and -- Thomas H. Potts, the company's former president and a former director. The Teamsters Local 445 Freight Division Pension Fund filed the suit in the U.S. District Court for the Southern District of New York. The lawsuit purported to be a class action on behalf of purchasers of MERIT Series 13 securitization financing bonds, which are collateralized by manufactured housing loans. On May 31, 2005, the Teamsters filed an amended class action complaint. The amended complaint dropped all state common law claims but added federal securities claims related to the MERIT Series 12 securitization financing bonds. On July 15, 2005, the defendants moved to dismiss the amended complaint. On Feb. 10, 2006, the court dismissed the claims against Messrs. Benedetti and Potts, but did not dismiss the claims against Dynex and MERIT. The remaining defendants moved to certify an interlocutory appeal of this order to the U.S. Court of Appeals for the Second Circuit. On June 2, 2006, the court granted the defendants' motion. On Sept. 14, 2006, the Second Circuit granted the defendants' petition to accept the certified order for interlocutory appeal. On March 2, 2007, the parties completed briefing in the Second Circuit and are awaiting oral argument. The company reported no development in the matter in its Nov. 14, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarterly period ended Sept. 30, 2007. The suit is “Teamsters Local 445 Freight Division Pension Fund et al v. Dynex Capital, Inc. et al., Case No. 1:05-cv-01897-HB,” filed in the U.S. District Court for the Southern District of New York, under Judge Harold Baer. Representing the plaintiffs are: Joel P. Laitman, Esq. Christopher Lometti, Eqs. Samuel P. Sporn, Esq. Schoengold & Sporn, P.C., Esq. 19 Fulton Street, Suite 406 New York, NY 10038 Phone: 212-964-0046 Fax: 212-267-8137 E-mail: chris@spornlaw.com Representing the company are: Monica Shelton Call, Esq. Eric Harrison Feiler, Esq. Edward Joseph Fuhr, Esq. Terence James Rasmussen, Esq. Joseph John Saltarelli, Esq. Hunton & Williams, LLP 951 East Byrd Street Richmond, VA 23219 Phone: (804)-788-8632 Fax: (804)-788-8218 E-mail: trasmussen@hunton.com jsaltarelli@hunton.com FORTUNE BRANDS: Nixed Underage Drinking Lawsuits Still on Appeal ---------------------------------------------------------------- Plaintiffs continue to appeal dismissals of several class actions filed against Fortune Brands, Inc., its Spirits and Wine business, and numerous other manufacturers and importers of beer, spirits and wine over alleged marketing of beverage alcohol to people under the legal purchase age for alcohol. The purported class action lawsuits were filed in Michigan, Ohio, Wisconsin and West Virginia. They are seeking damages and declaratory and/or injunctive relief. All of these actions were dismissed at the trial court level. The Michigan and Ohio cases were remanded to the trial court to be dismissed and vacated for lack of standing, the dismissal of the Wisconsin case was affirmed by the Wisconsin appellate court, and the West Virginia case is currently pending on appeal. Plaintiffs in the Ohio and Michigan cases filed a motion seeking review by the U.S. Supreme Court, according to the company's Nov. 14, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarterly period ended Sept. 30, 2007. Fortune Brands, Inc. -- http://www.fortunebrands.com-- is a holding company with subsidiaries engaged in the manufacture, production and sale of home and hardware products, spirits and wine, and golf products. The Company operates through three segments: Home and Hardware, Spirits and Wine, and Golf. GLOBALSTAR INC: Faces Consolidated Securities Fraud Suit in N.Y. ---------------------------------------------------------------- Globalstar, Inc. faces a consolidated securities fraud class action in the U.S. District Court for the Southern District of New York. On Feb. 9, 13, and 21, 2007, plaintiffs Ladmen Partners, Israel Bollag and Margueritte Sherrard, respectively filed purported class actions against the company, its chief executive officer and its chief financial officer (Class Action Reporter, April 25, 2007). The actions allege that the company's registration statement related to its initial public offering in November 2006 contained material misstatements and omissions. The actions cited a drop in the trading price of the company's common stock that followed its filing, on Feb. 5, 2007, of a current report of Form 8-K relating in part to changes in the condition of the company's satellite constellation. The Court consolidated the three cases as, “Ladmen Partners, Inc. v. Globalstar, Inc., et al., Case No. 1:07-CV-0976 (LAP),” and appointed Connecticut Laborers’ Pension Fund as lead plaintiff. On August 15, 2007, the lead plaintiff filed its Securities Class Action Consolidated Amended Complaint. The Amended Complaint reasserts claims against the Company and the Company’s chief executive and chief financial officer, and adds as defendants the three co-lead underwriters of the IPO, Wachovia Capital Markets, LLC, JPMorgan Securities, Inc., and Jefferies & Company, Inc. It seeks, on behalf of a class of purchasers of the Company’s Common Stock who purchased shares in the IPO or traceable to the IPO from Nov. 2, 2006 through Feb. 6, 2007, recovery of damages under Sections 11 and 15 of the Securities Act of 1933, and rescission under Section 12(a)(2) of the Securities Act of 1933. The first identified complaint is “Ladmen Partners, Inc., et al. v. Globalstar, Inc., et al.,” filed in the U.S. District Court for the Southern District of New York. Plaintiff firms in this or similar case: Abraham, Fruchter & Twersky One Pennsylvania Plaza, Suite 1910 New York, NY 10119 Phone: 212.279.5050 Fax: 212.279.3655 E-mail: JFruchter@FruchterTwersky.com Bernstein Liebhard & Lifshitz LLP, 10 E. 40th Street, 22nd Floor New York, NY 10016 Phone: 800.217.1522 E-mail: info@bernlieb.com Lerach Coughlin Stoia Geller Rudman & Robbins LLP 58 South Service Road, Suite 200 Melville, NY 11747 Phone: 631.367.7100 Fax: 631.367.1173 - and - Schiffrin Barroway Topaz & Kessler, LLP 2125 Oak Grove Road, Suite 120 Walnut Creek, CA 94598 Phone: 925.945.0200 Fax: 925.945.8792 E-mail: info@sbtklaw.com GLOBALSTAR INC: Calif. Consumer Fraud Suit Partly Dismissed ----------------------------------------------------------- The U.S. District Court for the Northern District of California partially dismissed a purported class action filed against Globalstar, Inc. alleging violations of the California Business & Professions Code Section 17200 and California Civil Code section 1750, et seq., the Consumers’ Legal Remedies Act. The suit was filed on April 7, 2007 by Kenneth Stickrath and Sharan Stickrath, under Case No. 07-CV-01941 THE. Plaintiffs allege that members of the proposed class suffered damages from March 2003 to the present because Globalstar did not perform according to its representations with respect to coverage and reliability. They claim that the amount in controversy exceeds $5.0 million but do not allege any particular actual damages incurred. Plaintiffs amended their complaint on June 29, 2007, and the Company filed a motion to dismiss the complaint on July 6, 2007. On Sept. 25, 2007, the court issued an order granting in part and denying in part the Company’s motion. Subsequently, on Oct. 17, 2007, the plaintiffs filed their Second Amended Complaint. The suit is “Stickrath et al v. Globalstar, Inc., Case No. 3:07- cv-01941-TEH,” filed in the U.S. District Court for the Northern District of California under Judge Thelton E. Henderson with referral to Judge Elizabeth D. Laporte. Representing the plaintiff is: Michael Andrew McShane, Esq. Audet & Partners LLP 221 Main Street, Suite 1460 San Francisco, CA 94105 Phone: 415-568-2555 Fax: 415-568-2556 E-mail: mmcshane@audetlaw.com Representing the defendant is: Elizabeth I. Rogers, Esq. Wilmer Cutler Pickering Hale & Dorr LLP 1117 California Avenue Palo Alto, CA 94304 Phone: (650) 858-6000 Fax: (650) 858-6100 E-mail: elizabeth.rogers@wilmerhale.com GLOBALSTAR INC: New Rep Named in Canadian Consumer Fraud Suit ------------------------------------------------------------- A new class representative has been designated in a purported consumer fraud class action filed against a unit of Globalstar, Inc. in Quebec, Canada, Superior Court. On April 24, 2007, Mr. Jean-Pierre Barrette filed a motion for Authorization to Institute a Class Action in Quebec, Canada, Superior Court against Globalstar Canada. Mr. Barrette asserts claims based on Quebec law related to his alleged problems with Globalstar Canada’s service. The Company moved to disqualify Mr. Barrette because of his association with the law firm representing plaintiffs and to transfer the case to the district of Montreal. The court recently granted the Company’s motion for a change of venue, and plaintiff’s counsel substituted a new designated representative of the purported class, according to the company's Nov. 14, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarterly period ended Sept. 30, 2007. Globalstar, Inc. -- http://www.globalstar.com/-- is a provider of mobile voice and data communication services via satellite. Using in-orbit satellites and ground stations, which it refers to as gateways, the Company offers voice and data communications services to government agencies, businesses and other customers in over 120 countries. GLS CAPITAL: Stay on Pa. Suit Over Delinquency Fees Continues ------------------------------------------------------------- A purported class action filed in the Court of Common Pleas of Allegheny County, Pennsylvania against GLS Capital, Inc., a subsidiary of Dynex Capital Inc., remains stayed. Plaintiffs allege that GLS illegally charged the taxpayers of Allegheny County certain attorney fees, costs and expenses, and interest in the collection of delinquent property tax receivables owned by GLS. Plaintiffs were seeking class certification status, and in October 2006, the Court of Common Pleas certified the case as a class action. In its Order certifying the class action, the Court of Common Pleas left open the possible decertification of the class if the fees, costs and expenses charged by GLS are in accordance with public policy considerations as well as Pennsylvania statute and relevant ordinance. The Company successfully sought the stay of this action pending the outcome of other litigation before the Pennsylvania Supreme Court in which GLS is not directly involved but has filed an Amicus brief in support of the defendants. Several of the allegations in that lawsuit are similar to those being made against GLS in this litigation. Dynex Capital reported no development in the matter in its Nov. 14, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarterly period ended Sept. 30, 2007. Dynex Capital, Inc. -- http://www.dynexcapital.com-- together with its subsidiaries, is a specialty finance company organized as a real estate investment trust that invests in loans and securities consisting principally of single-family residential and commercial mortgage loans. HEALTHMARKETS INC: Securities Suit Settlement Hearing Set 2008 -------------------------------------------------------------- The U.S. District Court for the Northern District of Texas set a Jan. 23, 2008 hearing for a proposed settlement of a consolidated securities fraud class action filed against HealthMarkets, Inc., formerly known as UICI. In May and June 2004, the company and certain current and former officers and directors of the company were named as defendants in four separate class actions filed in federal court in Texas. The suit arises out of the company's announcement in July 2003 of a shortfall in the type and amount of collateral supporting securitized student loan financing facilities of Academic Management Services Corp., (AMS) formerly a wholly-owned subsidiary of the company until its disposition in November 2003. On Oct. 18, 2004, the four separate cases were consolidated as a single action under, “In re HealthMarkets Securities Litigation, Case No. 3-04-CV-1149-P,” in. On May 27, 2005, plaintiffs on behalf of the purported class of similarly situated individuals who purchased the company's common stock during the period commencing Feb. 7, 2002 and ending on July 21, 2003, filed a first amended consolidated complaint alleging among other things that the company, AMS, the company's former chief financial officer, the company's former chief executive officer and AMS' former president failed to disclose all material facts relating to the condition of AMS, in violation of Section 10(b) of the U.S. Securities Exchange Act of 1934 and Rule 10b-5 thereunder. On July 11, 2005, defendants filed a motion to dismiss the consolidated complaint. On Sept. 29, 2006, the court denied the motion to dismiss the complaint. On Jan. 10, 2007, the parties participated in a mediation of the matter, but a resolution was not reached. On Oct. 4, 2007, the parties executed a settlement agreement and, on Oct. 11, 2007, the Court entered an order preliminarily approving the settlement. The final settlement hearing has been scheduled for Jan. 23, 2008. The suit is “In re HealthMarkets Securities Litigation, Case No. 3-04-CV-1149-P,” filed in the U.S. District Court for the Northern District of Texas, Dallas Division under Judge Jorge A. Solis. Representing the plaintiffs are: Thomas E. Bilek, Esq. Hoeffner & Bilek 1000 Louisiana St., Suite 1302 Houston, TX 77002 Phone: 713-227-7720 Fax: 713-227-9404 E-mail: tbilek@hb-legal.com Douglas R. Britton, Esq. Lerach Coughlin Stoia Geller Rudman & Robbins 655 W. Broadway, Suite 1900 San Diego, CA 92101 Phone: 619-231-1058 E-mail: DougB@Lerachlaw.com - and - Eric G. Calhoun, Esq. Travis & Calhoun 1000 Providence Towers East, 5001 Spring Valley Rd. Dallas, TX 75244 Phone: 972/934-4100 Fax: 972/934-4101 E-mail: eric@travislaw.com Representing the defendants are: Ralph I. Miller, Esq. Robert R. Summerhays, Esq. Weil Gotshal & Manges 200 Crescent Court, Suite 300 Dallas, TX 75201 Phone: 214/746-7756 and 214/746-7727 Fax: 214/746-7700 and 214/746-7777 E-mail: ralph.miller@weil.com bob.summerhays@weil.com INFANTINO LLC: Recalls Infant Teethers Due to Choking Hazard ------------------------------------------------------------- Infantino LLC, of San Diego, California, in cooperation with the U.S. Consumer Product Safety Commission, is recalling about 28,000 Infantino Lion Teethers. The company said the plastic nose can detach, posing a choking hazard to young children. Infantino has received eight reports of the nose detaching, including one report of a child gagging on the bitten off nose. This recall involves Infantino lion teethers. The yellow and orange plastic teethers have date codes 6116, 6129, 6158, 6137, 0606, 0806, 0906, and 1006. The date codes are located on the back of the lion?s head, above the Infantino® logo. Lion teethers with other date codes are not included in this recall. These recalled teethers were manufactured in China and are being sold at Babies “R” Us, Pottery Barn Kids and other specialty stores nationwide from June 2006 through December 2007 for about $5. Picture of recalled lion teethers: http://www.cpsc.gov/cpscpub/prerel/prhtml08/08135.jpg Consumers are advised to take the recalled toys away from young children immediately and contact Infantino for a replacement teether or a product of equal value. For additional information, contact Infantino toll-free at (888) 808-3111 between 8 a.m. and 4 p.m. PT Monday through Friday, or visit the firm's Web site: http://www.service.infantino.com INTELLIGROUP INC: Securities Fraud Lawsuit in N.J. Dismissed ------------------------------------------------------------ The United States District Court for the District of New Jersey, dismissed all plaintiff's claims against Intelligroup Inc. and certain former officers in a consolidated shareholder class action filed in October 2004. The plaintiffs have not appealed the court's order dismissing the action. "The court's decision to dismiss the case supports our long- standing position that the lawsuits were without merit," said Vikram Gulati, Chief Executive Officer and President of Intelligroup. "We look forward to putting this issue completely behind us and continuing to move forward with our business efforts." Case Background On or about Oct. 12, 2004, the first of six class actions was filed on behalf of a purported class of investors who purchased the company's common stock against the company and former officers Arjun Valluripalli, Nicholas Visco, Edward Carr and David Distel. In August 2005, the court consolidated the six class actions and appointed a lead plaintiff. Plaintiffs subsequently dropped Mr. Distel and Mr. Carr from the shareholder class action, failing to name either of them as a defendant in the amended consolidated complaint filed on or about Oct. 10, 2005. The shareholder class action generally alleges violations of federal securities laws, including allegations that the defendants made materially false and misleading statements regarding the company's financial condition and that the Defendants materially overstated financial results by engaging in improper accounting practices. The class period proposed was May 1, 2001 through Sept. 24, 2004. The shareholder class action generally seeks relief in the form of unspecified compensatory damages and reasonable costs, expenses and legal fees. On Dec. 5, 2005, defendants filed motions to dismiss the amended consolidated complaint. On Feb. 10, 2006, prior to the hearing on defendants' motions to dismiss, plaintiffs filed a second amended consolidated complaint. On Feb. 10, 2006, lead plaintiffs filed a second amended consolidated class action complaint. On March 27, 2006, defendants filed their motions to dismiss the complaint. Lead plaintiffs filed their opposition to defendants' motions on May 11, 2006, and beginning June 9, 2006 defendants filed further briefing in support of their motions. On Dec. 20, 2006, Judge Garrett Brown granted the motion to dismiss. On or about Jan. 25, plaintiffs filed the third consolidated amended complaint. On or about March 5, defendants filed a motion to dismiss the third consolidated amended complaint. In April, Intelligroup sought the dismissal of a third amended complaint in the consolidated securities fraud class action pending (Class Action Reporter, April 12, 2007). On November 13, 2007, the court dismissed the suit. The suit is "Lydia Garcia, et al. v. Intelligroup Inc., et al., Case No. 04-CV-4980," filed in the U.S. District Court for the District of New Jersey under Judge John C. Lifland with referral to Judge Mark Falk. Representing the plaintiffs are: Joseph J. DePalma Lite, DePalma, Greenberg & Rivas, LLC Two Gateway Center, 12th Floor Newark, NJ 07102-5003 Phone: (973) 623-3000 E-mail: jdepalma@ldgrlaw.com Gary S. Graifman Kantrowitz, Goldhamer & Graifman, Esqs. 210 Summit Avenue Montvale, NJ 07645 Phone: (201) 391-7000 E-mail: ggraifman@kgglaw.com - and - Lisa J. Rodriguez Trujillo Rodriguez & Richards, LLP 8 Kings Highway West Haddonfield, NJ 08033 Phone: (856) 795-9002 E-mail: lisa@trrlaw.com Representing the defendants are: Dennis J. Drasco Kevin J. O'Connor Lum, Danzis, Drasco & Positan, LLC 103 Eisenhower Parkway Roseland, NJ 07068-1049 Phone: (973) 403-9000 E-mail: ddrasco@lumlaw.com and koconnor@lumlaw.com LA MODELS: Sued for Alleged Illegal “Service Charge” on Models -------------------------------------------------------------- L.A. Models in Los Angeles is facing a class action alleging the company cheats on its independent contractors by deducting an extra "service charge" from their modeling fees. The company allegedly takes 20% extra charge on top of a 20% commission it gets from the party that hires the models. The suit was filed by Federico Galavis in Superior Court. He is represented by Douglas Johnson of Beverly Hills. For more information, contact: Douglas L. Johnson, Esq. Johnson & Johnson, LLP 439 N. Canon Drive, Suite 200 Beverly Hills, CA 90210 Phone: (310) 975-1095 E-mail: djohnson@jjllplaw.com Web site: http://www.jjllplaw.com MISSOURI: Wireless Phone Providers Settle Municipality Tax Suit --------------------------------------------------------------- U.S. Cellular, AT&T and Sprint, three of Missouri's largest wireless phone providers, have settled class actions filed by Missouri municipalities claiming the companies owe them back taxes, Elizabeth Schlee of the Columbia Missourian reports. The suit was filed by the municipalities in 2004. The plaintiffs claimed the wireless companies owed back taxes on gross receipts from Sept. 1, 2005, to Aug. 31, 2007. The companies had argued they didn’t need to pay the taxes because they didn’t provide the same services as land-line phone companies. Recently, U.S. Cellular and AT&T reached a settlement in the case. The first settlement is with U.S. Cellular. The U.S. Cellular settlement is expected to be presented to the City Council on Jan. 7. If approved, the city would receive more than $580,000 from the settlement and U.S. Cellular would be required to pay all future taxes. The AT&T settlement would give Columbia a little more than $2 million, according to John Mulligan, an attorney representing several municipalities in the suit. The Sprint suit is expected to be settled by early January, according to the report. Mr. Mulligan reportedly said that Columbia would have until Feb. 25 to approve the settlement amount, and the final approval hearing would not begin until April. For more information, contact: John Mulligan & Associates Inc. 271 Jericho Turnpike Floral Park, New York 11001 Phone: (516) 775-3233 Fax: (516) 775-3315 E-mail: info@johnmulligan.com MORGAN KEEGAN: Klayman & Toskes Files Suit Over Bond Funds ---------------------------------------------------------- The Law Firm of Klayman & Toskes, P.A. announced that a class action was filed against Morgan Keegan, in the United States District Court Western District of Tennessee, captioned “Atkinson, M.D. et al. v. Morgan Asset Management, Inc. et al., Case No. 2007cv02784.” Specifically, the two Morgan Keegan Bond Funds at issue in the class action are the Regions MK Select High Income Bond Fund-I and the Regions MK Select Intermediate Bond Fund-A. However, the firm continues to investigate other Morgan Keegan Bond Funds which also sustained heavy losses, including the following: Y-T-D Return as Ticker Bond Fund of 11/20/07 ------ --------- --------------- RIBCX Regions MK Select Intermediate Bond Fund-C -42.96% RIBIX Regions MK Select Intermediate Bond Fund-I -42.50% These bond funds sustained heavy losses due to the fact that they were over-concentrated in risky collateralized debt obligations ("CDOs") and other mortgage backed securities. Morgan Keegan may have misrepresented these bond funds to be safe, conservative investments. However, they may have been unsuitable for many Morgan Keegan customers in light of the funds' level of exposure to the CDO and mortgage backed securities markets which have plummeted in recent months. The suit is “Atkinson, M.D. et al v. Morgan Asset Management, Inc. et al, Case Number: 2:2007cv02784,” filed in the U.S. District Court for the Western District of Tennessee under, Magistrate Judge Diane K. Vescovo. Plaintiffs counsel is: Jahan K. Manasseh, Esquire Klayman & Toskes, P.A. Phone: 888-997-9956 Website: http://www.nasd-law.com MORTGAGE COS: Pa. Judge Refuses to Send Suit to Bankruptcy Court ---------------------------------------------------------------- A federal judge in Philadelphia denied a request by victims in the collapse of Wesley A. Snyder's mortgage businesses to move their class action against 27 mortgage companies from federal court to U.S. Bankruptcy Court in Reading, Patrick Burns of Intelligencer Journal reports. Judge James T. Giles said in a Dec. 13 ruling that the move would exacerbate an already confused process. Further, Judge Giles also said he's not likely to certify the case as a class action against the mortgage companies, according to the report. But he said he will wait until the borrowers' attorneys file all their arguments before making his decision. Case Background OPFM filed for bankruptcy on Sept. 18. On Sept. 25, the law firm O'Keefe & Sher filed a suit against Personal Financial Management Inc. (OPFM Inc.) in Berks County court on behalf of more than 800 homeowners. O'Keefe & Sher filed the suit against the mortgage lenders, claiming they didn't follow standard banking procedures when they did business with OPFM. The case seeks to void mortgages of 25 lenders named in the suit. The company allegedly brokered the mortgages without the knowledge of the customers, who thought they were signing on for lower mortgages. Recently, in a 29-page amended complaint filed in federal court, attorney Joseph O'Keefe claimed that affiliates of OPFM, as agents of the mortgage companies, did not turn over to the banks nearly $30 million the customers had paid them, much of it prepayments on mortgages, the report said. Defendants in the suit are: -- ABN AMRO Mortgage Group, Inc., -- Chase Home Mortgage Corporation, -- Citimortgage, Inc., -- Citicorp Home Mortgage Services, Inc., -- Countrywide Home Loans, Inc., -- Fifth Third Mortgage Company, -- Florida Capital Bank Mortgages, -- GMAC mortgage Corporation, -- GMAC Mortgage Asset Management, Inc., -- GMAC Mortgage Group, Inc., -- HSBC Mortgage Corporation (USA), -- Indymac Financial Services Corp., -- Moorequity Inc., -- National City Mortgage Inc., -- Nbank, NA, -- Provident Funding Group, Inc., -- Saxon Home Mortgage, -- Sovereign Bank, -- Suntrust Mortgage, Inc., -- U.S. Bank N.A., Wachovia Mortgage Corporation, -- Washington Mutual Home Loans, Inc., -- Wells Fargo Home Mortgage, Inc. and -- John Doe Mortgage Companies Judge Giles earlier granted a request by the mortgage companies to move the case to federal court (Class Action Reporter, Oct. 30, 2007). But it refused a request to move it to bankruptcy court. OPFM Inc. operated as Personal Financial Management and Image Masters Inc. The suit is “Jone et al. v. ABN AMRO Mortgage Corp. Inc. et al., Case No. 2:2007cv04328,” filed in the U.S. District Court for the Eastern District of Pennsylvania, under Judge James T. Giles. For more information, contact: Joseph O'Keefe, Esq. O'Keefe & Sher PC 15019 Kutztown Rd. Kutztown, PA 19530-9276 Phone: 610) 683-0771 Fax: (610) 683-0777 NEW YORK: Discovery Ongoing in Labor Laws Violation Lawsuit ----------------------------------------------------------- Discovery is ongoing in a purported class action filed against New York Mortgage Trust, Inc. in the U.S. District Court for the Southern District of New York over alleged violations of the Fair Labor Standards Act and New York State law. On Dec. 13, 2006, Steven B. Yang and Christopher Daubiere, filed suit against Hypotheca Capital, LLC (formerly known as The New York Mortgage Company, LLC), and the Company. The suit is alleging that defendants failed to pay plaintiffs, and similarly situated employees, overtime in violation of FLSA and New York State law. Plaintiffs, former employees in the company's discontinued Mortgageline division who purport to bring a FLSA “collective action” on behalf of similarly situated loan officers in its now discontinued mortgage lending operations, are seeking unspecified amounts for alleged unpaid overtime wages, liquidated damages, attorney's fees and costs. Because the parties have agreed to attempt mediation, as of Nov. 9, 2007, Plaintiffs have not applied to the Court for permission to certify the class or send notice of the collective action to prospective collective action members. This case involves complex issues of law and fact and has not yet progressed to the point where the Company can: -- predict its outcome; -- precisely estimate damages that might result from such case due to the uncertainty of the class certification and the number of potential participants in any class that may be certified; -- predict the effect that final resolution of this litigation might have on it, its business, financial condition or results of operations, although such effect could be materially adverse. The company is currently engaged in discovery and continue to investigate Plaintiffs' claims, according to the company's Nov. 14, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarterly period ended Sept. 30, 2007. The suit is “Yang et al v. New York Mortgage Company, LLC. et al., Case No. 1:06-cv-14429-GEL,” filed in the U.S. District Court for the Southern District of New York under Judge Gerard E. Lynch. Representing the plaintiffs is: Erik H. Langeland, Esq. 500 Fifth Avenue, Suite 1610 New York, NY 10110 Phone: 212-354-6279 Fax: 212-898-9086 Representing the defendants is: Wendy J. Mellk, Esq. Jackson Lewis LLP 58 South Service Road Melville, NY 11747 Phone: 631-247-0404 Fax: 631-247-0417 E-mail: mellkw@jacksonlewis.com OHIO: Suit Alleges Group Premium Rating Plan Unconstitutional ------------------------------------------------------------ Three businesses have filed a class-action complaint in the Court of Common Pleas, Cuyahoga County, Ohio claiming the Ohio Attorney General and the state Bureau of Workers Compensation illegally charge non-group rated businesses 20 percent more for workers comp insurance, to subsidize group-rated employers, the CourtHouse News Service reports. Plaintiffs bring this action in equity on behalf of all Ohio private employers who have at any time since 1991 paid workers' compensation premiums as a non-group rate employer. They want the court to rule on: (a) whether the Plan violates Section 35, Article II of the Ohio Constitution, by imposing premiums on non-group rated employers that exceed, and in fact subsidize, the discounted premiums charged group-rated employers, who fall within the same occupational classification; (b) whether the Plan violates Section 35, Article II of the Ohio Constitution, by requiring non-group rated employers to subsidize discounted premiums afforded group-rated employers in the same occupational classification; (c) whether the Plan violates Section 2, Article I of the Ohio Constitution, by arbitrarily imposing burdens on non-group rated employers without a rational basis, by requiring non-group rated employers to pay inflated workers' compensation premiums in order to subsidize discounted premiums afforded identically situated group-rated employers; and (d) whether the defendant's implementation of the Plan violated the statutory mandate granted to defendant under ORC Section 4123.29, by requiring similarly situated and occupational classified non-group rated employers, and instituting an experience rated group rating system instead of a retrospective rated group rating system. Plaintiffs demand that the court grant the following relief: -- certify this action as a class action pursuant to Rule 23 of the Ohio Rules of Civil Procedure; -- declare that the Ohio Group Rating Plan, as implemented by defendant, is unconstitutional as violating Section 2, Article I and Section 35, Article II of the Ohio Constitution, and also violates Ohio Revised Code Section 4123.29; -- issue an Order in equity requiring defendant to repay to the class members all excessive premiums collected by defendant pursuant to the unconstitutional group rating Plan; -- award plaintiffs and the class members pre-judgment and