/raid1/www/Hosts/bankrupt/CAR_Public/080808.mbx
C L A S S A C T I O N R E P O R T E R
Friday, August 8, 2008, Vol. 10, No. 157
Headlines
AKZO NOBEL: Faces W.Va. Suit Over Dioxins/Furans Contamination
APPLE INC: Former Network Engineer Files Suit Over Overtime Pay
AVIS RENT-A-CAR: California Suit Challenges Parking Tickets Fees
BABY APPLESEED: Recalls Davenport Cribs Due to Fall Hazard
BROOKLINE BANK: Mass. Collateral Sale Notices Lawsuit Continues
CONTINENTAL TIRE: Oct. 21 Hearing Set for N.J. Suit Settlement
COUNTRYWIDE HOME: Calif. Securities Suit Removed to State Court
DENTSPLY INTERNATIONAL: Faces Antitrust Lawsuit in Penna. Court
DEPARTMENT OF ENERGY: Sued Over Uranium Mining and Development
EXXONMOBIL CORP: Royalties Suit in Oklahoma Gets Certified
FARO TECHNOLOGIES: Faces Derivative Complaint in Florida Court
GEORGIA NATURAL: Still Faces Ga. Customers' Overcharging Suits
HEWLETT-PACKARD: Court OKs $640MM Deal in Laptop Glitch Lawsuit
LIFELOCK: Identity-Theft Protection Not In Contract, Suit Says
MOTHER HUBBARD'S: Recalls 1,300 Cribs Due to Fall Hazard
NORTHSTAR NEUROSCIENCE: Board Faces Suit Over Acquisition Offers
OMNICARE INC: Court Sets Sept. 18 Hearing for Appeal in Ky. Suit
RIVERSIDE CEMENT: Contaminated Air, Soil and Water, Lawsuit Says
SEI INVESTMENTS: Awaits Ruling on Dismissal Bid in "Carey" Suit
SCIELE PHARMA: Awaits Approval of $4.7MM Securities Suit Deal
STATE LINE NISSAN: Illegal Fees Lawsuit Goes to Arbitrator
SUNRISE SENIOR: Faces Securities Law Violations Lawsuit in D.C.
TOWN SPORTS: Still Faces N.Y. Lawsuits Alleging Labor Violations
TYCO INTERNATIONAL: Settles New Jersey Suit for $73.25 Million
TYCO INTERNATIONAL: Settles "Ballard" Securities Suit for $36MM
WASHINGTON MUTUAL: Faces Mass. Suit Over Mishandled Foreclosures
WORLD AIRWAYS: Suits Over Ritetime Contractual Flights Settled
XEROX CORP: Oct. 7 Hearing Set in "Carlson" Securities Suit Deal
XEROX CORP: Continues to Face Securities Fraud Lawsuit in Conn.
XEROX CORP: Discovery Still Ongoing in Connecticut ERISA Lawsuit
XEROX CORP: Supreme Court Affirms Decision in "Digwamaje" Matter
XEROX CORP: Court Still to Approve Civil Rights Suit Settlement
New Securities Fraud Cases
CARMAX INC: Coughlin Stoia Files Securities Fraud Suit in Va.
GT SOLAR: Shapiro Haber Files Securities Fraud Lawsuit in N.H.
ZIMMER HOLDINGS: Federman Sherwood Files Indiana Securities Suit
Asbestos Alerts
ASBESTOS LITIGATION: Appeals Court Reverses Ainsworth Suit Order
ASBESTOS LITIGATION: 114T Claims Ongoing v. PPG Ind. at June 30
ASBESTOS LITIGATION: Goodrich, Units Still Face Exposure Actions
ASBESTOS LITIGATION: Hartford Liability Totals $1.97B at June 30
ASBESTOS LITIGATION: Union Carbide Has 88,694 Unresolved Claims
ASBESTOS LITIGATION: Union Carbide Has $123M Current Liability
ASBESTOS LITIGATION: UCC Records $91M Defense, Resolution Costs
ASBESTOS LITIGATION: UCC Reports $465M Receivable at June 30
ASBESTOS LITIGATION: Appeal Over A.P. Green Ruling Still Pending
ASBESTOS LITIGATION: CNA Fin'l. Engaged in Keasbey Coverage Case
ASBESTOS LITIGATION: CNA Engages in Burns & Roe Lawsuit in N.J.
ASBESTOS LITIGATION: Texas Court Actions Ongoing v. CNA Fin'l.
ASBESTOS LITIGATION: W. R. Grace Case v. CNA Fin'l. Still Stayed
ASBESTOS LITIGATION: CNA Reserves $1.229B for Claims at June 30
ASBESTOS LITIGATION: Appeals Court Rules v. Purdy in DOE Action
ASBESTOS LITIGATION: Safeco Records $13.6M Increase for Asbestos
ASBESTOS LITIGATION: 11,202 Cases Pending v. RPM Units at May 31
ASBESTOS LITIGATION: Navigators Has $18.63M Reserves at June 30
ASBESTOS LITIGATION: Eastman Chemical Still Has Exposure Claims
ASBESTOS LITIGATION: Rogers Reports $19.3M Liability at June 29
ASBESTOS LITIGATION: Sealed Air Has $689.5M Liability at June 30
ASBESTOS LITIGATION: Lincoln Faces Claims with 27,934 Plaintiffs
ASBESTOS LITIGATION: Goodyear Faces 118,500 Claims at June 30
ASBESTOS LITIGATION: TRW Auto Units Subject to Exposure Actions
ASBESTOS LITIGATION: Cytec Ind. Faces 8,200 Claims at June 30
ASBESTOS LITIGATION: Injury Lawsuits Still Ongoing v. Flowserve
ASBESTOS LITIGATION: TODCO Lawsuit Ongoing v. Hercules Offshore
ASBESTOS LITIGATION: Corning Inc. Facing 10,350 Injury Lawsuits
ASBESTOS LITIGATION: CBS, Others Facing Lawsuits Over CSI Toys
ASBESTOS LITIGATION: Cape Worker's Death Linked to Exposure
ASBESTOS LITIGATION: CSX Sued by Keller Last June in W.Va. Court
ASBESTOS LITIGATION: UCC Worker Pursuing 85 Firms in W.Va. Court
ASBESTOS LITIGATION: Inquest Rules on Huddersfield Plumber Death
ASBESTOS LITIGATION: Nichias Ordered to Hold Talks with Union
ASBESTOS LITIGATION: Respiratory Diseases Linked to Exposure
ASBESTOS LITIGATION: CIRCOR Int'l Has $9.7M Liability at June 30
ASBESTOS LITIGATION: Leslie Facing 846 Active Claims at June 29
ASBESTOS LITIGATION: Leslie Cites $14.9M Liability at June 30
ASBESTOS LITIGATION: 78 Claims Resolved by Leslie Controls in 2Q
ASBESTOS LITIGATION: Spence Engineering, Hoke Face Injury Claims
ASBESTOS LITIGATION: Owens-Illinois Has $210M Current Liability
ASBESTOS LITIGATION: Quaker Chemical in Early Stages of Suits
ASBESTOS LITIGATION: MAAC Commends Study on Alimta, Paraplatin
ASBESTOS LITIGATION: Asbestos Cleanup in Kanawha Schools Ongoing
ASBESTOS LITIGATION: EPA & Pencader Settle Over AHERA Violations
ASBESTOS LITIGATION: EPA & Renaissance School Reach Settlement
ASBESTOS LITIGATION: OSHA to Issue $128,700 Penalty v. Cast-Fab
ASBESTOS LITIGATION: Conn. School Signs Order on Removal Plan
ASBESTOS LITIGATION: UK Inquest Rules on Michelin Worker's Death
ASBESTOS LITIGATION: ASARCO LLC Plan Filed in Texas on July 31
ASBESTOS LITIGATION: Further Relief Granted to Armstrong World
ASBESTOS LITIGATION: CBS Corp. Faces 73,940 Claims as of June 30
ASBESTOS LITIGATION: Graham Corporation Still Has Exposure Suits
ASBESTOS LITIGATION: 10 Actions Still Ongoing v. Katy Industries
ASBESTOS LITIGATION: Katy Ind. Cites 2,500 Sterling Fluid Claims
ASBESTOS LITIGATION: Labour Pump Facing 100 Cases in N.J. Court
ASBESTOS ALERT: Maskell & LCH to Pay GBP220T for Cleanup Breach
*********
AKZO NOBEL: Faces W.Va. Suit Over Dioxins/Furans Contamination
--------------------------------------------------------------
Akzo Nobel N.V. and Flexsys are facing a purported class-action
lawsuit filed by 15 plaintiffs before the Putnam County, West
Virginia state court in connection with dioxins/furans
contamination, according to Solutia, Inc.'s July 30, 2008 Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended June 30, 2008.
Flexsys, is a 100% owned subsidiary of Solutia, upon Solutia's
acquisition of the 50% interest previously owned by Akzo Nobel.
In December 2004, a purported class-action lawsuit entitled,
"Virdie Allen, et al. v. Monsanto, et al.," was filed against
Flexsys, Pharmacia Corp., Monsanto co., and Akzo Nobel (Solutia
Inc. is not a named defendant), alleging exposure to dioxin from
Flexsys' Nitro, West Virginia facility, which is now closed.
The relevant production activities at the facility occurred
during Pharmacia's ownership and operation of the facility and
well prior to the creation of the Flexsys joint venture between
Pharmacia (then known as Monsanto, whose interest was
subsequently transferred to the company in the Solutia Spinoff)
and Akzo Nobel.
The alleged class members consists of all current and former
residents, workers, and students who, between 1949 and the
present, were allegedly exposed to dioxins/furans contamination
in counties surrounding Nitro, West Virginia.
The plaintiffs are seeking damages for loss of property value,
medical monitoring and other equitable relief.
For more details, contact:
W. Stuart Calwell, Esq.
Alex McLaughlin, Esq.
The Calwell Practice
P.O. Box 113, Charleston, WV 25301
Phone: 304-343-4323
304-291-5223
Fax: 304-344-3864
304-291-2240
- and -
James F. Humphreys, Esq.
J. David Cecil, Esq.
Thomas G. Wilson, Esq.
James F. Humphreys & Associates
United Center, Suite 800, 500 Virginia Street
East Charleston, WV 25301
Phone: 304-347-5050
Fax: 304-347-5055
APPLE INC: Former Network Engineer Files Suit Over Overtime Pay
---------------------------------------------------------------
David Walsh, a network engineer at Apple Inc., for over a
decade, filed a lawsuit claiming that the company has been
routinely requiring overtime hours but not paying for them,
Chris Foresman writes for Ars Technica.
The report notes that Mr. Walsh's lawsuit, which is seeking
class-action status, claims that Apple has created a variety of
job titles for years designed to classify information technology
workers as exempt from federal overtime pay and other rights
assigned by federal and California law.
The lawsuit contends that IT workers at the company are often
required to work more than eight hours a day and more than 40 in
a week. Many of the network engineers are also required to be
on call 24 hours a day for as long as one week, and any work
done while on call is not compensated. Moreover, the suit says,
many of them are allegedly denied breaks for meals or rest
periods as required by law.
Ars Technica relates that federal law provides exemption for
employees in management or supervisory roles, but Mr. Walsh
asserts that despite job titles that may indicate otherwise, all
work is directed by management and requires approval before
being done. The lawsuit therefore alleges violations of Federal
Labor and Standards Act as well as California Labor Code and
Industrial Workers Wage Order Requirements.
AVIS RENT-A-CAR: California Suit Challenges Parking Tickets Fees
----------------------------------------------------------------
Avis Rent-A-Car System is facing a class-action complaint before
the Los Angeles Superior Court over allegations that it strips
customers of their due-process right to challenge parking
tickets by automatically charging them for the tickets, plus an
administrative fee, the CourtHouse News Service reports.
Avis Rent-A-Car System, LLC, is a car rental company
headquartered in Parsippany, New Jersey. Avis, Budget Rent a
Car and Budget Truck Rental are all units of Avis Budget Group.
Avis Budget Group operates the Avis brand in North America,
Latin America, the Caribbean, India, Australia and New Zealand.
In other parts of the world, the Avis brand is operated by Avis
Europe plc, a separate company which licenses the Avis brand
from Avis Budget Group. All together, Avis currently has over
4000 branch offices worldwide. Avis is one of the largest car
rental agencies in the world.
The company primarily rents General Motors vehicles, such as
Chevrolet, Pontiac, and Saturn, within the United States, though
some locations feature other popular non-GM brands, such as
Hyundai or Kia.
Avis is a leading rental car provider to the commercial segment
serving business travelers at major airports around the world,
and to leisure travelers at off-airport locations; many of the
off-airport locations (at least in the USA) are franchised
operations rather than company owned and operated, as is the
case with most airport locations.
BABY APPLESEED: Recalls Davenport Cribs Due to Fall Hazard
----------------------------------------------------------
Baby Appleseed, of City of Industry, Calif., in cooperation with
the U.S. Consumer Product Safety Commission, is recalling about
500 Davenport Cribs.
The company said the cribs fail to meet the federal safety
standards for cribs. The cribs have a two mattress support
system. The secondary mattress support, used for the lowest
position, does not meet the full 26 inch minimum height in its
lowest position, allowing children inside to crawl over the
railing, posing a fall hazard. No injuries have been reported.