post-judgment interest; -- award plaintiffs and the class members the costs of this action together with reasonable attorney fees, and such other and further relief as the court may deem just and necessary. The suit is "San Allen, Inc. et al v. Marsha P. Ryan, et al., Case No. CV07644950," filed in the Court of Common Pleas, Cuyahoga County, Ohio. Representing plaintiffs are: Stuart I. Garson James A. DeRoche David L. Meyerson David H. Krause Garson & Associates co., LPA 614 W. superior Avenue, Suite 1600 Cleveland, Ohio 44113 Phone: (216) 696-9330 Fax: (216) 696-8558 OMNIVISION TECHNOLOGIES: $14M Securities Suit Settlement Okayed --------------------------------------------------------------- Judge Samuel Conti of the U.S. District Court for the Northern District of California finalized a $13.75 million class action settlement in the matter, "In re OmniVision Technologies, Inc. Securities Litigation, Case No. 04-CV-2297," Shannon Henson of the CourtHouse News Service reports. Judge Conti finalized the agreement, which calls for the money to be placed in a settlement fund. The plaintiffs' counsel, Milberg Weiss LLP and Girard Gibbs LLP, will receive 28% of the fund or about $3.8 million and about $560,489 in fees. Case Background On June 10, 2004, the first of several putative class actions were filed against the company and certain of its present and former directors and officers on behalf of investors who purchased the company's common stock at various times from February 2003 to June 9, 2004. Those actions were consolidated as, "In re OmniVision Technologies, Inc., No. C-04-2297-SC." It asserts claims on behalf of purchasers of the company's common stock between June 11, 2003 and June 9, 2004. It is seeking unspecified damages. The suit generally alleges that defendants violated Sections 10(b) and 20(a) of the U.S. Securities Exchange Act of 1934 by allegedly engaging in improper accounting practices that purportedly led to the company's financial restatement. On July 29, 2005, the court denied the company's motion to dismiss the complaint and discovery commenced thereafter. The parties engaged in settlement discussions and in November 2006, the parties reached an agreement in principle to settle this litigation (Class Action Reporter, March 26, 2007). For more details, contact: In re OmniVision Securities Litigation c/o Gilardi & Co. LLC, Claims Administrator P.O. Box 990 Corte Madera, CA 94976-0990 Phone: (800) 447-7657 Web site: http://www.gilardi.com The suit is "In re OmniVision Technologies, Inc. Securities Litigation, Case No. 04-CV-2297," filed in the U.S. District Court for the Northern District of California under Judge Samuel L. Conti with referral to Judge Joseph C. Spero. Representing the plaintiff is: Jeff S. Westerman, Esq. Milberg Weiss & Bershad LLP One California Plaza, 300 South Grand Ave., Ste. 3900 Los Angeles, CA 90071 Phone: (213) 617-1200 Fax: (213) 617-1975 SEARS ROEBUCK: Ill. Court Sets Jan. 10, 2008 Exclusion Deadline --------------------------------------------------------------- The U.S. District Court for the Northern District of Illinois set a Jan. 10, 2008 exclusion deadline for potential class members in the class action, “Maurice Levie, et al. v. Sears, Roebuck & Co., et al.,” a case that was filed in connection with Sears' merger with Kmart Holding Corp. Case Background Sears Holdings was formed as a Delaware corporation in 2004 in connection with the merger of Kmart and Sears that was announced on Nov. 17, 2004. The suit asserts claims under the federal securities laws on behalf of a purported class of Sears' stockholders against Sears and Alan J. Lacy, for allegedly failing to make timely disclosure of merger discussions with Kmart during the period Sept. 9, 2004 through Nov. 16, 2004, and seeks damages. On July 17, 2007, the Court granted in part and denied in part plaintiffs’ motion for class certification, certifying a class of Sears stockholders who sold shares of Sears stock between Sept. 9, 2004 and Nov. 16, 2004, excluding short sellers who covered their positions during the class period. On July 30, 2007, defendants filed a petition for leave to appeal the class certification with the U.S. Court of Appeals for the Seventh Circuit. Plaintiffs have filed their response to the petition. The parties await a ruling from the Court of Appeals. Meanwhile, written discovery is underway. The suit is “Levie v. Sears Roebuck Co., et al., Case No. 1:04- cv-07643,” filed in the U.S. District Court for the Northern District of Illinois under Judge Robert W. Gettleman with referral to Judge Arlander Keys. Representing the plaintiffs are: Mark Richard Miller, Esq. Wexler Toriseva Wallace LLP One North LaSalle, Suite 2000 Chicago, IL 60602 Phone: (312) 346-2222 E-mail: mrm@wtwlaw.us - and - Charles J. Piven, Esq. Brower Piven, A Professional Corporation The World Trade Cener, 401 East Pratt St., Suite 2525 Baltimore, MD 21202 Phone: (410) 332-0030 Representing the defendants are: Mark A. Flessner, Esq. Sonnenschein, Nath & Rosenthal, LLP 233 South Wacker Drive, 7800 Sears Tower Chicago, IL 60606 Phone: (312) 876-8000 E-mail: mflessner@sonnenschein.com - and - Alexander Dimitrief, Esq. Kirkland & Ellis LLP 200 East Randolph Drive, Suite 6100 Chicago, IL 60601 Phone: (312) 861-2000 E-mail: alex.dimitrief@kirkland.com UNICO INC: Faces Calif. Suit Over “Illegal” Reverse Stock Split --------------------------------------------------------------- Unico Inc. is facing a class-action complaint filed Dec. 14 in the U.S. District Court for the Southern District of California, alleging it is planning an illegal reverse stock split that will dilute shareholders' ownership from 96 percent of common shares to less than 1 percent, and increase company directors' ownership from 1 percent to nearly 50 percent, the CourtHouse News Service reports. According to the complaint, on Nov. 20, Unico filed a Definitive Proxy Statement with the SEC disclosing that it will hold a special shareholders meeting on Dec. 21 in San Diego, California, at which time, the shareholders witll vote on a reverse stock split. According to the Proxy Statement, an approval of the reverse split will enable Unico to effect, during a six-month period, a reserve stock split whereby every 500 currently outstanding shares would be exchanged for one new share. Unfortunately, Unico has not given the shareholders notification of the Special Shareholder Meeting in violation of Section 14(a) of the Securities Exchange Act of 1934 and in violations of Arizona corporation law. Named plaintiff Legacy Trading Group, LLC, seek, on behalf of a class of Unico, Inc. common shareholders, a temporary restraining order and preliminary and permanent injunction to enjoin Unico's holding of the Special Shareholders Meeting or alternatively to enjoin the implementation of the reserve stock split until proper notice has been given t all the shareholders. Plaintiff brings this class action pursuant to Federal Rule of Civil Procedure 23(b)(2) on behalf of all Unico, Inc. common shareholders, who were shareholders entitled to vote at Unico's Dec. 21 Special Shareholder Meeting, excluding Unico's directors, officers, and employee, or legal representatives. Plaintiff prays for the following relief: -- for a temporary restraining order and preliminary and permanent injunction enjoining the Dec. 21, 2007 meeting, or alternatively; -- for a temporary restraining order and preliminary and permanent injunction enjoining Unico from effecting the reverse stock split; -- for costs of suit; and -- for any further relief that the court may deem necessary and proper. The suit is "Legacy Trading Group, LLC et al. v. Unico, Inc., Case No. 07 CV 2344 L RBB," filed in the U.S. District Court for the Southern District of California. Representing plaintiffs are: Eric J. Benink, Esq. Vincent D. Slavens, Esq. Krause Kalfayan Benink & Slavens, LLP 625 Broadway, Suite 635 San Diego, CA 92101 Phone: (619) 232-0331 Fax: (619) 323-4019 UNITED SCIENTIFIC: Recalls Magnets on Paint's High Lead Level ------------------------------------------------------------- United Scientific, of Waukegan, Illinois, in cooperation with the U.S. Consumer Product Safety Commission, is recalling about 153,000 Horseshoe Magnets. The company said the surface paint on the magnets contains high levels of lead, violating the federal lead paint standards. No injuries have been reported. This recall involves horseshoe-shaped magnets sold in five sizes. The horseshoes have red paint on the surface of the magnet. Product numbers included in the recall are: SHM020 (two inch), SHM030 (three inch), SHM040 (four inch), SHM050 (five inch), and SHM060 (six inch). These recalled magnets were manufactured in India and are being sold by independent distributors nationwide from March 1995 through September 2007 for about $1. Distributors sold the products to schools for use in science classes. Picture of recalled magnets: http://www.cpsc.gov/cpscpub/prerel/prhtml08/08128.jpg Consumers are advised to immediately stop using these products and contact United Scientific to receive a replacement product. For additional information, contact United Scientific toll-free at (888) 284-8570 between 9 a.m. and 5 p.m. CT Monday through Friday, or email: consumeraffairs@unitedsci.com. VICTORIA'S SECRET: Recalls Stuffer Bear Due to Choking Hazard ------------------------------------------------------------- Victoria's Secret, of Columbus, Ohio, in cooperation with the U.S. Consumer Product Safety Commission, is recalling about 80 Holiday Cosmetics Stuffer Bears. The company said the neck medallion zipper pull can detach, posing a choking hazard to young children. No injuries have been reported. The cosmetic stuffer bear was designed to hold cosmetics and/or gift cards. It is a plush bear with a zipper down the body. A “VS” neck medallion serves as the zipper pull. The bear was sold in pink and leopard. These recalled stuffer bears were manufactured in China and are being sold by Victoria's Secret Web site: http://www.victoriassecret.comduring October 2007 for about $8. Picture of recalled stuffer bears: http://www.cpsc.gov/cpscpub/prerel/prhtml08/08529.jpg Consumers are advised to immediately stop using the stuffer bears and keep out of the reach of young children. Victoria's Secret has sent consumers a postage paid return mailer enclosed. Customers returning the bear will receive a refund, postage and a $10 gift certificate. For additional information, contact Victoria's Secret toll-free at (877) 260-8419 between 8 a.m. and 4:30 p.m. ET Monday through Friday or visit the firm's Web site: http://www.victoriassecret.com. Asbestos Alerts ASBESTOS LITIGATION: Fisher Scientific Motion to Strike Affirmed ---------------------------------------------------------------- The Superior Court of Connecticut, Judicial District of Hartford, affirmed the motion to strike filed by Fisher Scientific Co. and its alleged successors (Fisher), in an asbestos-related insurance action filed by First State Insurance Co. The suit was styled First State Insurance Co. v. Fisher Scientific Company LLC et al. Judge Dubay entered judgment of Case No. CV074030045S on Oct 23, 2007. This action sought a declaratory relief relating to certain liability insurance policies issued by First State and five other Defendant-Insurers to Fisher. Hundreds of Underlying Asbestos Suits have been filed against Fisher Scientific Co. LLC in jurisdictions across the country, including Connecticut. One of the Underlying Asbestos Suits is Jagid v. Bell Asbestos Mines Ltd., et al., Docket No. L-2365-02-AS (N.J.Super.Ct., Middlesex County), which Fisher Scientific Co. LLC settled on or about April 20, 2007 for a confidential settlement amount. Fisher Scientific Co. LLC has demanded that First State, an excess earner that issued a single excess liability policy for the policy period July 1, 1981 to July 1, 1982, fund the entire settlement amount. First State sought declarations regarding: (i) Whether and to what extent Fisher Scientific Co. LLC, Fisher Scientific International Inc., and/or Fisher Scientific Operating Co. have rights to coverage under the First State excess liability policy issued to Fisher Scientific Co.; (ii) Whether and to what extent First State is obligated to indemnify Fisher Scientific Co. LLC, for the Jagid settlement; (iii) Whether and to what extent First State is obligated to pay defense or indemnity costs incurred in connection with the other Underlying Asbestos Suits; (iv) Whether and to what extent First State is entitled to contribution from any or all of the named defendants to the extent First State is required to pay more than its appropriate pro rata share of covered defense or indemnity costs incurred in the Underlying Asbestos Suits, including without limitation Jagid; (v) Whether and to what extent First State is entitled to recover the attorneys fees, expenses and costs incurred in connection with this action; and (vi) Such other and further relief as the Court may deem just and proper. By motion date June 26, 2007, Fisher has moved to strike the entire complaint of First State. Because the Superior Court found that First State's complaint should be stricken in its entirety due to the failure of First State to append the certification required in Practice Book s 17-56(b) and due to the court's ruling of same date on Fisher's Motion To Stay, the Court put off for another day the other grounds set forth in Fisher's motion. PHV Ruggeri James P., Hogan & Hartson, Washington, D.C., Tinley Nastri Renehan & Dost, Waterbury, represented First State Insurance Co. Murtha Cullina LLP, Hartford, Conn., PHV Tucker Seth A., Covington & Burling LLP, Washington, D.C., represented Fisher Scientific Company LLC, Fisher Scientific International Inc. and Fisher Scientific Operating Co. Morrison Mahoney LLP, Hartford, Conn., represented Continental Casualty Co. Cooney Scully & Dowling, Hartford, Conn., represented Fireman's Fund Insurance Co. Dwight Kern, Singer & Mahoney Ltd., New York, represented National Union Fire Insurance Co of Pittsburgh PA. Day Pitney LLP, Hartford, Conn., represented Travelers Casualty & Surety Co. Pullman & Comley LLC, Bridgeport, Conn., represented Century Indemnity Co. successor. ASBESTOS LITIGATION: Mass. Court Junks Gonzalez's Injury Claim ---------------------------------------------------------------- The Superior Court of Massachusetts, Middlesex County, granted the dismissal motion filed by defendants Steven Johnson, DEC-TAM Corp., and Michael Morris, in an injury action involving asbestos removal filed by Ramon Gonzalez. The suit was styled Ramon Gonzalez, Individually and as Father and Next Friend of Rosemary Gonzalez et al. v. Steven Johnson et al. Justice H.J. Smith, Jr. entered judgment of Case No. MICV200602871C on Oct. 20, 2007. On Aug. 29, 2004, Mr. Gonzalez was performing asbestos removal work in New Canaan, Conn., when he fell from scaffolding and sustained injuries. At the time of the accident, Mr. Gonzalez was working for Methuen Abatement Staffing Inc., which DEC-TAM had engaged to conduct the asbestos removal. In his complaint, Mr. Gonzalez alleged that DEC-TAM, Mr. Johnson, and Mr. Morris were negligent by failing to maintain a safe construction site and by failing to comply with the safety requirements of the Occupational Safety and Health Administration and Connecticut law. Mr. Gonzalez brought three negligence counts and one count for loss of consortium on behalf of his children, Rosemarie Gonzalez and Randy Gonzalez. According to Mr. Gonzalez's complaint, Mr. Johnson is a DEC-TAM supervisor and Mr. Morris is a DEC-TAM foreman. The defendants moved to dismiss under Mass.R.Civ.P. 