The recall includes Davenport crib models that begin with the
model numbers 273-xxxx-xxxx and have manufacture dates on or
before August 2007 printed on a label located on the right side
of the lower inner panel of the crib. The recalled cribs have
two mattress support systems-a metal one and a wooden one.
Newer Davenport cribs with model numbers beginning with 244-
xxxx-xxxx that have one mattress support are not included in the
recall.
These recalled Davenport cribs were manufactured in Vietnam and
were being sold at specialty juvenile product stores nationwide
from December 2006 through September 2007 for between $600 and
$800.
A picture of the recalled crib is found at:
http://www.cpsc.gov/cpscpub/prerel/prhtml08/08351.jpg
Consumers are advised to stop using the recalled cribs in the
third lowest position, which uses the wooden mattress support,
and contact Baby Appleseed to receive a repair kit. Consumers
who are currently using the crib with the metal mattress support
in the top or middle positions can continue to use the crib in
those positions while awaiting a repair kit. (NOTE: Repair Kits
will be available from the firm in mid-August 2008)
For additional information, contact Baby Appleseed at
877-348-2199 any time, or visit the firm's Web site at
http://www.babyappleseed.com/
BROOKLINE BANK: Mass. Collateral Sale Notices Lawsuit Continues
---------------------------------------------------------------
Brookline Bank, a wholly owned subsidiary of Brookline Bancorp,
Inc., continues to face a purported class-action lawsuit over
missing information in its notice of sale of collateral for
delinquent loans, according to the company's July 21, 2008 Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended June 30, 2008.
On Feb. 28, 2007, the company received a complaint against it
filed in the Superior Court for the Commonwealth of
Massachusetts by Carrie E. Mosca, Esq. (Class Action Reporter,
May 9, 2008).
Ms. Mosca defaulted on a loan obligation on an automobile that
she co-owned. She alleges that the form of notice of sale of
collateral that the bank sent to her after she and the co-owner
became delinquent on the loan obligation did not contain
information required to be provided to a consumer under the
Massachusetts Uniform Commercial Code.
The action purports to be brought on behalf of a class of
individuals to whom the bank sent the same form of notice in
connection with transactions documented as consumer transactions
during the four-year period prior to the filing of the action.
The suit seeks statutory damages, an order restraining the bank
from future use of the form of notice sent to Ms. Mosca, an
order barring the bank from recovering any deficiency from other
individuals to whom it sent the same form of notice and
attorneys' fees and costs.
The bank denied liability and has opposed the plaintiff's motion
to certify a class. The Court denied the plaintiff's motion for
class certification in an order dated July 18, 2008.
On July 31, 2008, the plaintiff served a motion for summary
judgment seeking an award of damages in the amount of $3 to her
individually. The Bank has not yet served its response to the
motion.
Brookline Bancorp, Inc. -- https://www.brooklinebank.com/ -- is
a state-chartered savings and loan holding company and the
parent of Brookline Bank.
CONTINENTAL TIRE: Oct. 21 Hearing Set for N.J. Suit Settlement
--------------------------------------------------------------
The U.S. District Court for the District of New Jersey will hold
a fairness hearing on Oct. 21, 2008, at 12:00 noon, to consider
final approval of the proposed settlement in the matter "William
W. McGee v. Continental Tire North America, Case No. 2:06-CV-
06234."
The hearing will be held before Judge Garrett E. Brown, Jr., at
Courtroom 4E, Clarkson S. Fisher Building and U.S. Courthouse,
402 East State Street, in Trenton, New Jersey.
Any objections and exclusions to and from the settlement must be
made on or before Sept. 15, 2008. The deadline for the
submission of claim forms is on Sept. 15, 2010.
Case Background
The lawsuit alleged that Continental breached certain warranties
and violated a consumer protection statute relating to the
performance of certain of its tires that were installed on some
Chrysler, Dodge and other manufacturer's automobiles between
2003 and 2008.
Named plaintiff William Mr. McGee alleged that Continental
failed to disclose at the time they marketed, warranted, sold or
delivered the ContiSeal tires to consumers that the tires would
incur abnormal and premature tread wear, sometimes requiring
replacement within the first 20,000 miles of use.
The parties subsequently reached a settlement for the matter,
which was preliminarily approved by the court as fair,
reasonable, and adequate on June 12, 2008.
The Settlement Terms
Pursuant to the settlement agreement, the company will pay not
less than $5 million and not more than $8 million to resolve all
timely and valid claims submitted.
The settlement encompasses all persons or entities that
purchased or received Eligible Tires as part of an automobile
purchase or lease transaction and purchased or received Eligible
Tires to replace other tires, including, but not limited to,
Eligible Tires, between Jan. 1, 2003, and July 14, 2008.
The "Eligible Tires" include the following Continental tires,
purchased or otherwise obtained as new tires by plaintiffs,
between Jan. 1, 2003, and July 14, 2008:
-- P215/65R17 98T ContiTouringContact with Conti*Seal
-- P225/60R18 99H ContiTouringContact with Conti*Seal
-- P225/60R18 99H ContiTouringContact without Conti*Seal
Tires purchased as used tires or that were otherwise not new
tires are NOT Eligible Tires.
For illustrative purposes and not by way of limitation, Eligible
Tires also were installed as original equipment on the following
Chrysler (formerly DaimlerChrysler) and Dodge vehicle models
from model year 2003 up to and including model year 2008:
-- Chrysler 300
-- Chrysler 300 Touring
-- Chrysler 300 Limited
-- Chrysler 300C
-- Dodge Magnum SXT
-- Dodge Magnum R/T
-- Dodge Charger SE
-- Dodge Charger SXT
-- Dodge Magnum SE
-- Dodge Charger R/T
For more details, contact:
Continental Tire Settlement Claims
c/o The Garden City Group, Inc.
P.O. Box 9287
Dublin, OH 43017-4687
Phone: 1-800-430-8741
Web site: http://www.tiresettlement.com/
Cary L. Flitter, Esq. (cflitter@lfbb.com)
Lundy, Flitter, Beldecos & Berger, PC
Five Greentree Centre, Suite 302
Marlton, NJ 08053
Phone: 856-338-1300
- or -
Michael D. Donovan, Esq. (mdonovan@donovansearles.com)
Donovan Searles, LLC
1845 Walnut Street, Suite 1100
Philadelphia, PA 19103
Phone: 215-732-6067
Fax: 215-732-8060
COUNTRYWIDE HOME: Calif. Securities Suit Removed to State Court
---------------------------------------------------------------
The 9th U.S. Circuit Court of Appeals remanded to state court
the class action lawsuit "Luther v. Countrywide Home Loans
Servicing L.P., No. 08- 55865," Standford Securities Class
Action ClearingHouse reports.
David Luther originally filed the class action complaint against
Countrywide Home in California state court, alleging that the
company issued false and misleading registration statements and
prospectus supplements in violation of the Securities Act of
1933.
Countrywide removed the case to federal court pursuant to the
Class Action Fairness Act of 2005, which allows such removal of
class actions with claims exceeding $5 million and when at least
one plaintiff is diverse from at least one defendant.
In federal court, Mr. Luther moved to remand the case to state
court, arguing that 22(a) of the Securities Act of 1933 barred
the removal of his suit.
The court granted Mr. Luther's motion, and Countrywide appealed,
arguing the passage of CAFA ended 22(a)'s long-standing bar
against removal. The 9th Circuit affirmed the earlier ruling.
According to Standford Securities, although the CAFA allowed the
removal to federal court of large class actions with diverse
parties, it did not supersede the specific bar against removal
of state actions involving only state claims in 22(a) of the
Securities Act of 1933.
The court said Section 22(a)'s bar against removal superseded
CAFA's removal provisions. Citing the U.S. Supreme Court's
holding in "Radzanower v. Touche Ross & Co.," the court said,
"It is a basic principle of statutory construction that a
statute dealing with a narrow, precise, and specific subject is
not submerged by a later enacted statute covering a more
generalized spectrum."
Here, the Securities Act of 1933 is the more specific statute;
it applies to the narrow subject of securities cases and Section
22(a) more precisely applies only to claims arising under the
Securities Act of 1933, the report notes. CAFA, on the other
hand, applies to a 'generalized spectrum' of class actions.'
Countrywide Home Loans is a unit of leading residential lender
Countrywide Financial's mortgage banking segment. It originates
and invests in correspondent, consumer, and wholesale mortgage
loans. Additionally, Countrywide offers a variety of loan
servicing and loan closing services such as appraisals and flood
determination. Countrywide Home Loans was historically the
flagship mortgage origination subsidiary of its parent, but
Countrywide Financial over the years transferred its loan
production responsibilities to Countrywide Bank. Like other
mortgage lenders across the nation, Countrywide Financial has
been hurt by the credit crisis; it was acquired by Bank of
America in 2008.
DENTSPLY INTERNATIONAL: Faces Antitrust Lawsuit in Penna. Court
---------------------------------------------------------------
Dentsply International is facing an antitrust class-action
complaint before the U.S. District Court for the Middle District
of Pennsylvania accusing it of monopolizing the market on fake
teeth by forcing dealers to buy exclusively from Dentsply,
thereby driving up the price of artificial teeth, CourtHouse
News Service reports.
The plaintiff brings the suit as a class action pursuant to the
Federal Rules of Civil Procedure 23(a) and (23)(b), and in
accordance with M.D. Pa. Local Rules 23.2. on behalf of all
persons and entities who purchased prefabricated artificial
teeth in the United States directly from Dentsply at any time
during the period Jan. 5. 1995, through the present.
The plaintiff wants the court to rule on:
(a) whether the defendant obtained and maintained monopoly
power in the market for prefabricated artificial teeth
in the United States;
(b) whether the defendant obtained and maintained monopoly
power in the relevant market through anti-competitive
and unlawful activity;
(c) whether the defendant engaged in conduct which had the
purpose and effect of unreasonably restraining
competition and limiting purchaser access to competing
prefabricated artificial teeth;
(d) whether the defendant's unreasonably anti-competitive
conduct has caused plaintiff and the other members of
the class to suffer antitrust injury in the form of
overcharges;
(e) whether Dentsply's unlawful conduct caused plaintiff
and other class members to pay more for prefabricated
artificial teeth than they otherwise would have paid;
and
(f) the appropriate class-wide measure of damages.
The plaintiff requests that:
-- the court determine that this action may be maintained
as a class action pursuant to Rule 23 of the Federal
Rules of Civil Procedure and direct that reasonable
notice of this action, as provided by Rule 23, be given
to the class;
-- the acts alleged be adjudged and decreed to be unlawful
acts in violation of Section 2 of the Sherman Act;
-- each member of the class recover three-fold the damages
determined to have been sustained by each of them, and
that judgment be entered against defendant in favor of
the class; and
-- the class recover its costs of suit, including
reasonable attorneys' fees and costs as provided by law.
The suit is "Nowak Dental Supplies, Inc. et al. v. Dentsply
International, Inc.," filed in the U.S. District Court for the
Middle District of Pennsylvania.
Representing the plaintiff is:
Steven E. Grubb, Esq.
Goldberg Katzman, PC
320 Market Street, Strawberry Square
P.O. Box 1268
Harrisburg, PA 17108
Phone: 717-234-4161
Fax: 717-234-6808
DEPARTMENT OF ENERGY: Sued Over Uranium Mining and Development
--------------------------------------------------------------
A lawsuit was filed against the Department of Energy in
connection with uranium mining and development in western San
Miguel and Montrose Counties, Norwood Post reports. The lawsuit
came after the DOE awarded 16 uranium mining leases to four
companies this summer.
According to Norwood Post, the complaint was brought by four
environmental groups:
1. Colorado Enironmental Coalition,
2. Information Network for Responsible Mining,
3. Center for Native Ecosystems, and
4. Center for Biological Diversity.
The plaintiffs allege that the DOE did not follow federal law in
determining the environmental impacts associated with the
leasing.
"The DOE went forward based on the 2007 assessment and finding
of no impact," Travis Stills, Esq., the attorney handling the
suit, told Norwood Post. "The crux of the complaint is based on
the fact that the DOE needed to do an environmental impact
statement. Federal law requires that they take a comprehensive
look at the whole program."
The report explains that by "whole program," Mr. Stills meant
the uranium mill proposed on adjacent private land to process
the uranium after it is mined. That mill, the Pinon Ridge Mill,
has already filed for a permit in Montrose County. It would be
one of just two mills operating in the U.S. -- the other mill is
owned by Denison Mines and is in Blanding, Utah, the report
says. Pinon Ridge is owned by Energy Fuels, which won four of
the DOE leases on 6,600 acres.
"It's laughable to say that (the mining leases and the proposed
mill) are unrelated," Mr. Stills said. "Everybody knows that
these are one proposal, and the mill couldn't be more centrally
located in this proposal."
The report relates that Mr. Stills and the suit also point to
the wave of interest generated in uranium development associated
with the DOE activity and the proposed mill -- some 10,000
uranium mining claims were filed on public lands in 2007.
Joanna Waldrin, of the DOE, told Norwood Post that her agency is
not yet prepared to comment on the complaint. "The only thing
that I can say is that we've received the complaint and are
reviewing it carefully," she said.