12(b)(6) on the basis that Mr. Gonzalez's complaint is barred under Connecticut's statute of limitations on negligence claims. The Superior allowed the defendants' motion to dismiss. ASBESTOS LITIGATION: Ohio Appeals Court Affirms Award for Marks ---------------------------------------------------------------- The Court of Appeals of Ohio, 11th District, Trumbull County, affirmed the judgment entry of the Trumbull County Court of Common Pleas, which entered a verdict in favor of Ronald Marks, in an action filed against Dean E. Swartz that involved asbestos litigation. The suit is styled Ronald Marks, Plaintiff-Appellee, v. Dean E. Swartz, Defendant-Appellant. It is a Civil Appeal from the Court of Common Pleas, Case No. 04 CV 1613. Judges Cynthia Westcott Rice, Colleen Mary O'Toole and Timothy P. Cannon entered judgment of Case No. 2007-T-0008 on Nov. 9, 2007. In 1998, Mr. Marks was contacted by Mr. Swartz, an attorney from Washington D.C. Mr. Swartz indicated he was pursuing several cases involving asbestos litigation in the Trumbull County Court of Common Pleas. Mr. Marks advised Mr. Swartz that had no experience in asbestos litigation. Mr. Swartz was not concerned with Mr. Marks' lack of experience in this area of tort and indicated he would shoulder primary responsibility for all aspects of the litigation. Mr. Swartz agreed to pay Mr. Marks 25 percent of all attorney fees generated from the cases in which he served as local counsel. The agreement was memorialized on May 13, 1998, by a letter sent by Mr. Swartz. Shortly thereafter, Mr. Marks received a large box of materials from Mr. Swartz containing documents related to a pending case involving the death of one Michael Missik. Mr. Marks reviewed the materials and began acquainting himself with issues which arise in asbestos litigation. During Mr. Marks' involvement in the Missik case, he also became involved in three other asbestos related cases with Mr. Swartz: the Kubik case, the Lukac case, and the Barone case. On June 22, 1999, the parties entered into a second agreement, similar to the Missik agreement regarding the Lukac case. The Missik Case ultimately went to trial and resulted in a large verdict for Mr. Marks. Mr. Swartz expressed appreciation to Mr. Marks for his assistance and paid him the agreed 25 percent of the attorney fees for his services. In a letter dated Jan. 9, 2003, Mr. Swartz sent Mr. Marks another check representing 25 percent of the attorney fees arising from settlements with defendants in the Kubik case and Lukac case. In February 2003, the Kubik claim against John Crane Co. came for trial which resulted in a defense verdict. In May 2003, the trial of Lukac v. John Crane Co. was scheduled to commence. That case was scheduled for a trial in June 2003. After deliberations, the jury awarded a verdict in Mr. Lukac's favor for US$1,250,000 in compensatory damages and US$500,000 in punitive damages. After the verdict was announced, the parties and Mr. Lukac went to a local pub for a drink. After ordering, Mr. Swartz asserted, in front of Mr. Lukac, that he wanted to speak with Mr. Marks regarding his unethical conduct at trial. Mr. Marks maintained he had no idea what Mr. Swartz was referencing. Mr. Marks demanded Mr. Swartz retract his allegation; Mr. Swartz refused and, seven days later, Mr. Marks announced he would no longer serve as "co-counsel" with Mr. Swartz. On Aug. 18, 2003, Mr. Swartz formally fired Mr. Marks thereby relieving him of his obligations as local counsel. At this point, motions for JNOV and new trial were still pending in the Lukac matter. Once the motions were overruled, Mr. Swartz was able to negotiate a post-verdict settlement with the defendant in the Lukac matter. Mr. Swartz received US$500,000 in fees resulting from the settlement. Mr. Marks was never paid for his work in the Lukac litigation. On Jan. 12, 2004, Mr. Marks sued Mr. Swartz for breach of contract. Mr. Swartz moved to dismiss the matter. After Mr. Swartz's motion to dismiss was denied, he filed his answer that included a jury demand. During the pendency of the action, Mr. Swartz filed a motion for summary judgment repeating the jurisdictional arguments. This motion was denied. The case proceeded to a jury trial on Nov. 6, 2006. After Mr. Marks rested, Mr. Swartz moved for directed verdict, again asserting his jurisdictional challenge. The motion was overruled and the jury returned a verdict in Mr. Marks' favor and awarded him damages in the amount of US$155,000. On Nov. 8, 2006, the trial court entered judgment on the verdict. On Nov. 13, 2006, Mr. Marks filed a motion for prejudgment interest. On Feb. 8, 2007, the trial court granted the motion and awarded Mr. Marks US$18,125 in prejudgment interest. The judgment entry of the Trumbull County Court of Common Pleas endorsing the jury's verdict is hereby affirmed. Martin F. White, Warren, Ohio, represented Ronald Marks. Dean E. Swartz, pro se, New Albany, Ohio. ASBESTOS LITIGATION: Court Denies Remand Motion in Contois Case ---------------------------------------------------------------- The U.S. District Court, D. Connecticut, denied Laura Contois' motion to remand in an asbestos-related lawsuit filed against Buffalo Pumps Inc., General Electric Co., and other defendants. The suit is styled Laura Contois, Executrix of the Estate of Hugo Mortenson, Plaintiff, v. Able Industries Inc., et al., Defendants. U.S. District Judge Alvin W. Thompson entered judgment of Civil Case No. 3:07CV01328(AWT) on Nov. 13, 2007. By a complaint dated Sept. 10, 2004, and amended on Dec. 30, 2004, Ms. Contois initiated an action in Connecticut Superior Court seeking damages for injuries allegedly sustained as a result of Mr. Mortenson being exposed to asbestos-containing materials. Mr. Mortenson had been diagnosed with malignant mesothelioma in August 2002 and died on Dec. 27, 2002. On Aug. 31, 2007, Buffalo Pumps Inc. filed a notice of removal of the case to federal court under the federal officer jurisdiction statute. The petition for removal was subsequently joined by General Electric Co. Ms. Contois has moved to remand the case to state court on the grounds that (1) the notice of removal was untimely filed, and (2) the defendants have failed to satisfy the requirements for federal officer jurisdiction. Accordingly, the District Court denied Ms. Contois' motion to remand. ASBESTOS LITIGATION: Mallinckrodt Faces 10,398 Pending Cases ---------------------------------------------------------------- Covidien Ltd. states that, as of Sept. 28, 2007, about 10,398 asbestos liability cases were pending against its subsidiary Mallinckrodt Inc., according to the Company's annual report filed with the U.S. Securities and Exchange Commission on Dec. 13, 2007. As of June 29, 2007, Mallinckrodt had about 10,370 asbestos liability cases pending against it. (Class Action Reporter, Aug. 31, 2007) Mallinckrodt is named as a defendant in personal injury lawsuits based on alleged exposure to asbestos-containing materials. Consistent with the national trend of increased asbestos-related litigation, the Company has observed an increase in the number of these lawsuits in the past several years. Most of the cases involve product liability claims, based principally on allegations of past distribution by a former Mallinckrodt business of heat-resistant industrial products incorporating asbestos. A limited number of the cases allege premises liability, based on claims that individuals were exposed to asbestos while on Mallinckrodt’s property. Each case typically names dozens of corporate defendants in addition to Mallinckrodt. The complaints seek monetary damages for personal injury or bodily injury resulting from alleged exposure to products containing asbestos. The Company's involvement in asbestos cases has been limited because Mallinckrodt did not mine or produce asbestos. Hamilton, Bermuda-based Covidien Ltd. develops, manufactures, and sells healthcare products for use in clinical and home settings. The Company operates through five segments: Medical Devices, Pharmaceutical Products, Imaging Solutions, Medical Supplies, and Retail Products. For fiscal 2007, the Company generated net sales of US$10.2 billion and a net loss of US$342 million. ASBESTOS LITIGATION: J.C. Penney Records $63M Liability at Feb. ---------------------------------------------------------------- J.C. Penney Company Inc., as of Feb. 3, 2007, recorded US$63 million as management’s best estimate for the Company’s total potential environmental liabilities, including asbestos liabilities, according to the Company's quarterly report filed with the U.S. Securities and Exchange Commission on Dec. 12, 2007. As of Feb. 3, 2007, the Company estimated its total potential environmental liabilities to range from US$52 million to US$87 million. This estimate covered potential liabilities primarily related to underground storage tanks, remediation of environmental conditions involving the Company’s former Eckerd drugstore locations, and asbestos removal in connection with approved plans to renovate or dispose of Company facilities. Through the 2007-3rd quarter, environmental reserves were reduced by about US$14 million due to the completion of certain renovations, the sale of certain properties and changes in plans to renovate certain facilities. Plano, Tex.-based J.C. Penney Company Inc. is a department store, catalog, and e-commerce retailer operating in the U.S. In 2004, J.C. Penney Co. sold its Eckerd drugstores chain to The Jean Coutu Group and CVS for US$4.5 billion. The retailer runs more than 1,000 JCPenney department stores throughout the U.S. and Puerto Rico. ASBESTOS LITIGATION: 48 Cos. Sued in Ill. For Laborer's Death ---------------------------------------------------------------- Lawrence J. McTaggart's estate, on Dec. 11, 2007, filed an asbestos suit against 48 defendant corporations in Madison County Circuit Court, Ill., The Madison St. Clair Record reports. The estate claims Mr. McTaggart was exposed to asbestos while employed as a steamfitter, mechanic, construction worker, laborer and truck driver at various locations in Illinois and Missouri from 1941 to 1981. The suit brought by his son, Lawrence E. McTaggart, states that the elder Mr. McTaggart resided somewhere in Illinois and was diagnosed with mesothelioma on Oct. 13, 2006. The suit claims the elder McTaggart's exposure to asbestos fibers was completely foreseeable and could or should have been anticipated by the defendants. Some of the defendants include American Standard Companies Inc., Chrysler LLC, Ford Motor Co., General Electric Co., General Motors Corp., John Crane Inc., Owens-Illinois Inc., and Young Insulation Group of St. Louis. The younger Mr. McTaggart claims that during the course of his father's employment and during home and automotive repairs, he was exposed to and inhaled, ingested or otherwise absorbed asbestos fibers emanating from certain products he was working with and around. The younger Mr. McTaggart claims the defendants knew or should have known that the asbestos fibers contained in their products had a toxic, poisonous and highly deleterious effect upon the health of people. The younger Mr. McTaggart alleges that the defendants included asbestos in their products even when adequate substitutes were available and failed to provide any or adequate instructions concerning the safe methods of working with and around asbestos. The younger Mr. McTaggart also claims that the defendants failed to require and advise employees of hygiene practices designed to reduce or prevent carrying asbestos fibers home. As a result of the alleged negligence, the younger Mr. McTaggart claims his father was exposed to fibers containing asbestos. He developed a disease caused only by asbestos which has disabled and disfigured him, prior to his death, the complaint states. The younger Mr. McTaggart also claims his father's next-of-kin have been deprived of his means of support and have lost his society in addition to spending substantial sums of money for the funeral and burial. The complaint states that the younger Mr. McTaggart claims his dad suffered "great physical pain and mental anguish which hindered and prevented him from pursuing his normal course of employment, thereby losing large sums of money." The younger Mr. McTaggart also claims that he has sought, but been unable to obtain, full disclosure of relevant documents and information from the defendants leading him to believe the defendants destroyed documents related to asbestos. The younger Mr. McTaggart claims as a result of each defendant breaching its duty to preserve material evidence by destroying documents and information he has been prejudiced and impaired in proving claims against all potential parties. Represented by Shane Hampton of SimmonsCooper in East Alton, Ill., the younger Mr. McTaggart seeks compensatory damages in excess of US$700,000, plus punitive damages. Case No. 07 L 1054 has been assigned to Circuit Judge Dan Stack. ASBESTOS LITIGATION: Developer to Pay $450T Fine to Mo. State ---------------------------------------------------------------- According to a settlement agreement with the State of Missouri, it will cost Community Development Corporation of Kansas City (CDC-KC), a developer of a large retail and residential project in Kansas City, US$450,000 for violating Missouri asbestos laws, The Kansas City Star reports. Of the US$450,000, US$100,000 will go into green initiatives that could turn Citadel Plaza from a contaminated tract into one of the most visionary environmental projects in the city. CDC-KC also will pay a civil penalty of US$50,000 and will spend US$300,000 removing the asbestos that remains at the site, according to the agreement. The US$50,000 will be paid to the Jackson County School Fund. CDC-KC is the nonprofit developer of the financially troubled Citadel Plaza, an US$85 million redevelopment project that includes a 35-acre shopping center promising a full-service grocery, restaurants and other retailers. It has been in the planning stage since the 1990s. The firm was accused in 2006 of tearing down more than 100 homes and burying tons of asbestos-containing materials at the construction site. Tons of asbestos debris also were left lying around the neighborhood where children often played. A federal case also is pending, according to a memo written in December 2007 by City Manager Wayne Cauthen for Mayor Mark Funkhouser. Although the U.S. Environmental Protection Agency would not publicly confirm the investigation, Mr. Cauthen’s memo said “the investigation is still open.” Bill Threatt, CDC-KC chief executive officer, in 2006 said in an interview that he never knew that federal, state and local laws required asbestos inspections. In a letter to Mr. Cauthen, he wrote that CDC-KC was “completely flabbergasted” after learning about the asbestos laws. As part of the settlement, CDC-KC will spend at least US$100,000 on environmentally friendly projects. In addition, CDC-KC must incorporate energy efficiency into the Citadel Plaza design. That would include using highly reflective roofing materials and capturing rainwater from rooftops for watering plants. Initially the Missouri Department of Natural Resources wanted CDC-KC to pay a cash penalty of US$250,000. However, CDC-KC appealed to the attorney general’s office and reached a settlement that reduced the cash penalty to US$50,000. CDC-KC will spend at least US$300,000 to implement a plan that “provides for the safe and lawful removal” of the asbestos that was buried at the site. Besides CDC-KC, several others were cited by the state for their part in handling the debris. Delroy Fadell, who was tearing down some of the