The report recounts that in 1970, the National Environmental
Policy Act was passed to help public agencies make policies
based on an "understanding of environmental consequences." NEPA
is also meant to insure that the public is made aware of the
consideration given to the environmental consequences.
According to the lawsuit, the DOE failed to follow NEPA
procedure -- the agency filed an EA, or an environmental
assessment, that found there was no impact, rather than taking a
more inclusive look at the project in an EIS, or environmental
impact statement.
The four plaintiffs did make comments on the project during the
public comment period of the EA, the report further recalls.
Mr. Stills said that when the same area was used for mining and
milling in the 1940s and 50s, when the Town of Uravan was
created to help the country develop uranium for munitions, there
was no NEPA and no means of publicly regulating the ill effects
of the industry. Many of the workers and miners were poisoned
by the radiation, winning two huge class action lawsuits against
Union Carbide, and a half-century later, the reclamation of the
old mill site is still not complete.
"The DOE has taken the position they don’t have to look at the
past problems. But if you don't look at the history, how can
you avoid this happening again," said Mr. Stills. "We're facing
another boom-bust cycle with no real idea of what the
consequences might be."
The District Court will have 60 days from the July 31 filing of
the complaint to evaluate the suit, the report notes.
EXXONMOBIL CORP: Royalties Suit in Oklahoma Gets Certified
----------------------------------------------------------
Custer County (Okla.) Associate District Judge Gale F. Smith
certified a class-action lawsuit against Exxon Mobil Corp.
alleging that the company improperly took almost 15% out of
mineral-interest royalties to pay costs, Marie Price writes for
The Journal Record.
The legal action has been ongoing for several years, in both
federal and state court. It makes numerous claims, including:
-- breach of fiduciary duty,
-- conversion,
-- fraud,
-- breach of contract, good faith and fair dealing,
-- unjust enrichment, and
-- deceit.
According to Judge Smith, testimony showed that Mobil applied a
formula that reduced royalty payments by 14.83%, although it was
represented to royalty owners that their interests would be
"free and clear of any operating or investment costs."
The judge said the plain language of the unit plan for the area
provided for one-eighth royalty interests free of unit expenses
and liens.
"The evidence and testimony shows that Mobil and tract operators
failed to disclose the Fiske formula 14.83 percent reduction in
communications with the class, except for one isolated
disclosure," Judge Smith wrote.
The report relates that the judge said the operating committee
for the Putnam Oswego unit agreed in 1968 to calculate royalties
according to the formula. The area involved is the Putnam Oswego
field in Dewey County.
According to the judge's ruling, each class member is only
making a claim regarding his or her one-eighth royalty. Mobil
presented evidence that members of the putative class live in 40
states, but the judge said that no single state can be said to
have interests approaching the level of significant contacts
that Oklahoma has with the parties and the litigation.
Judge Smith said the plaintiffs met their burden in establishing
that ExxonMobil may have committed the alleged actions.
Oklahoma City attorney Robert Tomlinson, Esq., said the
potential class could include 1,200 or so members, the report
says.
The Journal Record states that a local attorney for ExxonMobil
was not immediately available for comment.
Exxon Mobil Corp.'s principal business is energy, involving
exploration for, and production of, crude oil and natural gas,
manufacture of petroleum products and transportation and sale of
crude oil, natural gas and petroleum products. The Company is
based in Irving, Texas.
FARO TECHNOLOGIES: Faces Derivative Complaint in Florida Court
--------------------------------------------------------------
On January 10, 2008, a verified shareholder derivative complaint
was filed against FARO Technologies, Inc., by a shareholder of
the company in the U.S. District Court for the Middle District
of Florida against the company (as nominal defendant) and six of
its current and former directors (as defendants), the company
said in it's Aug. 6, 2008 Form 10-Q filing with the U.S.
Securities and Exchange Commission.
The Derivative Complaint alleges breach of fiduciary duty and
other claims against the individual defendants principally in
connection with the alleged acts and omissions asserted in the
Securities Litigation.
The plaintiff alleges that the individual defendants caused the
company's stock price to be falsely inflated, and subjected the
company to costs, fines and other damages, as well as a loss of
goodwill. The plaintiff purports to seek an unspecified amount
of damages, together with other relief, on behalf of the company
and against the individual defendants.
Prior to filing the Derivative Complaint, the plaintiff had
requested that the company assert certain of such claims against
some of the individual defendants.
In April 2008, the company received another demand by another
alleged shareholder that it assert substantially the same claims
as set forth in the Derivative Complaint against seven of its
current and former directors.
A similar demand received by the company in February 2008 was
subsequently withdrawn.
The company has formed a committee of independent directors to
review and investigate the shareholder demands, and the
allegations made in the Derivative Complaint and the other
shareholder demand. The committee has not yet made a
recommendation with respect to those matters.
On July 7, 2008, the company was served with the Derivative
Complaint. No defendant to the Derivative Complaint has
appeared, to date, in the derivative action litigation.
The suit is "Alverson v. Caldwell et al., Case Number:
6:2008cv00045," in the U.S. District Court for the Middle
District of Florida, under presiding Judges Anne C. Conway and
Gregory A. Presnell, with referral to Magistrate Judge David A.
Baker and Magistrate Judge Gregory J. Kelly.
GEORGIA NATURAL: Still Faces Ga. Customers' Overcharging Suits
--------------------------------------------------------------
Georgia Natural Gas, which is owned by AGL Resources, Inc.,
still faces two purported class-action lawsuits basically
alleging that the company overcharged customers, according to
the company's July 31, 2008 Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended
June 30, 2008.
In February 2008, a class-action complaint was filed before the
Superior Court of Fulton County in the State of Georgia against
GNG seeking damages on behalf of a class of GNG customers.
In March 2008, a second class action suit was filed against GNG
in the State Court of Fulton County in the State of Georgia,
regarding monthly service charges. This lawsuit alleges that
GNG arbitrarily assigned customer service charges rather than
basing each customer service charge on a specific credit score.
GNG asserts that no violation of law or Georgia Commission rules
has occurred and that both lawsuits are without merit.
The company reported no significant development in the matters
in its regulatory filing.
AGL Resources, Inc. -- http://www.aglresources.com/-- is an
energy services holding company whose principal business is the
distribution of natural gas in six states: Florida, Georgia,
Maryland, New Jersey, Tennessee and Virginia. It is involved in
various related businesses, including retail natural gas
marketing to end-use customers in Georgia; natural gas asset
management and related logistics activities for its own
utilities, as well as for non-affiliated companies; natural gas
storage arbitrage and related activities, and the development
and operation of high-deliverability underground natural gas
storage assets. It owns and operates a small telecommunications
business that constructs and operates conduit and fiber
infrastructure within select metropolitan areas. It manages its
businesses through four segments: distribution operations,
retail energy operations, wholesale services and energy
investments, and a non-operating corporate segment.
HEWLETT-PACKARD: Court OKs $640MM Deal in Laptop Glitch Lawsuit
---------------------------------------------------------------
Judge Tom Lucas of the Cleveland County, Oklahoma District Court
approved on a final basis a nominal $640-million settlement of
laptop glitch claims against Compaq Computer Corporation and its
parent, Hewlett-Packard Co., Walter Olson writes for
Overlawyered.com.
The report also notes that the Court also approved $40 million
in attorneys' fees to various attorneys, including Reaud, Morgan
& Quinn.
Case Background
The lawsuit is a consolidation of two cases pending in Oklahoma
District Court, "Stephen Grider and Beverly Grider v. Compaq
Computer Corporation, No. CJ-03-969L" and "Debbie Barrett v.
Hewlett-Packard Company, No. CJ-03-967L."
The consolidated class action lawsuit claimed that the
defendants, Compaq and Hewlett-Packard sold computers with a
defective part that could cause the loss or corruption of data
written to or read from a floppy disk. The plaintiffs claimed
that the presence of the allegedly defective part in the
computers entitles class members to remedies under a warranty.
Compaq and HP deny all of these claims.
The parties subsequently agreed to a settlement deal in order to
avoid the expense and risks of continuing the lawsuit.
The Settlement
The recently approved deal will also result in the dismissal of
other, related class action lawsuits that are pending in
California and Texas, as follows:
-- Penny Schultz v. Hewlett-Packard Company, No. CV-025620
(California Superior Court, San Joaquin County);
-- Alesia Batiste v. Hewlett-Packard Company, No. CV-025102
(California Superior Court, San Joaquin County);
-- Hal LaPray et al. v. Compaq Computer Corporation, Cause
No. A-162, 152 (District Court of Jefferson County,
Texas, 60th Judicial District); and
-- Muzette Alvis et al. v. Hewlett-Packard Company, Cause
No. A-164, 880 (District Court of Jefferson County,
Texas, 58th Judicial District).
The settlement site -- http://www.barrettgrider-v-hpcompaq.com/index.html
-- points out that those who purchased a Compaq or HP computer
on or after October 31, 1995, in Texas or California should pay
particular attention to the fact that the Texas and California
actions identified will be dismissed pursuant to the approved
settlement.
Furthermore, those who purchased certain Compaq or HP computer
models on or after October 31, 1995, may be eligible for
benefits under the approved settlement. A complete listing of
the covered models is available at http://www.barrettgrider-v-
hpcompaq.com/coveredmodels.html
As reported in the Class Action Reporter on January 21, 2008,
under the settlement, eligible class members will each have the
right to obtain:
-- a redemption certificate for use in purchasing a PC
through HP's Web site. The amount of the redemption
certificate depends on how much the customer paid for
a Compaq or HP computer affected by the lawsuit;
-- a 256MB USB flash drive as long as the class member
meets these requirements:
(a) still owns the computer that is affected by the
lawsuit;
(b) has already taken advantage of the software patch
from Compaq (SoftPaq 13456) and HP intended to
address the alleged defect at issue in the
lawsuit; and
(c) certifies under penalty of perjury that he is
dissatisfied with that patch; and
-- a software patch designed to address the alleged
defect at issue in the lawsuits.
Hewlett-Packard Co. -- http://www.hp.com-- is a provider of
products, technologies, solutions and services to individual
consumers, small and medium-sized businesses (SMBs) and large
enterprises. Its offerings span personal computing and other
access devices, imaging and printing-related products and
services, enterprise information technology infrastructure and
multi-vendor customer services.
LIFELOCK: Identity-Theft Protection Not In Contract, Suit Says
--------------------------------------------------------------
LifeLock Inc. is facing a class-action complaint before the U.S.
District Court for the Northern District of Illinois alleging it
sells identity-theft protection without telling customers that
most forms of identity theft are not covered under the contract,
CourtHouse News Service reports.
This class action is brought on behalf of the plaintiff and all
others similarly situated who purchased the defendant's LifeLock
identity theft protection.
The defendant proclaims itself the "industry leader" in
proactive identity theft protection, claims that "no one else
does because no one else can," and further promises a $1-million
guarantee that its clients' identities will remain safe.
However, the suit contends that the defendant provides nothing
of substance to justify the fees it collects from its customers.
Instead, the defendant fails to disclose to customers material
facts, such as that many forms of identity theft are not covered
by its services; for those forms of theft that are covered, its
customers are only offered partial protection; and its
$1 million "guarantee" is subject to such limitations as to be
illusory when its services fail
The plaintiff brings this action on his own behalf and as a
Class Action pursuant to Rules 23(b)(2) and 23(b)(3) of the
Federal Rules of Civil Procedure on behalf of these proposed
classes:
a. The (b)(2) Injunctive Relief Class consists of:
All persons who purchased theft identity protection
services from LifeLock.
b. The (b)(3) Class consists of:
All persons who purchased theft identity protection
services from LifeLock.
c. Alternative (b)(3) Class consists of:
All persons who purchased theft identity protection
services from LifeLock in the states of Illinois,
Arizona, California, Florida, Missouri, New York, New
Jersey, North Carolina, and Washington.
The plaintiff wants the court to rule on:
(a) whether the defendant omitted to disclose material
facts about its services and guarantee;
(b) whether the defendant's conduct violates Arizona's
consumer protection act, or alternatively, the consumer
protection acts of several states;
(c) whether the defendant was unjustly enriched; and
(d) whether declaratory relief is appropriate for, inter
alia, the provision for mandatory arbitration and a
class action ban in the defendant's Terms and
Conditions.
The plaintiff asks the court for:
-- an order certifying the Class under the appropriate
provisions of Rule 23, as well as any appropriate
subclasses, and appointing the plaintiff and his legal
counsel to represent the Class;
-- an award of reimbursement, restitution, disgorgement
from LifeLock of the benefits conferred by the plaintiff
and the Class;
-- pre- and post-judgment interest to the Class, as
allowed by law;
-- reasonable attorneys' fees and costs to counsel for
the Class if and when pecuniary benefits are obtained on
behalf of the Class; and
-- other and further relief as is just and proper.
The suit is "Mario Aliano, et al. v. Lifelock Inc., Case No.
1:08-cv-04401," filed in the U.S. District Court for the
Northern District of Illinois.
Representing the plaintiff are:
Thomas A. Zimmerman, Jr., Esq.
Hugh J. Green, Esq.
Zimmerman Law Offices, P.C.