houses and hauling some of the waste for CDC-KC, was cited but has never been found, and neither have several other subcontractors, the attorney general’s office said. ASBESTOS LITIGATION: Ore. Hazard Cleanup Lacks Funding, EPA Says ---------------------------------------------------------------- The U.S. Environmental Protection Agency says there may not be enough funds to pay for asbestos cleanup at the North Ridge Estates subdivision near Klamath Falls, Ore., the Associated Press reports. The asbestos is from wall boards of three military barracks used several decades ago. The barracks were torn down. However, the asbestos remained. The EPA had hoped to pay for the cleanup by selling the 19 houses that are in receivership at the subdivision. The cost of a potential cleanup is unknown because the EPA is still in the process of deciding what method it will choose to remove the asbestos. ASBESTOS LITIGATION: Ship-Breakers Mull “Outsourcing” of Removal ---------------------------------------------------------------- Ship-breakers working in Asia's largest ship-breaking yard in Alang, India, are considering a proposal to “outsource” the asbestos removal process to a specialized agency, The Times of India reports. If this happens, hundreds of laborers in the Alang shipyard may be saved from the hazards of asbestosis. Nikhil Gupta, joint secretary, Ship Re-cyclers Association of India, said, “We are trying to tie-up with two or three companies and outsource the asbestos removal process completely.” He added that nailing the deal may take some time. Alang has been criticized by environmentalists for its dangerous ship-breaking practices. A number of workers have fallen prey to asbestosis. Alang’s notoriety has started affecting business of late. The beaching and breaking of two ships in the last two years was stalled. French warship La Clemenceau returned from the shores following a major controversy over its asbestos content, while the world’s longest cruise-liner Blue Lady’s arrival triggered a major legal battle which went up to the Supreme Court. Moreover, a rise in ship-breaking activities in Pakistan and Bangladesh, Alang’s two main rivals, and sharp fall in steel prices have hit business. However, sources say there are already 35 ships awaiting cutting permission from the government and 20 are on their way. ASBESTOS LITIGATION: Wear Valley Asbestos Scandal Probe Underway ---------------------------------------------------------------- The inquiry into an asbestos scandal involving the Wear Valley District Council's role in the asbestos matters at Woodhouse Close Leisure Complex in Bishop Auckland, U.K., has commenced. Independent assessors will try to establish why the Council ignored reports about asbestos levels at Woodhouse Close. In August 2007, the Council was fined GBP18,000 by Government health inspectors after staff were allowed to work unprotected in the center's boiler room for five years, even though bosses had been warned of the danger. The inquiry is ongoing at the Council's Civic Centre headquarters, in Crook, County Durham. The Council was told about the asbestos in 2001, but did nothing to treat it, or to protect staff from the danger, until January 2005, when a maintenance worker found out about the report and complained to the Health and Safety Executive. Richard Bishop, the inspector who led the investigation, described the breach as the worst he had ever seen. ASBESTOS LITIGATION: Australian Defense Officers' Health at Risk ---------------------------------------------------------------- Health groups and unions say that Australian defense personnel are at risk of exposure to asbestos because the defense forces still use it, The Age reports. The army, navy and air force will continue to use asbestos in equipment like vehicle brake linings, engine gaskets, and door seals until 2010 after winning a three-year extension to its exemption. The Australian Defence Force says it has to use asbestos products but critics say there are non-asbestos alternatives. Leigh Hubbard, the executive director of Asbestos Diseases Society of Victoria, told The Age that the exemption was likely to see “another 10, 20, 30, who knows how many people, contract a asbestos-related disease.” In 2001, the National Occupational Health and Safety Commission prohibited the use of asbestos in all Australian workplaces from January 2004. The Defence Force, along with other industries in which asbestos use was widespread, was given a three-year exemption by the commission's successor, the Australian Safety and Compensation Council. With its new exemption, the Defence Force now has until December 2010 to stop using chrysotile, or white asbestos. The navy uses asbestos in more than 130,000 pieces of equipment, mostly in insulation, packaging and gaskets. Some ship bulkheads also contain asbestos. The air force's Orion P3 aircraft and F-111 fighter jets have asbestos in gaskets, brake linings, seals and fire barriers, while the army's Kiowa helicopters. Some of its Black Hawks still contain asbestos. The Defence Force also uses asbestos parts like brake linings in general vehicles such as Land Rovers and trailers. ASBESTOS LITIGATION: Board Ruling in Karolowski Action Affirmed ---------------------------------------------------------------- The Supreme Court, Appellate Division, 3rd Department, New York, upheld a Workers’ Compensation Board ruling, which ruled that Peter Karolowski sustained two asbestos-related occupational diseases. The suit is styled In the Matter of the Claim of Peter Karolkowski, Claimant, v. Wolff & Munier Inc., et al., Appellants, and Employers Insurance Company of Wausau et al., Respondents. Workers' Compensation Board, Respondent. Judges Mercure, Peters, Spain, Carpinello, and Mugglin entered judgment of the case on Nov. 15, 2007. This was an appeal from a decision of the Workers' Compensation Board, filed Dec. 30, 2005, which ruled that Mr. Karolowski sustained two causally related occupational diseases. Mr. Karolowski, a sheet metal worker, was exposed to asbestos in the course of his employment with Wolff & Munier Inc. Employers Insurance Company of Wausau was Wolff's workers' compensation carrier from January 1988 until February 1994. The State Insurance Fund (hereinafter the carrier) was Wolff's carrier from April 14, 1994 until Wolff ceased its business operations later in 1994. When Mr. Karolowski was diagnosed with colon cancer on July 21, 1992, he stopped working and never resumed employment. In March 1994, he filed a claim for workers' compensation benefits, listing both asbestos related colon cancer and asbestosis as his injuries. On June 13, 1995, Mr. Karolowski was evaluated by internist Susan Daum, who diagnosed him with pleural asbestosis and informed him that his exposure to asbestos was a contributing factor in the development of his colon cancer. After a hearing at which Mr. Karolowski and three physicians testified, the Workers' Compensation Law Judge (WCLJ) determined that there was sufficient proof that Mr. Karolowski suffers from an occupational disease of "asbestos related pleural disease," but insufficient proof of asbestos related colon cancer. After a review of that decision by the Workers' Compensation Board, the WCLJ decision was modified to find sufficient evidence of asbestos related colon cancer. The Board set a date of disablement for each of the two conditions: July 21, 1992 for colon cancer and June 13, 1995 for asbestos related pleural disease. Contending that the Board erred, in setting two dates of disablement, State Insurance noted Mr. Karolowski's filing of one C-3 claim form and the fact that the colon cancer is the only disabling disease. The Supreme Court has noted and State Insurance acknowledged that "there is no provision in the Workers' Compensation Law which specifically requires the filing of separate claims for discrete occupational diseases." The Supreme Court found no legal authority to support State Insurance's position and no evidence that either of these dates is erroneous. As to the carrier's contention that Mr. Karolowski’s failure to file a second claim resulted in its potential loss of defenses, the Supreme Court found such claim both speculative and premature. The Supreme Court affirmed. Gregory J. Allen, State Insurance Fund, N.Y., (Vickie R. Cassidy of counsel), represented Wolff & Munier Inc. and the other appellants. Stewart, Greenblatt, Manning & Baez, Syosset (Patrick M. Conroy of counsel), represented Employers Insurance Company of Wausau and another respondent. ASBESTOS LITIGATION: Court Upholds Board Ruling in Colella Case ---------------------------------------------------------------- The Supreme Court, Appellate Division, 3rd Department, New York, upheld the Workers’ Compensation Board ruling, which favored Brian Charles Colella, in an asbestos-related compensation action filed against New York City Health and Hospitals Corp. Judges Cardona, Crew III, Peters, Spain, and Carpinello entered judgment of the case on Nov. 15, 2007. Appeal from a decision of the Workers' Compensation Board, filed on May 23, 2006, which ruled that Mr. Colella was discriminated against by New York City Health and Hospitals Corp. in violation of Workers' Compensation Law ss 120. Mr. Colella, an electrician with provisional employee status, was exposed to asbestos during a hospital renovation project. He thereafter filed with his employer New York City Health and Hospitals Corp. an occupational injury report regarding the exposure and discussed his intention to assert a workers' compensation claim. Three days later, Mr. Colella received a work performance assessment which indicated that he met the standards in all respects. Five days after that, he was terminated. Mr. Colella testified that, when he asked New York City Health and Hospitals why he was fired, he was told "we don't have to tell you." Alleging that he was wrongly discharged for asserting a workers' compensation claim, he filed a complaint under Workers' Compensation Law ss 120. Following a hearing at which New York City Health and Hospitals failed to appear, a Workers' Compensation Law Judge upheld the complaint and the Workers' Compensation Board thereafter affirmed that decision. New York City Health and Hospitals now appealed. The Supreme Court affirmed the Workers’ Compensation Board decision. Michael A. Cardozo, Corporation Counsel, N.Y., represented New York City Health and Hospitals Corp. Andrew M. Cuomo, Attorney General, New York City (Steven Segall of counsel), represented Workers' Compensation Board. ASBESTOS LITIGATION: Appeal Court Junks Rosen Suit v. University ---------------------------------------------------------------- The Court of Appeal, 1st District, Division Four, California, affirmed the judgment of the Alameda County Superior Court in favor of the Regents of the University of California, in an asbestos-related action filed by Debora Rosen and her family on behalf of Sherwin “Sandy” Rosen. The suit is styled Debora Rosen, Individually and as Personal Representative, etc., et al., Plaintiffs and Appellants, v. Regents of the University of California, Defendant and Respondent. Judges Reardon, Sepulveda, and Rivera entered judgment of Case No. A113267 on Nov. 14, 2007. Dr. Rosen was born in 1938. When he was five or six years old in 1943 and 1944, his father worked with asbestos as an upholsterer at a naval shipyard. The father wore his often dirty work clothes home at the end of the day and sometimes hugged his son when he arrived at home. The child's mother would wash these clothes, sometimes in her son's presence. In this manner, Dr. Rosen experienced bystander exposure to asbestos as a child. From 1958 through July 1962, Dr. Rosen was a dental student at the University of California, San Francisco, in premises maintained by the Regents. While at dental school, over the course of four years, he used asbestos dental tape supplied by the school bookstore for use in dental casting. During the first two years of dental school, students handled asbestos tape for about five minutes once every two or three weeks. During the last two years of school when students were working with patients, the asbestos tape was used more frequently. In this manner, Dr. Rosen was also exposed to asbestos. In August 1960, Dr. Rosen married Debora Ann Semenov, now Debora Rosen. He practiced dentistry from 1962 until 2001. In July 2001, Dr. Rosen was diagnosed with mesothelioma. He died three months later of complications from mesothelioma. In April 2002, the Rosens filed a wrongful death complaint and survival action against the Regents and others, alleging causes of action against the Regents for negligence, products liability, and premises liability. A first amended complaint was filed in May 2002, adding causes of action against the Regents for making false representations and for loss of consortium. The Regents answered this complaint in July 2002. In July 2003, the Rosens filed a second amended complaint. By the time the case against the Regents went to trial in October 2005, the only causes of action remaining to be determined by the jury were negligence and products liability claims. In October 2005, the Regents moved for nonsuit on all remaining causes of action, arguing that the Rosens had not established sufficient evidence of causation to permit the issues to be presented to the jury. The products liability causes of action went to the jury. In November 2005, judgment entered for the Regents and against the Rosens, consistent with this strict liability verdict and its order granting nonsuit on negligence. In January 2006, the trial court denied the Rosens' motions for new trial and for judgment notwithstanding the verdict. Orders denying these motions were filed in February 2006. The Rosens appealed from the judgment. The Appeals Court affirmed the trial court's judgment. Mary Elizabeth Pougiales, Nancy Bridget Thorington, Brayton Purcell LLP, Novato, Calif., represented Debora Rosen and other Plaintiffs and Appellants. Patrick Lee Moore, Denise Serra, Gary A. Watt, McNamara, Dodge, et al., Walnut Creek, Calif., represented Regents of the University of California. Clarke Benbow Holland, LHB Pacific Law Partners LLP, Berkeley, Calif., Lisa L. Kirk, LHB Pacific Law Partners LLP, Emeryville, Calif., Keith Reyen, Quim Reyen & Pryor, San Francisco, represented Kerr Corp. ASBESTOS LITIGATION: Appeals Court Favors Isley in Casper Action ---------------------------------------------------------------- The Court of Appeals of Indiana affirmed the Full Worker's Compensation Board of Indiana's order, which dismissed the asbestos-related claim of William Pete Casper's estate against his former employer L.E. Isley & Sons Inc. The suit is styled William Pete Casper, Appellant-Plaintiff, v. L.E. Isley & Sons Inc., Appellee-Defendant. Judges Sharpnack, Riley, and Friedlander entered judgment of Case No. 93A02-0702-EX-179 on Nov. 20, 2007. Appeal from the Indiana Worker's Compensation Board; The Honorable Linda Peterson Hamilton, Chairman; Cause No. C-173494. Mr. Casper was employed by Isley from 1961 until January 2005, when he was diagnosed with mesothelioma. On March 1, 2005, he filed an Application for Adjustment of Claim with the Board. On March 7, 2005, Mr. Casper filed suit in Marion County Superior Court against multiple defendants who he alleged were responsible for his exposure to asbestos. He died from mesothelioma on Oct. 26, 2005. The Estate settled its claims with some of the defendants in November 2005. It then filed with the Board a Motion for a Finding of Bad Faith on the Part of Isley and/or Isley's Insurance Carrier. On March 16, 2006, Isley filed