100 West Monroe Street, Suite 1300
Chicago, IL 60603
Phone: 312-440-0020
MOTHER HUBBARD'S: Recalls 1,300 Cribs Due to Fall Hazard
--------------------------------------------------------
Mother Hubbard's Cupboards, of Toronto, Canada, in cooperation
with the U.S. Consumer Product Safety Commission, is recalling
about 1,300 cribs.
The company said the cribs fail to meet the federal safety
standards. The distance between the mattress support bracket in
the lowest position and the top of the side rail in the highest
position is less than the required 26 inches, posing a fall
hazard to children who climb over the railing. No injuries have
been reported.
The recall includes the following wooden full-size cribs:
-- "Enchantment" (model #210),
-- "Hush a Bye" (model #215),
-- "Once upon a time" (model #320) and
-- "Rock a bye" (model #1900-350).
Only date codes from 0306 through 0308 are included in this
recall. "Mother Hubbard's Cupboards," the model number and date
code are printed on a label located on the bottom inside of the
right side.
These recalled cribs were manufactured in Canada and were being
sold at juvenile product stores from March 2006 through March
2008 for between $500 and $650.
Pictures of the recalled cribs are found at:
http://www.cpsc.gov/cpscpub/prerel/prhtml08/08350a.jpg
http://www.cpsc.gov/cpscpub/prerel/prhtml08/08350b.jpg
http://www.cpsc.gov/cpscpub/prerel/prhtml08/08350c.jpg
http://www.cpsc.gov/cpscpub/prerel/prhtml08/08350d.jpg
Consumers are advised to stop using the cribs immediately and
contact Mother Hubbard's Cupboards to receive instructions on
how to re-install the support brackets to eliminate the hazard.
For additional information, please contact Mother Hubbard's
Cupboards toll-free at (888) 661-8201 between 9:00 a.m. and 6:00
p.m. ET Monday through Thursday and between 10:00 a.m. and 4:00
p.m. ET Friday and Saturday, or visit the firm's Web site:
http://www.mhcfurniture.com
NORTHSTAR NEUROSCIENCE: Board Faces Suit Over Acquisition Offers
----------------------------------------------------------------
The Board of Directors of Northstar Neuroscience, Inc., are
facing a purported class-action lawsuit in Washington over two
acquisition offers for the company, according to the company's
July 31, 2008 Form 8-K filing with the U.S. Securities and
Exchange Commission for the period ended July 28, 2008.
On July 17, 2008, a putative class-action complaint was filed
against the company's Board of Directors in the King County,
Washington Superior Court.
The lawsuit was filed by an alleged shareholder of the company,
on behalf of himself and all others similarly situated. It
alleges, among other things, that the Board breached its
fiduciary duties to shareholders in connection with two alleged
acquisition offers for the company.
The complaint seeks, among other things, injunctive relief and
attorneys' fees and costs, but does not seek direct monetary
damages from the company.
Northstar Neuroscience, Inc. -- http://www.northstarneuro.com/
-- is a development stage medical device company. The company
is focused on developing and commercializing neuromodulation
therapies to restore function of life for people suffering from
neurological diseases and disorders. Its Renova Cortical
Stimulation System is designed to deliver targeted electrical
stimulation to the cortex, the outermost layer of the brain, in
a process called cortical stimulation.
OMNICARE INC: Court Sets Sept. 18 Hearing for Appeal in Ky. Suit
----------------------------------------------------------------
The U.S. Court of Appeals for the Sixth Circuit set a hearing on
Sept. 18, 2008, in connection with arguments on an appeal in a
consolidated securities fraud class action lawsuit filed against
Omnicare Inc.
On Feb. 2 and 13, 2006, respectively, two substantially similar
putative class action complaints were filed against the company
and two of its officers in the U.S. District Court For the
Eastern District of Kentucky, in relation to the company's
December 2005 public offering. The suits are:
1. "Indiana State Dist. Council of Laborers & HOD Carriers
Pension & Welfare Fund v. Omnicare, Inc., et al., No.
2:06cv26," and
2. "Chi v. Omnicare, Inc., et al., No. 2:06cv31."
These suits asserted claims for violation of Section 10(b) and
20(a) of the U.S. Securities Exchange Act of 1934 and Rule 10b-5
promulgated thereunder. The complaints, which purport to be
brought on behalf of all company shareholders, allege that the
company artificially inflated its earnings by engaging in
improper generic drug substitution and that the defendants have
made false and misleading statements regarding the company's
business and prospects.
Thus, the suits seek, among other things, compensatory damages
and injunctive relief.
On March 7, 2006, the parties to both actions filed stipulations
agreeing that the cases should be consolidated and proposing a
scheduling order for the conduct of the actions upon
consolidation.
Those scheduling orders were entered on March 10, 2006. On
April 3, 2006, the plaintiffs in the HOD Carriers case formally
moved for consolidation of the suits and the appointment of lead
plaintiff and lead counsel pursuant to the Private Securities
Litigation Reform Act of 1995.
On May 22, 2006, that motion was granted and the cases were
consolidated. A lead plaintiff and lead counsel were also
appointed.
On July 20, 2006, the plaintiffs filed a consolidated amended
complaint, adding a third company officer as a defendant and new
factual allegations relating primarily to revenue recognition,
the valuation of receivables and the valuation of inventories.
On Oct. 31, 2006, the plaintiffs moved for leave to file a
second amended complaint, which request was granted early in
2007, on the condition that no further amendments would be
permitted absent extraordinary circumstances.
The plaintiffs filed their second amended complaint on Jan. 29,
2007. The second amended complaint:
-- expands the putative class to include all purchasers of
Omnicare common stock from Aug. 3, 2005, through
July 27, 2006,
-- names two members of the company's board of directors
as additional defendants,
-- adds a new plaintiff and a new claim for violation of
Section 11 of the Securities Act of 1933 based on
alleged false and misleading statements in the
registration statement filed in connection with the
company's December 2005 public offering,
-- alleges that the company failed to timely disclose its
contractual dispute with UnitedHealth, and
-- alleges that the company failed to timely record
certain special litigation reserves.
The defendants filed a motion to dismiss the second amended
complaint on March 12, 2007, claiming that the plaintiffs had
failed adequately to plead loss causation, scienter or any
actionable misstatement or omission. That motion was fully
briefed as of May 1, 2007.
In response to certain arguments relating to the individual
claims of the named plaintiffs that were raised in defendants'
pending motion to dismiss, plaintiffs filed a motion to add, or
in the alternative, to intervene an additional named plaintiff,
Alaska Electrical Pension Fund, on July 27, 2007.
Oral argument was held in connection with the defendants' motion
to dismiss on Aug. 2, 2007. In October 2007, the court issued
an opinion and order dismissing the case and denying the
plaintiffs' motion to add an additional named plaintiff.
On Nov. 9, 2007, the plaintiffs filed a notice of appeal with
the U.S. Court of Appeals for the Sixth Circuit with respect to
the dismissal of their case.
That appeal is fully briefed and oral argument has been
scheduled for Sept. 18, 2008, according to the company's
July 31, 2008 Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2008.
The suit is "Indiana State District Council of Laborers and HOD
Carriers Pension and Welfare Fund, et al. v. Omnicare, Inc., et
al., Case No. 2:06-cv-00026-WOB," filed in the U.S. District
Court for the Eastern District of Kentucky, Judge William O.
Bertelsman, presiding.
Representing the plaintiff is:
Shirley Huang, Esq. (shirleyh@lerachlaw.com)
Lerach Coughlin Stoia Geller Rudman & Robbins
100 Pine Street, Suite 2600
San Francisco, CA 94111
Phone: 415-288-4545
Fax: 415-288-4534
Richard A. Maniskas, Esq. (rmaniskas@sbclasslaw.com)
Schiffrin & Barroway, LLP
280 King of Prussia Road
Radnor, PA 19087
Phone: 610-667-7706
Fax: 610-667-7056
- and -
Kevin L. Murphy, Esq. (kmurphy@graydon.com)
Graydon, Head & Ritchey, LLP
2500 Chamber Center Drive, Suite 300, P.O. Box 17070
Ft. Mitchell, KY 41017
Phone: 859-344-0330
Fax: 859-344-0886
Representing the defendant is:
Richard W. Reinthaler, Esq. (rreinthaler@dl.com)
Dewey Ballantine LLP
1301 Avenue of the Americas
New York, NY 10019-6092
Phone: +1-212-259-6090
+1-212-259-8000
Fax: +1-212-259-6333
RIVERSIDE CEMENT: Contaminated Air, Soil and Water, Lawsuit Says
----------------------------------------------------------------
Riverside Cement -- a subsidiary of Texas Industries, Inc. --
and TXI Riverside are facing a class-action complaint in the
Riverside County Court in California over allegations that it
exposed Riverside residents to contaminated air, soil and water,
CourtHouse News Service reports.
Riverside residents want the companies to pay for their medical
monitoring.
Texas Industries, Inc. -- http://www.txi.com/-- is a supplier
of heavy building materials in the U.S. The Company operates
through three business segments: cement, aggregates and consumer
products. The cement segment produces gray portland cement and
specialty cements. The aggregates segment produces natural
aggregates, including sand, gravel and crushed limestone, and
specialty lightweight aggregates. The consumer products segment
primarily produces ready-mix concrete, and to a lesser extent,
packaged products. As of May 31, 2007, the Company operated 91
manufacturing facilities in six states in the U.S.
SEI INVESTMENTS: Awaits Ruling on Dismissal Bid in "Carey" Suit
---------------------------------------------------------------
The U.S. District Court for the District of Maryland has not yet
ruled on a proposal to dismiss SEI Investments Distribution Co.,
or SIDCO, a subsidiary of SEI Investments Co., from a
consolidated class action lawsuit, captioned "Stephen Carey v.
Pilgrim Baxter & Associates, Ltd., et al."
The complaint is purportedly made on behalf of all persons who
purchased or held PBHG mutual funds from Nov. 1, 1998, to
Nov. 13, 2003, and relates generally to various market timing
practices allegedly permitted by the PBHG Funds.
The suit names as defendants some 36 persons and entities,
including various persons and entities affiliated with Pilgrim
Baxter & Associates, Ltd., various PBHG Funds, various alleged
market timers, various alleged facilitating brokers, various
clearing brokers, various banks that allegedly financed the
market timing activities, various distributors or underwriters
and others.
The Complaint alleges that the company was the named distributor
or underwriter from November 1998 until July 2001 for various
PBHG funds in which market timing allegedly occurred during that
period. It generally alleges that the prospectus for certain
PBHG funds made misstatements and omissions concerning market-
timing practices in PBHG funds.
The Complaint also alleges that the company violated Sections 11
and 12 (a)(2) of the Securities Act of 1933, Section 10(b) of
the U.S. Securities Exchange Act of 1934 and Rule 10b-5
thereunder, and Sections 34(b) and 36(a) of the Investment
company Act of 1940, and that the company breached its fiduciary
duties, engaged in constructive fraud and aided and abetted the
breach by others of their fiduciary duties.
The suit does not name the company or any of its affiliates as a
market timer, facilitating or clearing broker or financier of
market timers. The Complaint seeks unspecified compensatory
and punitive damages, disgorgement and restitution.
In 2006, the plaintiffs submitted a proposed form of order
dismissing SIDCO from the action, but the court has not yet
acted on the proposed order.
The company reported no further development in the matter at its
July 31, 2008 Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2008.
The suit is "Carey v. Pilgrim Baxter & Associates, Ltd. et al.,
Case No. 1:04-cv-01151-JFM," filed in the U.S. District Court
for the District of Massachusetts, Judge J. Frederick Motz,
presiding.
Representing the plaintiffs are:
Marc A. Topaz, Esq. (mtopaz@sbtklaw.com)
Schiffrin Barroway Topaz and Kessler LLP
280 King of Prussia Rd
Radnor, PA 19087
Phone: 1-610-667-7706
Fax: 1-610-667-7056
- and -
William C. Fredericks, Esq. (bill@blbglaw.com)
Bernstein Litowitz Berger and Grossman LLP
1285 Avenue of the Americas
New York, NY 10019
Phone: 1-212-554-1400
Fax: 1-212-554-1444
Representing the defendants are:
Thomas Walter Dymek, Esq. (tdymek@stradley.com)
Stradley Ronon Stevens and Young LLP
2600 One Commerce Sq.
Philadelphia, PA 19103
Phone: 1-215-564-8000
Fax: 1-215-564-8120
- and -
Stephanie Glaser Wheeler, Esq. (wheelers@sullcrom.com)
Sullivan and Cromwell LLP
125 Broad St.
New York, NY 10004
Phone: 1-212-558-7384
Fax: 1-212-558-3354
SCIELE PHARMA: Awaits Approval of $4.7MM Securities Suit Deal
-------------------------------------------------------------
Sciele Pharma, Inc. -- formerly known as First Horizon
Pharmaceutical Corp. -- expects to receive preliminary and final
approvals for the $4.7- million settlement of a consolidated
securities fraud class-action suit that was filed against the
company.
On Aug. 22, 2002, the company, certain former and current
officers and directors were named as defendants in a
consolidated securities lawsuit filed in the U.S. District Court
for the Northern District of Georgia.
The plaintiffs in the class action alleged in general terms that
the company violated Sections 11 and 12(a)(a) of the U.S.
Securities Act of 1933 and that the company violated Sections
10(b) and 20(a) of the U.S. Securities Exchange Act of 1934 and
Rule 10b-5 promulgated thereunder.
In an amended complaint, the plaintiffs claim that the company
issued a series of materially false and misleading statements to
the market in connection with the company's public offering on
April 24, 2002, and thereafter relating to alleged "channel
stuffing" activities.
The amended complaint also alleged controlling person liability
on behalf of certain of the company's officers under Section 15
of the U.S. Securities Act of 1933 and Section 20 of the U.S.
Securities Exchange Act of 1934. The plaintiffs seek an
unspecified amount of compensatory damages.
On Sept. 29, 2004, the U.S. District Court for the Northern
District of Georgia dismissed, without prejudice, the class
action.
Although the lawsuit was dismissed, the court granted the
plaintiffs the right to refile provided that they pay all of the
defendant's fees and costs associated with filing the motion to
dismiss the lawsuit.
The plaintiffs did not file a second amended complaint as
permitted, but instead filed a motion asking the District Court
to reconsider its Sept. 29, 2004 order and to lift the condition
that they must pay defendants' fees and costs before further
amendment.
On June 22, 2005, the District Court denied the plaintiffs'
motion and gave them another opportunity to amend if they pay
the defendants' fees and costs. Once again, the plaintiffs
chose not to file a second amended complaint. Instead, the they
an appeal to the U.S. Court of Appeals for the 11th Circuit.
On Sept. 18, 2006, the Court of Appeals affirmed the District
Court's determination that the Amended Complaint was a "shotgun
pleading" that did not satisfy the pleading requirements under
the federal rules.
The Court of Appeals, however, disagreed with the remedy ordered
by the District Court. Instead of dismissing the Amended
Complaint with a right to further amend if the plaintiffs paid
the defendants' fees and costs, the Court of Appeals held that
the District Court should have ordered the plaintiffs to re-
plead under Federal Rule of Civil Procedure 12(e).
The Court of Appeals also held that the plaintiffs' claims under
the Securities Act of 1933 must meet the heightened pleading
standards of Federal Rule of Civil Procedure 9(b) because those
claims sound in fraud.
Accordingly, the Court of Appeals vacated the District Court's
orders and remanded with instructions to order a repleading.
On April 20, 2007, the plaintiffs filed a second amended
complaint. On June 29, 2007, the company filed a motion to
dismiss the second amended complaint.
The parties recently engaged in a mediation that led to an
agreement in principle to settle all of the claims in the class
action for an amount up to $4.7 million. The settlement is to
be entirely funded by the company's insurance carriers.
The parties have entered into a memorandum of understanding
regarding certain terms of the settlement. The settlement is
subject to preliminary and final approval by the U.S. District
Court.
The company expects to receive these approvals during fiscal
year 2008.
The company reported no further development in the matter in its
July 31, 2008 Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2008.
The suit is "In re First Horizon Pharmaceutical Corp. Securities
Litigation, Case No. 1:02-cv-02332-JOF," filed in the U.S.
District Court for the Northern District of Georgia, Judge J.
Owen Forrester, presiding.
Representing the plaintiffs is:
David Andrew Bain, Esq. (dab@classlaw.com)
Chitwood Harley Harnes, LLP
1230 Peachtree Street, N.E., 2300 Promenade II
Atlanta, GA 30309
Phone: 404-873-3900
Representing the defendants is:
John Patterson Brumbaugh, Esq. (pbrumbaugh@kslaw.com)
King & Spalding
191 Peachtree Street, N.E.
Atlanta, GA 30303-1763
Phone: 404-572-5100
STATE LINE NISSAN: Illegal Fees Lawsuit Goes to Arbitrator
----------------------------------------------------------
A class-action lawsuit accusing State Line Nissan Inc. of
charging illegal fees to consumers is going to an arbitrator,
Kansas City Business Journal reports.
According to KCBJ, Judge Fernando Gaitan of the U.S District
Court for the Western District of Missouri ruled that the case
should be presented to an arbitrator to determine whether an
arbitration panel should handle the case.
Rene and John Gutierrez filed the lawsuit, originally in Jackson
County Circuit Court, against the car dealership in order to
protest a $299.95 line item on their bill for a 2007 Nissan
Altima that simply said "State Line Nissan" and did not further
explain what the fee covered.
The lawsuit contends that the fee used to be called a document
preparation fee or an administrative fee but that the fee's name
was changed to cover up what had become an illegal fee for
dealerships to charge customers.
The report recounts that State Line Nissan admitted in a court
filing that it charged the line item but denied it was one of
the illegal fees that the plaintiffs claimed.
The plaintiffs seek as much as $5 million for themselves and the
class members who also have been charged the unspecified fee.
The case was recently sent to an arbitrator because of a clause
in the sales contract between State Line Nissan and its
customers that compels private arbitration to settle a wide
range of potential disputes, the report says.
SUNRISE SENIOR: Faces Securities Law Violations Lawsuit in D.C.
---------------------------------------------------------------
Sunrise Senior Living, Inc., is facing a consolidated securities
fraud lawsuit before the U.S. District Court for the District of
Columbia, according to the company's July 31, 2008 Form 10-K
filing with the U.S. Securities and Exchange Commission for the
fiscal year ended Dec. 31, 2007.
Initially, two putative securities class action complaints,
styled "United Food & Commercial Workers Union Local 880-Retail
Food Employers Joint Pension Fund, et al. v. Sunrise Senior
Living, Inc., et al., Case No. 1:07CV00102," and "First New York
Securities, L.L.C. v. Sunrise Senior Living, Inc., et al., Case
No. 1:07CV000294," were filed with the U.S. District Court for
the District of Columbia on Jan. 16, 2007, and Feb. 8, 2007,
respectively.
Both complaints alleged securities law violations by Sunrise and
certain of its current or former officers and directors based on
allegedly improper accounting practices and stock option
backdating, violations of generally accepted accounting
principles, false and misleading corporate disclosures, and
insider trading of Sunrise stock.
Both sought to certify a class for the period Aug. 4, 2005
through June 15, 2006, and both requested damages and equitable
relief, including an accounting and disgorgement.
Pursuant to procedures provided by statute, two other parties --
the Miami General Employees' & Sanitation Employees' Retirement
Trust and the Oklahoma Firefighters Pension and Retirement
System -- appeared and jointly moved for the consolidation of
the two securities cases and for appointment as lead plaintiffs,
which requests the Court ultimately approved.
The cases were consolidated on July 31, 2007, under the caption,
"In re Sunrise Senior Living, Inc. Securities Litigation, Case
No. 07-CV-00102-RBW."
Thereafter, a stipulation was submitted pursuant to which the
new putative class plaintiffs filed their consolidated amended
complaint on June 6, 2008.
The complaint alleges violations of Sections 10(b) and 20(a) of
the U.S. Securities Exchange Act of 1934, and Rule 10b-5
promulgated thereunder, and names as defendants the company,
Paul J. Klaassen, Teresa M. Klaassen, Thomas B. Newell, Tiffany
L. Tomasso, Larry E. Hulse, Carl G. Adams, Barron Anschutz, and
Kenneth J. Abod.
The defendants' responses will be due on Aug. 11, 2008.
The suit is "In re Sunrise Senior Living, Inc. Securities
Litigation, Case No. 07-CV-00102-RBW," filed in the U.S.
District Court for the District of Columbia, Judge Reggie B.
Walton, presiding.
Representing the plaintiffs is:
Jonathan Watson Cuneo, Esq. (jonc@cuneolaw.com)
Cuneo Gilbert & Laduca, LLP
507 C Street, NE
Washington, DC 20002
Phone: 202-789-3960
Fax: 202-789-1813
- and -
Elizabeth Shattuck Finberg, Esq. (efinberg@cmht.com)
Cohen, Milstein, Hausfeld & Toll, P.L.L.C
1100 New York Avenue, NW
Suite 500, West Tower
Washington, DC 20005
Phone: 202-408-4600
Fax: 202-408-4699
Representing the defendants is:
Nathaniel Thomas Connally, III (ntconnally@hhlaw.com)
Hogan & Hartson, LLP
8300 Greensboro Drive, Ste. 1100
McLean, VA 22102-3609
Phone: 703-610-6100
Fax: 703-610-6200
- and -
Laurie Beth Smilan, Esq. (laurie.smilan@lw.com)
Latham & Watkins, LLP
11955 Freedom Drive, Suite 500
Reston, VA 20190
Phone: 703-456-5220
TOWN SPORTS: Still Faces N.Y. Lawsuits Alleging Labor Violations
----------------------------------------------------------------
Town Sports International, Inc., the parent of New York Sports
Club chains, continues to face two purported class action
lawsuits in New York, alleging violations of various overtime
provisions of state labor law.
First Litigation
The first suit is "Sarah Cruz, et al. v. Town Sports
International, Inc.," filed on March 1, 2005, before ith the
Supreme Court of the State of New York, New York County. The
plaintiffs are Sarah Cruz of Union City, New Jersey, and Mathew
Dockswell of Forest Hills, New York.
The plaintiffs contend that they and many other employees
routinely worked more than 40 hours in a week but did not earn
overtime because the company deliberately misclassified them as
managers.
According to court documents, the lawyers are seeking class-
action status for the lawsuit, which they say could involve
hundreds of personal trainers and assistant fitness managers at
65 New York Sports Clubs in the state, including in New York
City and on Long Island.
The suit covers the past six years. It states that Ms. Cruz,
who has worked for the chain since 1999, often has worked 13-
hour days, five days a week, or about 65 hours, and Mr.
Dockswell, who has worked for New York Sports Club since 2002,
has regularly worked more than 40 hours a week.
On or about Nov. 2, 2005, the lawsuit was stayed upon agreement
of the parties pending mediation. On or about Nov. 28, 2006,
the plaintiffs gave notice that they wished to lift the stay.
On Feb. 7, 2007, the plaintiffs filed a motion seeking leave to
file a second amended complaint, which seeks to add to the
purported class all New York hourly employees and alleged
additional violations of the provisions of the New York State
Labor Law with respect to the payment of wages.
Second Litigation
On June 18, 2007, the same plaintiffs commenced a second
purported class action suit against the company before the
Supreme Court, New York County, seeking unpaid wages and
alleging that TSI LLC violated various wage payment and overtime
provisions of the New York State Labor Law with respect to the
payment of wages to all New York purported hourly employees.
The company reported no development in the matters at its
July 31, 2008 Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2008.
New York, New York-based Town Sports International Holdings,
Inc. -- http://www.mysportsclubs.com/-- is an owner and
operator of fitness clubs in the northeast and Mid-Atlantic
regions of the U.S. It owns and operates 141 fitness clubs in
the U.S., and Switzerland.
TYCO INTERNATIONAL: Settles New Jersey Suit for $73.25 Million
--------------------------------------------------------------
On April 29, 2008, Tyco International Ltd. signed a definitive
agreement with the plaintiff to settle the lawsuit entitled "New
Jersey v. Tyco International Ltd., et al.," the company said in
its Aug. 5 Form 10-Q filing with the U.S. Securities and
Exchange Commission.
In connection with the settlement, the Company made a payment of
$73.25 million to the plaintiffs on June 2, 2008. Pursuant to
the Separation and Distribution Agreement, the Company's share
of the settlement amount was approximately $20 million, with
Covidien and Tyco Electronics responsible for approximately
$30 million and $23 million, respectively.
The Company recorded the settlement and related receivables from
each of Covidien and Tyco Electronics for their respective
shares of the settlement amount in the second quarter of 2008
resulting in a net charge to selling, general and administrative
expenses for its share of the settlement of approximately $20
million. The parties have filed the agreed upon order of
dismissal with the Court, and the litigation has been dismissed
with prejudice.
Tyco International Ltd. -- http://www.tyco.com/-- is a global,
diversified company that provides vital products and services to
customers in five business segments: Fire & Security,
Electronics, Healthcare, Engineered Products & Services, and
Plastics & Adhesives. With 2004 revenue of $40 billion, Tyco
employs approximately 250,000 people worldwide.
TYCO INTERNATIONAL: Settles "Ballard" Securities Suit for $36MM
---------------------------------------------------------------
On June 2, 2008, Tyco International Ltd. entered into an
Agreement in Principle with the trustee of various trusts that
brought claims against the Company alleging, among other things,
securities fraud in connection with the Company's 1999
acquisition of AMP, Inc., the company said in it's Aug. 5 Form
10-Q filing with the U.S. Securities and Exchange Commission.
A definitive Settlement Agreement and Release was executed on
June 10, 2008. The Settlement Agreement sets forth the terms
pursuant to which the parties will settle all claims between
them that are raised or could have been raised in the previously
disclosed litigation entitled "Ballard v. Tyco International
Ltd."
The Settlement Agreement calls for the Company to make a payment
of $36 million to the plaintiffs, which payment is subject to
the sharing formula contained in the Separation and Distribution
Agreement. Pursuant to the sharing formula, the Company's
portion of the settlement amount was approximately $10 million,
with Tyco Electronics and Covidien responsible for approximately
$11 million and $15 million, respectively.
The Company recorded receivables from each of Covidien and Tyco
Electronics for their respective shares of the settlement amount
in the third quarter of 2008. This resulted in a net charge to
selling, general and administrative expenses for Tyco's share of
the settlement of approximately $10 million. The parties have
submitted an agreed upon order of dismissal with the Court.