a motion to dismiss the Estate's Application for Adjustment of Claim. After a hearing held on May 16, 2006, the Single Hearing Member entered findings of fact and conclusions. The Board ruled that the matter be dismissed. The Estate raised one issue, which the Appeals Court revised and restated as whether the Board's dismissal of the Estate's application for worker's compensation was premature. The Appeals Court affirmed the Board's grant of Isley's motion to dismiss. Linda George, W. Russell Sipes, Aaron T. Milewski, George & Sipes, Indianapolis, represented William Pete Casper. Michael Patrick Dugan, Sally A. Voland Dugan Voland & Meagher, Indianapolis, represented L.E. Isley & Sons Inc. ASBESTOS LITIGATION: Court Issues Split Ruling in Brumley Action ---------------------------------------------------------------- The Court of Appeal, 1st District, Division 1, California, issued various rulings in the asbestos-related case filed by Carol Brumley against FDCC California Inc. and other defendants. The suit is styled Carol Brumley et al., Plaintiffs and Appellants, v. FDCC California Inc., et al., Defendants and Respondents. The Court handed down the ruling of Case No. A114840 on Nov. 19, 2007. The Court ordered that an opinion filed on Oct. 22, 2007 be modified. Plaintiffs conceded that the original non-cancer survivorship claims were barred by the five-year rule, but they contended that the wrongful death claims, Mrs. Brumley's loss of consortium claim, and the cancer survivorship claim should not have been dismissed. Plaintiffs conceded that the survivorship claims seeking recovery for William Brumley's non-cancer asbestos disease are barred by the five-year rule, but they argue that the remaining claims, including the wrongful death claims and the cancer survivorship claim, should not have been dismissed because those causes of action did not relate back to Mrs. Brumley's original personal injury claims. Plaintiffs also contended that the cancer survivorship claim should not have been dismissed because it does not relate back to the original claims for asbestosis and pleural disease. The trial court's judgment is reversed in part. Although Mrs. Brumley's original asbestosis and pleural disease claims, now asserted as survivorship claims are barred, plaintiffs' wrongful death claims, Mrs. Brumley's loss of consortium claim, and the cancer survivorship claim are not barred. The matter is remanded for further proceedings consistent with this decision. Appellants' petition for rehearing is denied. Nance Becker, Brayton Purcell, Novato, Calif., represented Carol Brumley and the other Plaintiffs and Appellants. Richard D. Dumont, Vasquez & Estrada, San Rafael, Calif., Theodore Thomas Cordery, Imai Tadlock Keeney & Cordery LLap, San Francisco, represented FDCC California Inc. and the other Defendants and Respondents. ASBESTOS LITIGATION: NL Ind. Granted Defense Verdict in Madison ---------------------------------------------------------------- During a rare Madison County, Ill., asbestos trial, NL Industries Inc. was granted a defense verdict last Dec. 14, 2007, The Madison St. Clair Record reports. Jurors rejected a claim brought by Harry Glass, who had asked for US$6,035,000 to compensate him for the asbestos exposure and fatal illness suffered by his wife, Mary Glass. He claimed she was exposed to asbestos dust he brought home from work decades ago at a Granite City, Ill., lead plant. Mr. Glass worked from 1952 to 1978 at National Lead Industries Inc., a predecessor of NL Industries. National Lead closed down in 1979. Mr. Glass claimed that the dust on his clothes led to his wife's mesothelioma which caused her death in 2004. Represented by Joe Vallort and Chauncey Cassidy of Chilton Yambert Porter & Young in Chicago, NL Industries not only chose not to call any witnesses at trial, it admitted only one exhibit and never retained an expert through the course of litigation. According to Mr. Vallort, a strategic decision was made well before trial that Mr. Glass's case involved relatively straight forward concepts and evidence which did not require expert testimony. Mr. Glass's team of lawyers, including Christian Hartley of Richardson, Patrick, Westbrook & Brickman, LLC in Charleston, S.C., and Randy Gori and Allyson Romani of Goldenberg Heller Antognoli Rowland Short & Gori, P.C. in Edwardsville, Ill., argued that the hazards of secondary asbestos exposure were well known at least by the 1960s and that National Lead made no effort to limit asbestos exposure to its employees during the time Mr. Glass worked at the plant. According to Mr. Glass, the products he worked with included generic pipe covering and block insulation, muds and cements, asbestos rope, asbestos cloth, asbestos seals, asbestos blankets, gummites, refractory materials and bricks, asbestos gloves and apparel, gaskets and packing, asbestos cement board, and pipe and friction materials. NL Industries argued that the risks of secondary exposure to asbestos were not well known during Mr. Glass's career and therefore, National Lead did not have to take the steps listed by Mr. Glass's expert. Associate Judge Tom Chapman presided over the Glass trial. The Glass case was tried using Illinois law which invokes the Lipke Rule. "Lipke" bars evidence that a plaintiff might have other possible sources of exposure. Evidence that Mary Glass may have been exposed from her own work career, or from asbestos furnace insulation installed by Mr. Glass at the family residence, could not be introduced at trial. ASBESTOS LITIGATION: U.K. Widow Settles with Wiltshire Council ---------------------------------------------------------------- Audrey Love, the widow of a Wiltshire, U.K. local, Derek Love, has reached an out-of-court settlement in her favor with the North Wiltshire Council, following Mr. Love's death that was linked to asbestos, Swindon Advertiser reports. Mr. Love died in 2006 after a lengthy illness linked to asbestos. Mrs. Love brought the claim because Mr. Love, during the course of his work as a plumber for the Council, was exposed to asbestos for long periods of time. Between 1960 and 1970, Mr. Love was employed by Calne and Chippenham Rural Council, which is now part of North Wiltshire district council. During the construction of houses in Corsham, Wiltshire, he had to install cold water tanks, drilling through asbestos and brushing away asbestos dust. Brigitte Chandler, Mrs. Love's lawyer, and a partner at Swindon law firm Charles Lucas and Marshall, said, “Mr. Love was exposed to asbestos regularly, often for up to five hours per day.” ASBESTOS LITIGATION: Melbourne Power Station Set for Demolition ---------------------------------------------------------------- Melbourne, Australia's power station, which was once riddled with asbestos, is set for demolition, with its 105-meter chimney on Lonsdale Street the first part of the building to go, The Age reports. Demolition will commence on Jan. 8, 2008. A Russian consortium, Soldis Capital, paid AUD7.6 million for the site in 2006. They have cleared the site of asbestos and are now clearing it of old buildings. The power station, with two other sites, is now in the running for Telstra Corporation Ltd.'s proposed new AUD1 billion headquarters, which will house 11,000 local employees under one roof. ASBESTOS LITIGATION: 6 Scotland Families Flee Due to Poisoning ---------------------------------------------------------------- Six families in Scotland face a desperate Christmas after an asbestos poisoning scare forced them to flee their homes, Daily Record reports. The evacuated families were put up in a hotel after the scare on Nov. 21, 2007. Nine adults and four children will spend a bleak festive season in temporary accommodation after workmen disturbed the lethal dust. Their homes have been gutted. Most of their belongings, including furniture and clothing, were destroyed and they have no idea when they will be able to return. Twelve flats were evacuated in Fraser Avenue, Inverkeithing, Fife, Scotland, after workers from Blantyre, Scotland-based ECG Group, a plumbing firm, disturbed the asbestos. They had been removing water tanks from attics. Following tests, six of the homes were ruled safe enough for residents to return. The families are still uncertain if they will be compensated for the loss of their possessions. Councilor Alice McGarry said the local authority is investigating the scare, adding that either the council or the contractors “will be liable, but that has not been established.” ASBESTOS LITIGATION: EPA Records 16 Actions v. Maryland Schools ---------------------------------------------------------------- The U.S. Environmental Protection Agency has recorded 16 asbestos-related enforcements against Maryland schools since September 2006, up from less than one per year from 2001 to 2006, Capital News Service reports. The 16 actions filed between September 2006 and September 2007 included everything from small private schools to some of the largest school systems in the state, according to a Capital News Service analysis of EPA data. The actions mostly involve problems with the paperwork schools must keep to track asbestos, and the increase is due to a rise in state inspections and stricter enforcement. However, the EPA does not take violations lightly. Penalties for schools in violation run up to US$6,500 per day, or schools can escape the fine by spending the same amount to bring themselves up to code. Major violators include school systems in Baltimore City and county. The EPA reported in September 2006 that the city spent US$305,730 to bring schools up to code, while the county spent US$245,538, all for violations related to record keeping. Mardel Knight, head of Maryland's asbestos inspection unit, said that schools are supposed to maintain asbestos management plans, but it is often not a top priority for busy educators. Ms. Knight's inspectors often find plans are missing or not updated. Sometimes school officials say they sent out a required annual notification, but cannot find a copy of it. Others do not have records of recent inspections. In the past, the EPA let the state give some schools a chance to bring themselves up to code before sending the inspections on to the federal agency, said Harry Daw, with the EPA's region III enforcement office. But in fiscal 2007, the EPA began requiring states send it all inspections directly for enforcement, Mr. Daw said. All schools containing asbestos, and that includes any school built before October 1998, are required to have asbestos management plans outlining where the material is and what steps are being taken to contain it. Schools must also annually notify parents and staff of the plans, train maintenance staff for asbestos safety and regularly inspect areas with asbestos. Since those regulations took effect, there has not been "one single record of a building occupant coming to harm from release of asbestos," said David Lever, director of Maryland's public school construction program. In 2005 and 2006, the Catholic school system spent US$72,000 to bring dozens of elementary schools up to code, according to EPA records. Ms. Knight said schools have no excuse for not complying with asbestos regulations. Maryland offers free workshops around the state that teach schools how to stay up to code. Ms. Knight said this year's workshops aimed at small schools, which make up a large portion of violations, were poorly attended. Ms. Knight suggested that any schools unsure of their compliance with asbestos regulations contact her unit in the Maryland Department of the Environment for advice. ASBESTOS LITIGATION: ADAO Set to Reveal Product Testing Results ---------------------------------------------------------------- The Asbestos Disease Awareness Organization, on Dec. 17, 2007, announced that they have received a request from the U.S. House of Representatives Committee on Energy and Commerce's Subcommittee on Environment and Hazardous Materials for the results of consumer products testing conducted by ADAO and announced at a Nov. 28, 2007 press conference at the National Press Club in Washington, D.C. The ADAO tested over 350 products including foods, drugs, toiletries, cosmetics, hardware, cleaning products and children's toys. Over 250 individual tests have been conducted, in which asbestos fibers were found in 18 products. Five products were confirmed by three independent, government certified laboratories to contain asbestos, including CSI Fingerprint Examination Kit, DAP 33 Window Glazing, DAP Crack Shot Spackling Paste, Gardner Leak Stopper Roof Patch and Scotch High Performance Duct Tape. Products were purchased from major retailers including Wal-Mart; CVS; Macy's; Toys-R-Us; and Bed, Bath, & Beyond. Congressman Albert Wynn (D-MD), Chairman of the Subcommittee on Environment and Hazardous Materials, requested a copy of the full report in a letter dated Dec. 4, 2007. Congressman Wynn's letter states, “I understand that the full report entitled 'The ADAO Product Testing Report' contains additional information on test results of products that was not publicly released. Therefore, as Chairman of the Subcommittee on Environment and Hazardous Materials that has jurisdiction over the Toxic Substances Control Act (TSCA), I request a copy of the full report. This will assist the Subcommittee in carrying out its legislative responsibilities with respect to a number of pending bills regulating the import, manufacture, and use of asbestos.” Congressman Wynn's letter goes on to state, “I also understand that the Asbestos Disease Awareness Organization has provided information about the asbestos content in products to the Environmental Protection Agency and the Consumer Product Safety Commission.” ADAO has not received a response from the Environmental Protection Agency and the Consumer Product Safety Commission in reference to the Product Testing Report sent on Nov. 28, 2007 and exposure continues, with toys continuing to be sold in various retail stores. ADAO, which is funded through voluntary contributions and staffed by volunteers, was founded by asbestos victims and their families in 2004. ASBESTOS LITIGATION: Geologist Says Ariz. Mine is Asbestos-free ---------------------------------------------------------------- Mimi Diaz, of the Arizona Geological Survey, says that there is no asbestos associated with mining operations in the Agua Fria River bed, The Arizona Republic reports. Ms. Diaz addressed concerns at a Maricopa County Mining District Recommendation Committee meeting that sand and gravel mines may be sending asbestos into the air. Ms. Diaz said that six kinds of minerals that form long, fibrous crystals fall into the category of asbestos and "not all are bad and cause lung cancer." Lyle Tuttle of Surprise, Ariz., said residents are concerned that mining companies are crushing used concrete that might contain asbestos. There are more than 20 mining operations in the Agua Fria, which is near communities like Surprise and Sun City, Ariz. Ms. Diaz said that when companies manufacture concrete, it is generally transported to a building site within 20 miles because of the expense of trucking it. So, if there no asbestos in the Agua Fria, the concrete from it is clean, she said. Ms. Diaz said Arizona ranked 31st out of 50 states for asbestos- related deaths, according to 2004 data. ASBESTOS LITIGATION: Guyana Univ. Awaits Approval of Removal Bid ---------------------------------------------------------------- Melvyn Sankies, University of Guyana's head of the technical team, on Dec. 13, 2007, said that the university is still awaiting the Ministry of Education's response to an asbestos report submitted