Tyco International Ltd. -- http://www.tyco.com/-- is a global,
diversified company that provides vital products and services to
customers in five business segments: Fire & Security,
Electronics, Healthcare, Engineered Products & Services, and
Plastics & Adhesives. With 2004 revenue of $40 billion, Tyco
employs approximately 250,000 people worldwide.
WASHINGTON MUTUAL: Faces Mass. Suit Over Mishandled Foreclosures
----------------------------------------------------------------
Washington Mutual Bank and its agent, Harmon Law Office, are
facing a class-action complaint filed in the Superior Court in
the Commonwealth of Massachusetts accusing them of mishandling
foreclosures, the CourtHouse News Service reports.
The plaintiffs bring this suit to challenge the defendants' lack
of good faith during the process of foreclosure.
The complaint states that WAMU holds out to the public that it
is willing to accept and consider alternatives to foreclosure,
including repayment plans, mortgage modifications, and lump sum
payments to cure a default. Borrowers, seeking desperately to
keep their homes, rely on WAMU's promises, and make good faith
applications for alternatives to foreclosure. In doing so, they
forego other available options to avoid foreclosure including
Chapter 13 bankruptcy, refinancing, and private sale to preserve
equity.
WAMU fails to act on many of the applications it solicits, fails
to provide necessary information to homeowners, bills
unnecessary costs to homeowners that make cure of defaults
impossible, fails to provide homeowners with access to decision-
makes, acts arbitrarily and capriciously when responding to
applications, fails to provide reasons for denied applications,
fails to act on its promises of forebearance, and engages in
unnecessary foreclosures.
WAMU's "inaction and broken promises leave homeowners to twist
in the wind," the complaint states.
This class action is brought on behalf of all Massachusetts
homeowners whose loans are serviced by WAMU and who contacted
WAMU between Jan. 1, 2005 and the date of judgment in this
action and who either:
(1) applied for assistance without receiving a response
within 60 days;
(2) were assessed more than $100 in foreclosure fees and
costs while an assistance application was pending;
(3) sought and were not given payoff information and
information about the amount necessary to cure the
delinquency within ten days of the request; or
(4) applied for assistance and were denied relief without a
written determination containing reasons for the
denial.
The plaintiffs want the court to rule on:
(a) the nature, scope and operation of WAMU's Homeowners
assistance program and its application process;
(b) whether WAMU's public pronouncements, in conjunction
with its operation of a homeowners assistance program
that accepts applications, creates a duty to respond in
good faith within a reasonable amount of time to
homeowners who contact it;
(c) whether WAMU is aware of and has failed to remedy the
discrepancy between its public promises and its private
lack of action; and
(d) whether the court can order damages and enter
injunctive relief.
The plaintiffs request that the court:
-- assume jurisdiction over this matter;
-- certify this case as a class action and appoint named
plaintiffs to be class representatives and their
counsel to be class counsel;
-- issue declaratory and injunctive relief setting
aside the foreclosure sale;
-- enjoin defendants from continuing the unfair and
deceptive practices described in the complaint;
-- award damages, attorney fees and costs to the named
plaintiffs and the class on each claim;
-- enter an injunction enjoining the eviction of named
plaintiffs; and
-- award such other relief as it deems necessary in equity
and the interests of justice.
The suit is "Lori and Mark Pestana et al. v. Washington Mutual
Bank et al., Case No. 08-3393," filed in the Superior Court in
the Commonwealth of Massachusetts.
Representing the plaintiffs are:
Gary Klein, Esq.
Elizabeth Ryan, Esq.
Kevin Costello, Esq.
Roddy, Klein & Ryan
727 Atlantic Ave, 2nd Floor
Boston, MA 02111
Phone: 617-357- 5500
Fax: 617-357- 5030
WORLD AIRWAYS: Suits Over Ritetime Contractual Flights Settled
--------------------------------------------------------------
A settlement deal resolves a class action lawsuit concerning
whether Ritetime Aviation and Travel Services, Inc., and World
Airways, Inc., wrongfully failed to transport passengers between
Nigeria and the United States on or after December 28, 2003.
The named defendants in the complaint are:
-- World Airways, Inc.,
-- Ritetime Aviation and Travel Services, Inc.,
-- Dr. O. Peter Obafemi and
-- Capitol Indemnity Corporation.
In January 2004, ten purported class action complaints (six in
the U.S. District Court for the Eastern District of New York one
in the U.S. District Court for the Southern District of New
York, one in the Superior Court of DeKalb County, Georgia, one
in the U.S. District Court for the Northern District of New
Jersey and one in the U.S. District Court for the Northern
District of Illinois) and four individual complaints (all in the
U.S. District Court for the Eastern District of New York), and
thirteen small claims actions (one in California, three in New
Jersey, one in Georgia and eight in New York) were filed against
the Company arising out of the discontinuance of charter flights
upon the expiration of World Airways' obligation to provide
services under an air services agreement (Class Action Reporter,
Feb. 28, 2006).
The Plaintiffs have brought claims of breach of contract,
negligence, fraud and claims under international conventions
regarding air travel. World Airways denies Plaintiffs'
allegations, and claims that it is not liable for passenger
claims arising out of the cancellation of the flights.
Who Is Affected
Interested parties may be entitled to receive compensation under
this Settlement if all of the following five things are true:
(1) Before January 31, 2004, you (or someone on your
behalf) purchased but did not use all or part of a
ticket for a flight between the United States and
Nigeria in either direction on World Airways for travel
on or after December 28, 2003 as part of the flight
program run by Ritetime;
(2) You did not receive reimbursement from World Airways or
Ritetime or any of their employees or agents for the
unused portion(s) of your ticket;
(3) You did not receive a replacement flight paid for by
World Airways or Ritetime or any of their employees
and agents;
(4) You have not already entered into a binding settlement
agreement with Ritetime or World Airways; and
(5) Your claim against Obafemi, Ritetime, Capitol Indemnity
or World Airways has not been previously decided in
another proceeding.
Summary of the Settlement
To settle the lawsuit, World Airways and Capitol Indemnity have
agreed to create a fund of $5,700,000 (the "Fund") that will be
used as a lump sum settlement amount to pay qualifying Class
Members, attorneys' fees and expenses. Of this amount, Capitol
Indemnity has contributed $200,000, which represents the full
penal sum limit of the Public Charter Operator's Bond that it
issued on behalf of Ritetime.
The Settlement provides for a maximum total payment of
$3,485,000 to be paid to passengers meeting requirements
described in this Notice. If 2,050 or fewer meet the
requirements and file valid claims as described in this Notice,
each qualifying passenger will receive $1,700 and any unpaid
funds will revert to World Airways. If more than 2,050 people
meet the requirements and file valid claims, the $3,485,000 will
be split equally among qualifying passengers. For example, if
2,500 people meet the requirements and file valid claims, the
$3,485,000 will be divided equally among the 2,500 people, and
each person will receive $1,394. You will not pay attorneys'
fees from this distribution.
The Settlement also provides for payment of certain
administrative costs of the class action, the reimbursement of
the litigation expenses paid by Plaintiffs' Counsel and for
payment of Plaintiffs' Counsel's attorneys' fees. Plaintiffs'
Counsel intend to apply to the Court for attorneys' fees and
costs of $2,065,000, approximately one third (1/3) of the Fund.
The Settlement also covers the claims that Plaintiffs have
asserted against Ritetime and Obafemi. The Court has entered a
default judgment against these two defendants. As part of the
settlement process, the Settlement Class Members will assign
their claims against Ritetime and Obafemi to the Settling
Defendants.
Final Settlement Approval Hearing
The Court will hold a hearing to decide whether to approve the
Settlement at 12:00 p.m. on September 11, 2008, at the United
States District Court for the Eastern District of New York.
The suit is "In re: Nigeria Charter Flights Contract Litigation,
Case no. 1:04-md-01613-RJD-MDG," filed in the United
States District Court in New Hampshire, Judge Raymond J.
Dearie, presiding.
Representing the Company is:
Frank J. Costello, Esq. (fjcostello@zsrlaw.com)
Zuckert, Scoutt & Rasenberger, L.L.P.
888 Seventeenth Street, N.W.
Washington, DC 20006-3309
Phone: 202- 298-8660
Fax: 202-342-0683
XEROX CORP: Oct. 7 Hearing Set in "Carlson" Securities Suit Deal
----------------------------------------------------------------
The U.S. District Court for the District of Connecticut set an
Oct. 7, 2008 final fairness hearing to consider final approval
of the proposed settlement in the consolidated lawsuit entitled
"Carlson, et al. v. Xerox Corporation, et al., Case No. 3:00-cv-
01621-AWT."
Initially consisting of 21 cases, the consolidated securities
class action suit also names as defendants KPMG LLP, Paul A.
Allaire, G. Richard Thoman, Anne M. Mulcahy, Barry D. Romeril,
Gregory Tayler, and Philip Fishbach.
On Sept. 11, 2002, the court entered an endorsement order
granting the plaintiffs' motion to file a third amendment to the
consolidated complaint. The defendants' motion to dismiss the
second consolidated amended complaint was denied as moot.
According to the third consolidated amended complaint, the
plaintiffs purport to bring the case as a class action on behalf
of an expanded class consisting of all persons and entities who
purchased the company's common stock and bonds between Feb. 17,
1998, and June 28, 2002, and who were purportedly damaged.
The third consolidated amended complaint sets forth two claims:
1. each of the company, KPMG, and the individual defendants
violated Section 10(b) of the 1934 Act and U.S.
Securities and Exchange Commission Rule 10b-5
thereunder; and
2. the individual defendants are also allegedly liable as
"controlling persons" of the company pursuant to Section
20(a) of the 1934 Act.
The plaintiffs claim that the defendants participated in a
fraudulent scheme that operated as a fraud and deceit on
purchasers of the company's common stock and bonds by
disseminating materially false and misleading statements and
concealing material adverse facts relating to various of the
company's accounting and reporting practices and financial
condition.
They further allege that this scheme deceived the investing
public regarding the true state of the company's financial
condition and caused the plaintiffs and other members of the
alleged class to purchase the company's common stock and bonds
at artificially inflated prices, and prompted a SEC
investigation that led to the April 11, 2002 settlement which,
among other things, required the company to pay a $10 penalty
and restate its financials for the years 1997-2000, including
restatement of financials previously corrected in an earlier
restatement which plaintiffs contend was improper.
The third consolidated amended complaint seeks unspecified
compensatory damages in favor of the plaintiffs and the other
class members against all defendants, jointly and severally,
including interest thereon, together with reasonable costs and
expenses, including counsel fees and expert fees.
On Dec. 2, 2002, the company and the individual defendants filed
a motion to dismiss the complaint, which request was denied by
the court on July 13, 2005.
On Jan. 19, 2006, the plaintiffs filed a motion for class
certification.
On July 18, 2007, the court entered an order denying the
plaintiffs' motion for class certification, without prejudice to
renewal after the court holds a pre-filing conference to
identify factual disputes the Court will be required to resolve
in ruling on the motion.
The plaintiffs have filed notices of withdrawal of proposed
class representatives Sol Sachs, Leonard Nelson and Fernan
Cepero.
The court has approved the plaintiffs' notice of withdrawal of
proposed class representative Fernan Cepero.
On March 27, 2008, the court granted preliminary approval of an
agreement to settle the case. The company has agreed to make
cash payments totaling $670. KPMG has agreed to make cash
payments totaling $80.
The individual defendants and the company do not admit any
wrongdoing as a part of the settlement.
As required by Rule 23(e) of the Federal Rules of Civil
Procedure, the Court has scheduled a settlement fairness hearing
for Oct. 7, 2008, in connection with the deal.
The company reported no further development in the matter in its
July 31, 2008 Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2008.
The suit is "Carlson, et al. v. Xerox Corporation, et al., Case
No. 3:00-cv-01621-AWT," filed in the U.S. District Court for the
District of Connecticut, Judge Alvin W. Thompson, presiding.
Representing the plaintiffs are:
Francis P. Karam, Esq. (karam@bernlieb.com)
Bernstein Liebhard & Lifshitz, LLP
10 East 40th St.
New York, NY 10016
Phone: 212-779-1414
Fax: 212-779-3218
- and -
Eliot B. Gersten, Esq. (egersten@gcrlaw.net)
Gersten & Clifford
214 Main Street
Hartford, CT 06106
Phone: 860-527-7044
Fax: 860-527-4968
Representing the defendants are:
Michael Gruenglas, Esq.
Skadden, Arps, Slate, Meagher & Flom
Four Times Square
New York, NY 10036-3897
Phone: 212-735-3000
- and -
Timothy W. Blakely, Esq.
Cravath, Swaine & Moore
825 8th Ave., Worldwide Plaza
New York, NY 10019-7415
Phone: 212-474-1000
Fax: 212-474-3700.
XEROX CORP: Continues to Face Securities Fraud Lawsuit in Conn.
---------------------------------------------------------------
Xerox Corp. and certain other defendants continue to face a
consolidated securities fraud lawsuit before the U.S. District
Court for the District of Connecticut. The matter is captioned
"In re Xerox Corporation Securities Litigation."
Initially consisting of 17 cases, the consolidated action also
named these individuals as defendants:
-- Barry Romeril,
-- Paul Allaire, and
-- G. Richard Thoman.