more than three months ago, Starbroek News reports. Mr. Sankies said he did not know whether the ministry might have responded to Vice-Chancellor Dr. James Rose, but the technical team, which he heads is still awaiting word. Mr. Sankies said the team estimated the cost for the removal and replacement of material from the affected buildings at the university at some GYD200 million. He said some persons had suggested that the material be covered instead of removed and replaced as this would be a much cheaper exercise. However, Mr. Sankies said his team opted for the removal and replacement process, since covering the material would mean that the problem would remain and be a problem in the future. Mr. Sankies had also proposed that persons work through some weekends, with his team supervising, at the university doing what is known as "rendering" which is really closing up the damaged parts of the asbestos-affected areas to make the buildings safer until the dangerous material was removed. However, when the proposal was submitted, the bursary bluntly refused to release any money for payment. In August 2007, the university had announced that test results on material taken from buildings at UG had shown that many of the samples contained more than trace amounts of asbestos and a decision had been made for the urgent removal of all ceilings with the dangerous fibrous material. The UG release had said that Canadian laboratory, Resource Environmental Associates Limited (REA) to which some 131 samples were sent for testing had found that "many of the samples contain more than trace amounts of asbestos." The samples were taken from the older buildings that were built since around 1968, and these include the Faculties of Technology, Natural Sciences, Humanity, Health, Social Sciences, the library and the cafeteria. In examining the report, the team headed by Mr. Sankies, had indicated that two types of asbestos (amosite and chrysotile) had been found mainly in the ceiling and except for two panels, the walls did not contain asbestos. Head of the Department of Business and Management Studies Hector Edwards said that staff members were upset at the length of time the administration had taken to respond to their concerns. Mr. Edwards had said that the asbestos problem in the building was first noted in the 1980s and he had seen a 1998 report in which the university was urged to take action on the issue. Mr. Edwards had said that report came from the Ministry of Labor and there were earlier reports done, therefore the issue was not new to the university community. He said that the matter was raised again in 2005 but nothing was done. ASBESTOS LITIGATION: U.K. School Closed After Routine Inspection ---------------------------------------------------------------- The Marjorie Mclure School in Hawkwood Lane, Chislehurst, Bromley, U.K., was closed after a routine inspection found asbestos in the school kitchen, News Shopper reports. A spokesman for the Council said, “A routine inspection showed that there was some damage to an asbestos tile in the kitchen area and an air test was taken. “That showed there were fibers in the air and that has prompted a cleaning of the environment. “The cleansing is being done by a qualified contractor subject to HSE recommendations.” The school's head teacher, Denise James-Mason, did not want to comment about the situation. ASBESTOS LITIGATION: Scottish Gov't. to Overturn Asbestos Ruling ---------------------------------------------------------------- The Scottish Parliament has vowed to pass a law to overturn a court ruling that will prevent payouts to sufferers of “pleural plaques,” a scarring of the lungs caused by inhaling asbestos fibers, News & Star reports. However, the Westminster government has angered Labor MPs by refusing to change the law to get round a Law Lords judgment in October 2007. MPs said it would be “absurd” for Cumbrian residents who worked in Scotland to be denied compensation, while a Scot who worked in England received it. Insurance firms argued successfully that they should not be liable because pleural plaques had no symptoms and was, therefore, not a disease. The ruling was described as “outrageous” by Labour MPs, who argue the condition leads to serious respiratory diseases, including mesothelioma and lung cancer. The Scottish National Party-led government in Edinburgh will bring forward a Bill to deliver justice to sufferers, but only to those north of the border. Carlisle MP Eric Martlew is supporting a parliamentary campaign pressurizing the Government to take action. At least 160 people in Cumbria have died from asbestos-related disease since 2000. But the death toll is expected to rise, peaking as high as 2,450 deaths across Britain by 2015, compared with 1,922 in 2003. High-profile asbestos victims have included two former Cumbrian mayors – Alfred Brumwell from Carlisle and former steel worker and Copeland mayor James Johnston. In a Commons debate to counter the anger of MPs, the Government announced plans for a register of all pleural plaques sufferers. To be partly funded by insurance companies, the register would encourage victims to come forward for testing, ministers believe. The ruling applied to sufferers of pleural plaques, leaving insurance firms still liable to pay out on other asbestos- related compensation cases. ASBESTOS LITIGATION: Texas Bldg. Demolished Using Wet Method ---------------------------------------------------------------- The City of Fort Worth, Tex., and the U.S. Environmental Protection Agency demolished an asbestos-laden building on Dec. 17, 2007 using a controversial "wet" demolition method, Star- Telegram reports. The demolition at the Oak Hollow apartments on Fort Worth's east side was the first test of the new method in a populated area. The city notified the media about the demolition after work had begun. A spokesman for a national environmental group called the test "the height of irresponsibility," but a City Council member defended it. City Councilman Danny Scarth, whose district includes the building, said, “The tests have been done a couple of times before. If they didn't feel, from those tests, it was safe to bring into a populated area, they wouldn't be here.” Only one building, the complex's office building, was demolished. The rest of the complex will be taken down using methods already approved by the EPA. Dave Bary, an EPA spokesman, said the EPA and the Department of State Health Services agreed not to enforce regulations so that Monday's test could take place. The Dec. 17, 2007 test is the latest in a long-running national debate over how best to demolish asbestos-contaminated structures. The city wanted to use a similar process to demolish the Cowtown Inn in 2005, but called off that project because of concerns from environmentalists and health officials. The federal government now requires that asbestos be removed from buildings before they are demolished. The alternative method used in the Oak Hollow demolition calls for soaking the walls and ceilings with a special foam and tearing down the building with heavy equipment without removing the asbestos. If proven effective, the alternative method would make it much less costly for municipalities across the country to demolish old asbestos-laden buildings that attract crime and lower property values. Two previous tests have been conducted in relatively isolated areas in Fort Smith, Ark. Demolition work began at about seven in the morning as people nearby walked to school and work on Boca Raton Boulevard. An hour later, an excavator began flattening the building. The EPA had set up rows of air-sampling monitors at the site. The crews planned to remove about three inches of dirt to catch any fibers that soaked into the ground. It would have taken a specially trained crew two days just to remove the asbestos under the old method, said EPA project manager Adele Cardenas Malott. ASBESTOS LITIGATION: More Fears Raised at Silverhill School ---------------------------------------------------------------- A new report states that pupils, teachers and workers involved in one of Derby, England's worst cases of asbestos contamination could have been at more risk than first thought and that the incident should be reviewed again, Evening Telegraph reports. A campaigning widower, who lost his wife to an asbestos disease, and one of Britain's leading health experts have joined forces to highlight their concerns about the Silverhill school contamination. Michael Lees, backed by Robin Howie, fears the risks may have been underestimated. Mr. Lees says that, as a result, parents and others caught up in it may not have been given the right advice. Mr. Lees, whose wife died in 2000 from mesothelioma is working closely with occupational hygienist and asbestos expert Mr. Howie. They are seeking urgent talks with the officials who looked into the original incident, in the hope that a more accurate risk assessment can be arrived at. Routine window replacement at the school led to one of the biggest asbestos contamination incidents in Derby. Workmen replacing windows at the school in Draycott Drive released millions of asbestos fibers into the air. Work went on for three weeks before anyone realized what was happening. Derby City Council commissioned air tests and the Institute of Occupational Medicine was asked to assess the likely future risks to the health of pupils, school staff and the workmen. Mr. Lees concedes that the levels of asbestos exposure of the staff and pupils were low when compared to industrial exposure levels. However, he argues that the air tests that were carried out after the contamination was discovered would not have given a true picture of the level of airborne fibers which would have been present when the work was being carried out. Mr. Lees also has concerns about whether enough has been done to warn people in the incident that it was particularly important for them to avoid any danger of asbestos exposure in the future. Mr. Howie is particularly concerned that the Institute did not recommend that records of the incident should be kept on people's health or personnel records. In September 2007, the Health and Safety Executive supplied its own risk assessment and this contained criticism of some aspects of the Institute's report as well. This also showed that the risks for the window workers and teachers were higher than the institute had estimated. However, John Cherrie, the Institute of Occupational Medicine's research director, refutes Mr. Howie's findings. He said, “Mr. Howie has overestimated the level and duration of exposure. He has relied on written information about the incident and misunderstood the real circumstances.” Meanwhile, city teaching unions are watching the debate carefully and are concerned that their members have been given the correct advice. Dave Wilkinson, Derby branch secretary of the National Association of Schoolmasters Union of Women Teachers, said, “"We would like to see all sides sit down and debate these findings more fully to finally put the matter to rest.” ASBESTOS LITIGATION: Conn. Officials Recall CSI Toys from Stores ---------------------------------------------------------------- Connecticut state officials have pulled the CSI Fingerprint Examination Kit off store shelves statewide because it may contain asbestos, WFSB.com reports. On Dec. 19, 2007, the state Department of Consumer Protection announced that state officials are pulling the CSI Fingerprint Examination Kit off store shelves, which could take as many as two days. The state said department inspectors have gone to stores statewide to remove the product, including Sears, Toys 'R Us, Kay-Bee Toys, Walgreen's, Walmart, Costco and other stores. The Asbestos Disease Awareness Organization compiled test results and sent them to the DCP. The state is sending information it collects to the U.S. Consumer Product Safety Commission, which may choose to issue a national recall, state officials said. State Consumer Protection Commissioner Jerry Farrell, Sr. said, “We know that asbestos can create a lifelong health problem for anyone that gets it into their respiratory system.” According to the U.S. Department of Health and Human Services, officials said the toy has a type of asbestos called tremolite, a durable type of asbestos fiber. Mr. Farrell said the substance is present in the toy's fingerprint powder. He said children who use the powder could blow on the fingerprint slide while playing with the toy. State officials recommend that anyone who has the toy should return in to the store from where the it was purchased. Mr. Farrell said, “We are now investigating how the manufacturer, Planet Toys Inc. from New York, and various retailers responded to the results of the original 18-month scientific study.” ASBESTOS LITIGATION: Grace Reaches Deal with Gov't. Over Cleanup ---------------------------------------------------------------- According to documents filed on Dec. 21, 2007 in the U.S. Bankruptcy Court, W.R. Grace & Co. reached an agreement with federal regulators over environmental cleanup costs at 33 contaminated sites, The Associated Press reports. The proposed deal would cancel bankruptcy claims seeking to recoup the costs of eradicating contamination from 33 sites filed by the U.S. Environmental Protection Agency, U.S. Department of Agriculture, the U.S. Department of the Interior, the National Oceanic and Atmospheric Administration and the U.S. Army Corps of Engineers. The Company has been operating under Chapter 11 protection since 2001 after being swamped with claims for damages from toxic products. On Dec. 19, 2007, Denver-based lawyers for the U.S. Department of Justice environmental enforcement section said several government agencies had agreed to settle claims filed in the Company's bankruptcy case. Terms of the bankruptcy settlement grant the United States a general unsecured claim of US$34 million in the Company's Chapter 11 case, and a top-level priority claim of US$2.3 million, court documents say. Hearings are slated to start in January 2008 on how much the Company owes people with injuries linked to its asbestos products. The outcome of that proceeding will determine whether the Company can make good on its pledge to pay all bills or whether, as asbestos plaintiffs' lawyers contend, the Company's asbestos damages exceed the value of the company. Sites involved in the settlement announced on Dec. 19, 2007 are located in Wisconsin, South Carolina, California, Maryland, Pennsylvania, Kentucky, Utah, Illinois, New York, Texas, Michigan, Colorado, North Dakota, Connecticut, Washington, Minnesota and New Jersey. A portion of the settlement funds will also pay for costs of the probe by the Agency for Toxic Substances and Disease Registry at Grace's Libby, Mont., vermiculite mining operation, according to documents filed in the U.S. Bankruptcy Court in Wilmington, Del. Columbia, Md.-based W.R. Grace & Co. engages in specialty chemicals and specialty materials businesses through two operating segments: “Grace Davison,” which includes silica- and alumina-based catalysts and materials used in a wide range of industrial applications; and “Grace Performance Chemicals,” which includes specialty chemicals and materials used in commercial and residential construction and in rigid food and beverage packaging. The Company conducts its business through W.R. Grace & Co.