The suit purports to be a class action on behalf of the named
plaintiffs and all other purchasers of common stock of the
company between Oct. 22, 1998, and Oct. 7, 1999.
The amended consolidated complaint in the action alleges that in
violation of Section 10(b) and 20(a) of the U.S. Securities
Exchange Act of 1934, as amended, and SEC Rule 10b-5 thereunder,
each of the defendants is liable as a participant in a
fraudulent scheme and course of business that operated as a
fraud or deceit on purchasers of the company's common stock
during the class period by disseminating materially false and
misleading statements and concealing material facts relating to
the defendants' alleged failure to disclose the material
negative impact that the April 1998 restructuring had on the
company's operations and revenues.
The suit further claims that the alleged scheme:
-- deceived the investing public regarding the economic
capabilities, sales proficiencies, growth, operations
and the intrinsic value of the company's common
stock;
-- allowed several corporate insiders, such as the named
individual defendants, to sell shares of privately held
common stock of the company while in possession of
materially adverse, non-public information; and
-- caused the individual plaintiffs and the other members
of the purported class to purchase common stock of the
company at inflated prices.
The amended consolidated complaint seeks unspecified
compensatory damages in favor of the plaintiffs and the other
members of the purported class against all defendants, jointly
and severally, for all damages sustained as a result of
defendants' alleged wrongdoing, including interest thereon,
together with reasonable costs and expenses incurred in the
action, including counsel fees and expert fees.
In 2001, the Court denied the defendants' motion to dismiss the
complaint. The plaintiffs' motion for class certification was
also denied by the Court in 2006, without prejudice to refiling.
In February 2007, the Court granted the motion of the
International Brotherhood of Electrical Workers Welfare Fund of
Local Union No. 164, Robert W. Roten, Robert Agius and Georgia
Stanley to appoint them as additional lead plaintiffs.
In July 2007, the Court denied the plaintiffs' renewed motion
for class certification, without prejudice to renewal after the
Court holds a pre-filing conference to identify factual disputes
the Court will be required to resolve in ruling on the motion.
After that conference and Mr. Agius' withdrawal as lead
plaintiff and proposed class representative, the plaintiffs, in
February 2008, filed a second renewed motion for class
certification, which remains pending.
In April 2008, the defendants filed their response and motion to
disqualify Milberg LLP as a lead counsel, which motion is also
pending.
The parties then filed motions to exclude certain expert
testimony.
Briefing with respect to the pending motions is not yet
complete, according to the company's July 31, 2008 Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended June 30, 2008.
The suit is "In Re Xerox Corp. Securities Litigation, Case No.
3:99-cv-02374-AWT," filed in the U.S. District Court for the
District of Connecticut, Judge Alvin W. Thompson, presiding.
Representing the plaintiffs are:
Bernstein Liebhard & Lifshitz LLP
10 E. 40th Street, 22nd Floor,
New York, NY 10016
Phone: 800-217-1522
e-mail: info@bernlieb.com
- and -
Hurwitz & Sagarin
147 North Broad St., P.O. Box 112
Milford, CT 06460-0112,
Phone: 203-877-8000.
Representing the defendants are:
Alfred U. Pavlis, Esq. (apavlis@dalypavlis.com)
Daly & Pavlis, LLC
107 John St.
Southport, CT 06890
Phone: 203-255-6700
Fax: 203-255-1953
- and -
Andrew N. Vollmer, Esq.
Wilmer, Cutler & Pickering,
2445 M St. NW
Washington, DC 20037-1420
Phone: 202-663-6000.
XEROX CORP: Discovery Still Ongoing in Connecticut ERISA Lawsuit
----------------------------------------------------------------
Discovery is still ongoing in a consolidated lawsuit filed in
the U.S. District Court for the District of Connecticut that
accuses Xerox Corp. of violating the Employee Retirement Income
Security Act.
On July 1, 2002, a class action complaint, captioned "Patti v.
Xerox Corp. et al.," was filed over alleged ERISA violations.
Three additional class action suits -- "Hopkins," "Uebele" and
"Saba" -- were subsequently filed before the same court
asserting substantially similar claims.
On Oct. 16, 2002, the four cases were consolidated as "In Re
Xerox Corp. ERISA Litigation." On Nov. 15, 2002, a consolidated
amended complaint was filed.
A fifth class action -- "Wright" -- was filed in the District of
Columbia. It has been transferred to Connecticut and
consolidated with the other actions.
The purported class includes all persons who invested or
maintained investments in the Xerox Stock Fund in the Xerox
401(k) Plans (either salaried or union) during the proposed
class period, May 12, 1997 through Nov. 15, 2002, and allegedly
exceeds 50,000 persons.
The named defendants include the company and these individuals
or groups of individuals:
-- Plan Administrator;
-- Board of Directors;
-- Fiduciary Investment Review Committee;
-- Joint Administrative Board;
-- Finance Committee of the Board of Directors; and
-- Treasurer.
The complaint claims that all the foregoing defendants were
fiduciaries of the Plan under ERISA and, as such, were obligated
to protect the Plan's assets and act in the interest of Plan
participants. The complaint alleges that the defendants failed
to do so and thereby breached their fiduciary duties.
Specifically, the plaintiffs claim that the defendants failed to
provide accurate and complete material information to
participants concerning company stock, including accounting
practices which allegedly artificially inflated the value of the
stock, and misled participants regarding the soundness of the
stock and the prudence of investing their retirement assets in
company stock.
The plaintiffs also claim that the defendants failed to invest
Plan assets prudently, to monitor the other fiduciaries and to
disregard Plan directives they knew or should have known were
imprudent, and failed to avoid conflicts of interest.
The complaint does not specify the amount of damages sought.
However, it asks that the losses to the Plan be restored, which
it describes as "millions of dollars."
It also seeks other legal and equitable relief, as appropriate,
to remedy the alleged breaches of fiduciary duty, as well as
interest, costs and attorneys' fees.
The company filed a motion to dismiss the complaint.
The plaintiffs subsequently filed a motion for class
certification and a motion to commence discovery. The
defendants have opposed these motions, contending that both are
premature before there is a decision on their motion to dismiss.
In the fall of 2004, the court requested an updated briefing on
the company's dismissal motion and update briefs were filed in
December that year.
On March 31, 2006, the court granted the company's motion to
postpone consideration of class certification pending
disposition of the dismissal motion, and granted the plaintiffs'
motion to commence formal discovery.
On April 17, 2007, the Court ruled on the dismissal motion,
granting it in part and denying it in part, and giving the
plaintiffs an opportunity to replead. In essence, the Court
stated that the class period does not extend past the date on
which the complaint was filed -- Nov. 15, 2002.
The Court also required the plaintiffs to plead with greater
specificity with regard to the defendants' alleged breach of
duties, and granted the motion with respect to the duty of
loyalty count, agreeing with defendants that ERISA does not
require fiduciaries to avoid conflicts of interest but rather
sets a loyalty standard to which fiduciaries must adhere when
faced with a conflict of interest. However, the Court did give
the plaintiffs leave to replead the duty of loyalty count.
Furthermore, the Court granted the plaintiffs' prayer for relief
seeking to enjoin the defendants from violating ERISA, holding
that an injunction must be more specific than a simple command
that the defendants obey the law.
The Court denied the motion as to the prudence count and the
monitoring count, ruling that further fact development is needed
as to those counts, and, on the disclosure count, determined
that plaintiffs have set forth a claim, rejecting the
defendants' assertion that SEC filings made by the company in
its corporate capacity and required by the federal securities
laws cannot be the basis of a fiduciary breach under ERISA even
if subsequently included in disclosures made directly to plan
participants.
Finally, the Court held that the plaintiffs are not precluded
from pursuing their claims under section 502(a)(2) merely
because any recovery will not be shared by all participants in
the plan but rather by a sub-class of participants who had
invested in Xerox stock during the class period.
Also on April 17, 2007, the Court denied the plaintiffs' motion
to certify a class and said that the subject needs to be
addressed in a scheduling conference that the Court will convene
in the future.
The plaintiffs subsequently filed a second consolidated amended
complaint, alleging that some or all the defendants breached
their ERISA fiduciary duties during 1997-2002 by:
-- maintaining the Xerox Stock Fund as an investment
option under the Plan;
-- failing to monitor the conduct of Plan fiduciaries;
and
-- misleading Plan participants about Xerox stock as an
investment option under the Plans.
On July 18, 2007, the defendants answered the new complaint and
also filed a partial motion to dismiss.
On Aug. 9, 2007, the plaintiffs filed their motion for class
certification and on Aug. 31, 2007, filed their opposition to
the defendants' partial motion to dismiss.
In March 2008, the Court denied the plaintiffs' motion for class
certification, without prejudice against re-filing, and also
denied most of the defendants' partial motion to dismiss.
Currently, discovery in the case is ongoing, according to the
company's July 31, 2008 Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended
June 30, 2008.
The suit is "In Re Xerox Corp. ERISA Litigation, Case No. 3:02-
cv-01138-AWT," filed in the U.S. District Court for the District
of Connecticut, Judge Alvin W. Thompson, presiding.
Representing the plaintiffs are:
Gary A. Gotto, Esq. (ggotto@kellerrohrback.com)
Keller Rohrback
3101 North Central Avenue, Suite 900
Phoenix, Arizona 85012-2600
Phone: 602-230-6322
Fax: 602-248-2822
- and -
Charles R. Watkins, Esq. (chuckwatkins@ameritech.net)
Susman & Watkins
Two First National Plaza, Suite 600,
Chicago, IL 60603
Phone: 312-346-3466
Fax: 312-346-2829
Representing the defendants are:
William H. Boice, Esq. (bboice@kilpatrickstockton.com)
Kilpatrick Stockton
1100 Peachtree St., Ste. 2800
Atlanta, GA 30309-4530
Phone: 404-815-6464
Fax: 404-541-3134
- and -
William J. Egan, Esq. (wegan@brownraysman.com)
Brown Raysman Millstein Felder & Steiner
City Place II, 185 Asylum Street, 10th Floor
Hartford, CT 06103
Phone: 860-275-6400
Fax: 860-275-6410
XEROX CORP: Supreme Court Affirms Decision in "Digwamaje" Matter
----------------------------------------------------------------
The U.S. Supreme Court affirmed the U.S. Court of Appeals for
the Second Circuit's October 2007 opinion in the case entitled
"Digwamaje, et al. v. IBM Corporation, et al., Case No. 1:02-cv-
06218-JES," which named Xerox Corp., along with several other
companies, as defendants.
The suit was originally filed in the U.S. District Court for the
Southern District of New York against Xerox Corp. and several
other corporations. It alleges that the defendants provided
material assistance to the apartheid government in South Africa
from 1948 to 1994, by engaging in commerce in South Africa and
with the South African government and by employing forced labor,
thereby violating both international and common law.
The plaintiffs claim violations of the Alien Tort Claims Act,
the Torture Victims Protection Act and Racketeer Influenced and
Corrupt Organizations Act. They also assert human rights
violations and crimes against humanity.
The suit seeks compensatory damages in excess of $200 billion
and punitive damages also in excess of $200 billion. The
foregoing damages are being sought from all defendants, jointly
and severally.
The company filed a motion to dismiss complaint (second
amendment). Oral argument on the motion was heard on Nov. 6,
2003.
By Memorandum Opinion and Order entered on Nov. 29, 2004, the
court granted the dismissal motion.
On Dec. 27, 2004, the company received a notice of appeal.
On Feb. 16, 2005, the parties filed a stipulation withdrawing
the appeal on the ground that the judgment of dismissal was not
appealable.
On March 28, 2005, the plaintiffs submitted a letter requesting
permission to file a motion for leave to file another amended
and consolidated complaint. The court subsequently denied this
request.
In a second summary order, the court amended its Nov. 29, 2004
Opinion and Order, which dismissed the action, so as to render
the Opinion and Order appealable. The plaintiffs filed a new
appeal on May 3, 2005.
On Aug. 19, 2005, the plaintiff-appellants filed their brief
before the U.S. Court of Appeals for the Second Circuit. On
Oct. 4, 2005, the defendant-appellees filed their brief in the
Second Circuit Court of Appeals. Oral argument in the Second
Circuit Court of Appeals was held on Jan. 24, 2006.
On Oct. 12, 2007, the U.S. Court of Appeals affirmed the
dismissal of the claims asserted under the Torture Victim
Protection Act, vacated the dismissal of the claims asserted
under the Alien Tort Claims Act, and remanded those claims to
the district court for further proceedings.
In January 2008, the defendant-appellees filed a petition for a
writ of certiorari with the U.S. Supreme Court, seeking review
of the Second Circuit's October 2007 opinion.
On May 12, 2008, the Supreme Court, lacking a quorum due to the
recusal of four justices, affirmed the decision of the Second
Circuit pursuant to 28 U.S.C. Section 2109.
That section requires the trial court to enter an order
affirming a Court of Appeals decision when a quorum is not
available to hear the case. The case proceeds in the District
Court, according to the company's July 31, 2008 Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended June 30, 2008.
The suit is "Digwamaje, et al. v. IBM Corporation, et al., Case
No. 1:02-cv-06218-JES," filed in the U.S. District Court for the
Southern District of New York, Judge John E. Sprizzo, presiding.