-Conn., a direct, wholly owned subsidiary. ASBESTOS LITIGATION: Ill. Court Awards $2.6M in Damages to Widow ---------------------------------------------------------------- A jury in McLean County, Ill., has awarded US$2.6 million to Ruth Watkins, the widow of John Watkins who died of asbestos- related disease, WJBC reports. According to the lawsuit, Mr. Watkins was exposed to asbestos when he worked at the Union Asbestos & Rubber Co., later known as Unarco Industries Inc., in Bloomington, Ill., during the summer of 1962 and 1963. He was not warned of the dangers of asbestos, the plaintiffs contend. The jury found that Honeywell International Inc. “had conspired with other companies, including Unarco, Johns-Manville Corp., Raybestos-Manhattan, Owens-Illinois Inc., Owens Corning, and Metropolitan Life Insurance Co. to suppress information about the hazards of asbestos, including an agreement not to warn their employees and customers about the hazards of asbestos,” the Watkins family’s lawyers said after the verdict. Honeywell merged with Bendix, a company that owned the Unarco asbestos plant that used to be on West Perry Street. The 64-year-old Mr. Watkins first experienced mesothelioma in 2004 and he died on Sept. 23, 2005. Lawyer Lisa Corwin says Mr. John Watkins died a painful, long death in which his body slowly deteriorated. Central Illinois Railroad, which hauled in the asbestos, will also pay a portion of the damages for allegedly knowing about hazards and doing nothing to warn workers. ASBESTOS LITIGATION: N.Y. County to Pay $10T Fine for DEC Breach ---------------------------------------------------------------- Legislators in Cayuga County, N.Y., have agreed to pay US$10,000 for state Department of Environmental Conservation violations linked to illegal asbestos removal at the County Board of Elections building in March 2006, The Citizen reports. The DEC and the U.S. Environmental Protection Agency will not take further action in a case that led to the conviction of John Chick, who pleaded guilty to Clean Air Act violations this year. According to County Attorney Fred Westphal, maximum fines varied between US$250,000 for one violation to US$25,000 per day in the months the incident went unreported. The County still faces several class-action suits brought by employees and members of the public who contend they were exposed to asbestos. Federal prosecutors have indicated they will not file criminal charges against the County. ASBESTOS LITIGATION: Asbestos Halts Jail Construction in Texas ---------------------------------------------------------------- The discovery of asbestos has stopped renovation works on the Matagorda County Jail project in Texas until January 2008, The Bay City Tribune reports. The building where the asbestos was discovered was built in 1982. Tests returned positive for asbestos in the glue in floor tiles and some plumbing pipes, and Bass Construction crews shut down demolition of the building, said George Deshotels, Pct. 2 commissioner, during Commissioner’s Court on Dec. 17, 2007. Russell McCown, project manager with Bass Construction, applied on Dec. 13, 2007 for a state permit to remove the asbestos from the building, Mr. Deshotels said. The state needs 10 business days to issue a permit. Construction will not resume before about Jan. 20, 2007, Mr. Deshotels said. Mr. McCown said that a certified asbestos removal contractor will be hired by the county to remove the asbestos at a cost of about US$70,000. In a later interview, Mr. Deshotels said that the asbestos removal is an added expense to the jail project. Originally, commissioners earmarked US$6.3 million for the construction project. Bids for the project came in at US$4.8 million, US$1.5 million less than commissioners planned. Mr. McCown said the asbestos found at the jail site is not airborne. It was found in the glue that holds the floor tiles to the floor and in hard-cased pipefittings. Commissioners discussed alternative strategies, including encasing the asbestos, particularly on the floor, but agreed that complete removal would prevent problems and save taxpayers money in the future. ASBESTOS LITIGATION: Md. Schools May Face Major Hazard Expenses ---------------------------------------------------------------- Maryland schools systems could be faced with major expenses if a new interpretation of the U.S. Environmental Protection Agency stands, Cumberland Times News reports. According to EPA spokeswoman Donna Heron, in 2006, Maryland schools were notified that manufacturers' sheets could not be used to determine whether products contain asbestos. The Asbestos Hazard Emergency Response Act, which was founded in 1986 and clarified in 1999, allows schools to use those data safety sheets to determine whether products contain asbestos, according to Vince Montana, director of facilities for the Allegany County Board of Education. The EPA said it never accepted the data sheets under asbestos regulation. Schools were notified that the sheets could not be used in September 2006 after the Maryland Department of the Environment asked the EPA a "clarifying question," according to Ms. Heron. David Lever, executive director of the state public school construction program, has written a letter requesting some clarification on the issue, said Mr. Montana. Mr. Lever said, “If you assume there is asbestos, the smallest repair you make you either have to abate asbestos, which might not be there, or you might have to set up very involved protection. The new structure, which does not allow for MSDS (manufacturers' data) sheets, has huge consequences on school systems and buildings.” According to Mr. Montana, the interpretation applies to EPA region 3, which includes Maryland, Delaware, Virginia, Pennsylvania, West Virginia, and Washington. ASBESTOS LITIGATION: Federal-Mogul to Exit Bankruptcy on Dec. 27 ---------------------------------------------------------------- Federal-Mogul Corp., on Dec. 18, 2007, said that it expects to emerge from bankruptcy on Dec. 27, 2007, Detroit Free Press reports. The Company has been in bankruptcy more than six years, settling hundreds of thousands of asbestos lawsuits stemming from companies that the Company had acquired. When the Company emerges, it plans to allocate 50.1 percent of the stock in the reorganized company to pay asbestos claims. Financier Carl Icahn is expected to then buy 43 percent of the Company from the asbestos trust, supplying the trust with cash to distribute and making Mr. Icahn the controlling shareholder. The Company filed for Chapter 11 bankruptcy protection Oct. 1, 2001. Southfield, Mich.-based Federal-Mogul Corp. makes components for cars, trucks, and construction vehicles. Its products include chassis and engine parts, pistons, and sealing systems sold under brand names like Federal-Mogul, Glyco, and Signal-Stat. The Company also distributes auto parts to aftermarket customers. ASBESTOS LITIGATION: Court OKs NJI’s Move in Case v. Lumbermens ---------------------------------------------------------------- The Superior Court of Massachusetts, Worcester County, granted Neles-Jamesbury Inc.’s (NJI) motion to compel production of documents, in an asbestos-related insurance action in which Lumberbens Mutual Insurance Co. is a defendant. The case is styled Neles-Jamesbury Inc. v. Liberty Mutual Insurance Co. et al. Justice Peter W. Agnes, Jr. entered judgment of Case No. 020982A on Oct. 15, 2007. This is an insurance coverage action in which NJI alleged that the defendant insurers are obligated to defend and indemnify NJI against underlying claims arising from NJI's alleged manufacture and sale of asbestos-containing products. Initially, NJI sued three insurers. Two of the insurers, Liberty Mutual Insurance Co. and Employers Insurance Company of Wausau settled with NJI. Before that settlement the court had dismissed several policies because those policies appeared to contain an asbestos exclusion or because no insurance policy was issued. Three defendants remained in this case. Those three are Lumbermens, Century Indemnity Co., and St. Paul Fire and Marine Insurance Co. NJI’s discovery motion sought to compel Lumbermens to produce all documents responsive to NJI’s Document Request dated July 17, 2007. NJI claimed that the discovery was necessary to establish the liability of Lumbermens and added that it also is relevant because Lumbermens has publicly expressed concerns raising the potential that it may become insolvent. Lumbermens denied that they are insolvent and asserted that the failure to pay NJI up to this point has been the result of the unreasonableness of the demands of NJI and limitation of coverage under the policy itself. Lumbermens also claimed that they have paid, and continue to pay, a share of NJI’s defense costs. Additionally, Lumbermens claimed that NJI sought reimbursement of costs before the time NJI notified Lumbermens, which costs Lumbermens is not responsible for. ASBESTOS LITIGATION: Texas Court Junks Spencer Action v. Warden ---------------------------------------------------------------- The U.S. District Court, W.D. Texas, El Paso Division, dismissed an action, which involved exposure to asbestos, filed by Fernando Spencer against Warden M. Travis Bragg. The case was styled Fernando Spencer, Petitioner, v. Warden M. Travis Bragg, Respondent. U.S. District Judge Kathleen Cardone entered judgment of Case No. EP-07-CA-160-KC on Nov. 9, 2007. Before the Court is Mr. Spencer’s application for habeas corpus. Therein, Mr. Spencer, a federal prisoner incarcerated at the Federal Correctional Institution--La Tuna, asserted Mr. Bragg violated his constitutional rights when Mr. Bragg: (1) Assigned Mr. Spencer to work in a laundry facility where he was exposed to friable asbestos; (2) Denied Mr. Spencer adequate medical care after his asbestos exposure; (3) Reclassified and transferred Mr. Spencer to a higher security facility without justification; and (4) Confiscated Mr. Spencer's personal property, including legal materials, before he placed Mr. Spencer in a special housing unit. Mr. Spencer sought “relief to which he may be entitled.” Mr. Bragg countered with a “Motion to Dismiss or, in the Alternative, Motion for Summary Judgment.” Mr. Spencer claimed that Mr. Bragg was deliberately indifferent to Mr. Spencer’s medical and dental needs, and interfered with collateral proceedings in Mr. Spencer's criminal case. Accordingly, the Court granted Mr. Bragg’s “Motion to Dismiss or, in the Alternative, Motion for Summary Judgment.” The Court denied Mr. Spencer’s “Application for Writ of Habeas Corpus.” The Court also dismissed Mr. Spencer’s cause without prejudice for lack of subject-matter jurisdiction. Fernando Spencer, Anthony, N.M., pro se. ASBESTOS LITIGATION: Matter in Harper Action Set Aside, Remanded ---------------------------------------------------------------- The U.S. Court of Appeals for Veterans Claims set aside and remanded a matter in which the Board of Veterans’ Appeals denied U.S. Navy and Army veteran Charles Harper service connection for depression, in an action that involves asbestos exposure. The case is styled Charles Harper, Appellant, v. Gordon H. Mansfield, Acting Secretary of Veterans Affairs, Appellee. Judge Davis entered judgment of Case No. 05-2737 on Nov. 21, 2007. Mr. Harper appealed pro se from a June 22, 2005 Board decision denying service connection for diabetes, tinnitus, hearing loss, neuropathy involving both legs and hands, depression, a urinary disorder, a pulmonary disorder as a result of asbestos exposure, and a heart disorder to include hypertension. This appeal was timely. Mr. Mansfield argued that the appeal should be dismissed because Mr. Harper failed to contest the issues decided by the Board. However, the Court noted that Mr. Harper was proceeding pro se. Because Mr. Harper, in his informal brief, loosely asserted that he suffers from a mental illness and seeks a medical examination, the Court construed the arguments as an appeal of the Board's denial of service connection for depression. Since Mr. Harper neither identified other error in the Board's decision now before the Court, nor referred to any other aspect of the Board's decision, the Court considered abandoned all other issues decided by the Board. After consideration of the parties' briefs and a review of the record, the part of the Board's June 22, 2005, decision denying service connection for depression was set aside and remanded. New Securities Fraud Cases HUNTINGTON BANCSHARES: Coughlin Stoia Files Securities Lawsuit -------------------------------------------------------------- Coughlin Stoia Geller Rudman & Robbins LLP and David P. Meyer & Associates Co., LPA announced that a class action has been commenced in the United States District Court for the Southern District of Ohio on behalf of purchasers of Huntington Bancshares Incorporated ("Huntington") common stock during the period between July 20, 2007 and November 16, 2007. The complaint charges Huntington and certain of its officers and directors with violations of the Securities Exchange Act of 1934. Huntington operates as the holding company for The Huntington National Bank ("Huntington National"), which provides retail and commercial financial products and services. The complaint alleges that during the Class Period, defendants issued materially false and misleading statements regarding the Company's business and financial results. Huntington had acquired more than $1.5 billion in exposure to subprime mortgages with its July 2007 acquisition of Sky Financial Group, Inc. ("Sky Financial"). As the real estate and credit markets continued to soften, defendants repeatedly assured Huntington investors that the Company had undertaken significant preparations and implemented defensive measures to weather the deteriorating real estate and credit markets. By the time Huntington closed the merger with Sky Financial, the housing and credit crisis had deepened, yet defendants continued to conceal Huntington's growing exposure to these problems so as to not acknowledge the acquisition was a debacle so soon after it closed. As a result of defendants' false statements, Huntington stock traded at an artificially inflated price of approximately $18 per share during much of the Class Period. Then, on November 16, 2007, Huntington announced its fourth quarter 2007 financial results, stating that as a result of the recently announced actions of Franklin Credit Management Corporation, which had a commercial lending relationship with Sky Financial, and related deterioration in Franklin's mortgage portfolios, 2007 fourth quarter results for Huntington were expected to include an after-tax charge of up to $300 million, or $0.81 per common share. As a result of this charge, Huntington would report a 2007 fourth quarter net loss. On this news, Huntington's stock dropped from $16.08 per share to as low as $14.38 per share, closing at $14.75 per share on November 16, 2007 on volume of over 10 million shares. According to the complaint, the true facts, which were known by defendants but concealed from the investing public during the Class Period, were as follows: (a) the Company had far greater exposure to anticipated losses and defaults in its home loan portfolio, particularly with subprime debt exposure arising from Sky Financial, than it had previously disclosed; and (b) defendants' Class Period statements about the Company's financial results were materially false due to its failure to record timely and adequate accruals for losses on its exposure to delinquent subprime mortgages. Plaintiff seeks to recover damages on behalf of all purchasers of Huntington common stock during the Class Period. For more information, contact: Darren Robbins Coughlin Stoia Geller Rudman & Robbins LLP Phone: 800/449-4900 or 619/231-1058 E-mail: djr@csgrr.com ********* 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. 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