Representing the plaintiffs are:
Kweku J. Hanson, Esq.
487 Main Street
Harford, CT 06106
Phone: 860-728-5454
Fax: 860-548-9660
Medi Moira Mokuena
268 Jubilee Avenue, Halfway House 1685
Extension 12
Republic of South Africa
- and -
Paul M. Ngobeni, Esq.
914 Main Street, Suite 206
East Hartford, CT 06108
Phone: 860-289-3155
508-620-4798.
Representing the defendants are:
Kristin M. Heine, Esq.
Drinker, Biddle & Reath, LLP
500 Campus Drive, Florham Park
NJ 07932-1047
Phone: 973-549-7338
Fax: 973-360-9831
Web site: http://www.drinkerbiddle.com/
- and -
Kristin Michele Heine, Esq. (kristin.heine@dbr.com)
Drinker, Biddle & Reath, LLP
140 Broadway, 39th Flr.
New York, NY 10005
Phone: 973-549-7338
Fax: 973-360-9831
XEROX CORP: Court Still to Approve Civil Rights Suit Settlement
---------------------------------------------------------------
The U.S. District Court for the Eastern District of New York has
approve on a final basis the proposed settlement in the matter
captioned "Warren, et al. v. Xerox Corp."
The suit, filed in May 2001, alleged race discrimination with
respect to sales territory assignments, quotas and compensation.
On March 11, 2004, the Court entered an order certifying a
nationwide class of all black salespersons employed by Xerox
from Feb. 1, 1997, to the present under Title VII of the Civil
Rights Act of 1964, as amended, and the Civil Rights Act of
1871. Six black sales representatives commenced the suit on
May 9, 2001.
The plaintiffs allege that the company engaged in a pattern or
practice of race discrimination against them and other black
sales representatives by assigning them to less desirable sales
territories, denying them promotional opportunities, and paying
them less than their white counterparts.
Although the complaint does not specify the amount of damages
sought, the plaintiffs seek, on behalf of themselves and the
classes they seek to represent, front and back pay, compensatory
and punitive damages, and attorneys' fees.
A tentative settlement agreement was eventually reached, the
terms of which are not material to Xerox, and in 2007, the
parties submitted the settlement agreement to the Court for
preliminary approval.
At a status conference held on June 6, 2007, the judge indicated
that he would not approve the current version of the settlement
agreement. He said he was concerned that the named plaintiffs
may be receiving a disproportionate amount of damages as
compared to the other class members. He directed the parties to
revise this aspect of the agreement and bring it back to him.
A revised agreement was submitted to the Court on March 7, 2008,
and the Court approved it on a preliminary basis, without
hearing, on April 3, 2008.
Notice of the preliminary approval was mailed to class members
on May 9, 2008, and a final fairness hearing was held on
July 11, 2008.
The company is awaiting the Court's decision with respect to
final approval of the settlement, according to the company's
July 31, 2008 Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2008.
The suit is "Warren, et al. v. Xerox Corp., Case No. 1:01-cv-
02909-JG-KAM," filed in the U.S. District Court for the
Eastern District of New York, Judge John Gleeson presiding.
Representing the plaintiffs is:
Barry Alan Weprin, Esq. (bweprin@milbergweiss.com)
Milberg, Weiss, Bershad, Hynes & Schulman, LLP
One Pennsylvania Plaza, 48th floor
New York, NY 10119-0165
Phone: 212-946-9312
Fax: 212-868-1229
Representing the defendant are:
Eugene D. Ulterino, Esq. (eulterino@nixonpeabody.com)
Amy Laura Ventry, Esq. (aventry@nixonpeabody.com)
Nixon Peabody, LLP
Phone: 585-263-1580
516-832-7500
Fax: 585-263-1600
516-832-7555
New Securities Fraud Cases
CARMAX INC: Coughlin Stoia Files Securities Fraud Suit in Va.
-------------------------------------------------------------
Coughlin Stoia Geller Rudman & Robbins LLP filed a class action
lawsuit in the United States District Court for the Eastern
District of Virginia on behalf of purchasers of CarMax, Inc.
common stock during the period between April 2, 2008, and
June 17, 2008.
The complaint charges CarMax and certain of its officers and
directors with violations of the Securities Exchange Act of
1934.
CarMax is a nationwide retailer of new and used automotive
vehicles. CarMax also provides customers with a full range of
related products and services, including the financing of
vehicle purchases through CarMax Auto Finance, the Company's own
finance operation, and third-party financing providers; the sale
of extended service plans and accessories; the appraisal and
purchase of vehicles directly from consumers; and vehicle repair
service.
The complaint alleges that, during the Class Period, CarMax was
not meeting internal sales targets and was facing a 55%
shortfall in its net income for first quarter of fiscal year
2009, later prompting the Company to suspend its financial
guidance for the rest of fiscal 2009. According to the
complaint, CarMax publicly issued materially false and
misleading statements and failed to disclose:
(i) that CarMax was not positioned to meet its sales
targets or earnings objectives for fiscal 2009;
(ii) that the Company had completed a refinancing of its
warehouse facility which had materially increased the
Company's funding costs; and
(iii) as a result of the foregoing, defendants had no
reasonable basis for their revenues and earnings
guidance for fiscal 2009.
On June 18, 2008, the Company issued a press release announcing
its financial results for the first quarter of fiscal 2009, the
period ended May 31, 2008. The Company also announced that it
was suspending its financial guidance for the rest of fiscal
2009. Upon this news, shares of the Company's stock fell $2 per
share, or approximately 11%, to close at $16.34 per share, on
heavy trading volume.
The plaintiff seeks to recover damages on behalf of all
purchasers of CarMax common stock during the Class Period.
For more information, contact:
Samuel H. Rudman, Esq.
David A. Rosenfeld, Esq.
Coughlin Stoia Geller Rudman & Robbins LLP
655 West Broadway, Suite 1900
San Diego, CA 92101
Phone: 800-449-4900
e-mail: djr@csgrr.com
GT SOLAR: Shapiro Haber Files Securities Fraud Lawsuit in N.H.
--------------------------------------------------------------
Shapiro Haber & Urmy LLP filed a class action in the United
States District Court for the District of New Hampshire on
behalf of purchasers of GT Solar International, Inc. common
stock on July 24, 2008, pursuant to, or traceable to, the
Company's false and misleading Registration Statement issued in
connection with the Company's Initial Public Offering.
Persons who bought GT Solar stock in the IPO or who purchased
shares in the market on July 24, 2008, are included in the
proposed Class.
The complaint charges GT Solar and certain of its officers and
directors with violations of the Securities Act of 1933 in
connection with the Company's IPO. In the IPO, 30.3 million
shares of GT Solar stock were sold at $16.50 per share.
The $500 million proceeds from the IPO were disbursed to GT
Solar Holdings, LLC, and then distributed to GT Holdings'
shareholders. None of the proceeds were distributed to GT
Solar.
The complaint alleges that the Registration Statement failed to
disclose that GT Solar's largest customer, LDK Solar Co., Ltd.,
which accounted for 62% of the Company's revenue during the
fiscal year ended March 31, 2008, had ceased ordering GT Solar's
principal product, DSS Furnaces, from GT Solar and that LDK had
decided to purchase furnaces from a competitor of GT Solar. On
July 25, 2008, one day after the IPO, LDK announced that it had
entered into a three-year contract to purchase furnaces from JYT
Corporation.
As a result, GT Solar stock, which was sold in the IPO for
$16.50 per share, sold as low as $9.30 per share, and closed at
$12.59 per share, on July 25, 2008, a drop of 23% from the IPO
price one day earlier. Plaintiff seeks to recover damages on
behalf of all persons or entities who acquired the common stock
of GT Solar on July 24, 2008, pursuant to, or traceable to, the
Registration Statement issued in connection with the Company's
IPO.
Interested parties may move the court no later than Sept. 30,
2008, for lead plaintiff appointment.
For more information, contact:
Edward F. Haber, Esq. (ehaber@shulaw.com)
Michelle Blauner, Esq. (mblauner@shulaw.com)
Shapiro Haber & Urmy LLP
53 State Street, 37th Floor
Boston, MA 02109
Phone: 800-287-8119
617-439-3939
ZIMMER HOLDINGS: Federman Sherwood Files Indiana Securities Suit
----------------------------------------------------------------
On August 5, 2008, a class action lawsuit was filed in the
United States District Court for the Southern District of
Indiana against Zimmer Holdings, Inc.
The complaint alleges violations of federal securities laws,
Sections 10(b) and 20(a) of the Securities Exchange Act of 1934
and Rule 10b-5, including allegations of issuing a series of
material misrepresentations to the market which had the effect
of artificially inflating the market price. The class period is
from January 29, 2008, through July 22, 2008.
The plaintiff seeks to recover damages on behalf of the Class.
For more information, contact:
William B. Federman, Esq. (wfederman@aol.com)
Federman & Sherwood
10205 North Pennsylvania Avenue
Oklahoma City, OK 73120
Web site: http://www.federmanlaw.com
Asbestos Alerts
ASBESTOS LITIGATION: Appeals Court Reverses Ainsworth Suit Order
----------------------------------------------------------------
The Court of Appeals of Minnesota reversed a ruling of a
district court, which had denied Ainsworth-Benning's motion to
dismiss an asbestos-related lawsuit filed by Heather Von St.
James.
The case is styled Heather Von St. James, et al., Respondents v.
3M Corporation, et al., Defendants, Ainsworth-Benning
Construction, Inc., Appellant.
Judges Wilhelmina M. Wright, Roger M. Klaphake, and Lawrence T.
Collins entered judgment in Case No. A07-1643 on July 29, 2008.
Ainsworth-Benning is a South Dakota corporation based in
Spearfish, S.D. It has conducted business in South Dakota, North
Dakota, Wyoming, Nebraska, Montana, and Colorado. There was no
evidence that Ainsworth-Benning has ever had business in or
solicited business from Minnesota.
Mrs. Von St. James grew up in Spearfish, where her father,
Ronald Rosedahl, was employed as a laborer with Ainsworth-
Benning during the late 1970s and early 1980s.
In 2005, Mrs. Von St. James was diagnosed with mesothelioma
allegedly caused by childhood exposure to her father's asbestos-
covered work clothes.
Mrs. Von St. James and her husband brought this suit alleging
various theories of negligence, strict product liability, and
breach of warranty.
Ainsworth-Benning moved to dismiss, arguing that it lacked the
minimum contacts with Minnesota necessary to establish personal
jurisdiction.
The district court denied Ainsworth-Benning's motion based on
the jurisdictional-deposition testimony of Ainsworth-Benning's
president, James Benning. Ainsworth-Benning appealed.
Under the governing constitutional standards, Minnesota is not
an appropriate forum for Mrs. Von St. James' action against
Ainsworth-Benning.
The Appeals Court reversed.
Michael S. Polk, Esq., and Michael R. Strom, Esq., of Sieben
Polk, in 1640 South Frontage Road, Suite 200, Hastings, Minn.;
and Jessica M. Dean, Esq., of Simon, Eddins & Greenstone, at
3232 McKinney Avenue, Suite 610, Dallas, represented Heather Von
St. James and others.
Corey J. Quinton, Esq., of Oppegard, Wolf & Quinton, at 1800
30th Avenue South, Moorhead, Minn., represented Ainsworth-
Benning Construction.
ASBESTOS LITIGATION: 114T Claims Ongoing v. PPG Ind. at June 30
---------------------------------------------------------------
PPG Industries, Inc., as of June 30, 2008, was one of many
defendants in numerous asbestos-related lawsuits involving about
114,000 open claims served on it, according to the Company's
latest quarterly report filed with the Securities and Exchange
Commission.
For over 30 years, the Company has been a defendant in lawsuits
involving claims alleging personal injury from exposure to
asbestos. Most of the Company's potential exposure relates to
allegations by plaintiffs that the Company should be liable for
injuries involving asbestos-containing thermal insulation
products manufactured and distributed by Pittsburgh Corning
Corporation.
The Company and Corning Incorporated are each 50 percent
shareholders of PC. The Company has denied responsibility for,
and has defended, all claims for any injuries caused by PC
products.
At a Jan. 10, 2008 hearing before the U.S. Bankruptcy Court,
certain parties in interest, including the Company, reported
progress toward a third amended plan of reorganization that
would, if finally approved by the parties, address the issues
raised in the Court's Dec. 21, 2006 ruling.
The interested parties have continued to engage in extensive
negotiations regarding the terms of a third amended plan of
reorganization. The Bankruptcy Court has ordered the parties to
file a third amended plan of reorganization, which the parties
expect to file in early August 2008.
The third amended plan of reorganization is still being
negotiated among the parties and would include modifications to
the terms of the PPG Settlement Arrangement to be incorporated
in such plan.
Because the filing of asbestos claims against the Company has
been enjoined since April 2000, a significant number of
additional claims may be filed against the Company if the
Bankruptcy Court stay were to expire.
If the PPG Settlement Arrangement is not implemented, for any
reason, and the Bankruptcy Court stay expires, the Company
intends to defend the pending and any future asbestos claims
against it and its subsidiaries.
Prior to 2000, the Company had never been found liable for any
such claims, in numerous cases the Company had been dismissed on
motions prior to trial, and aggregate settlements by the Company
to date have been immaterial.
In January 2000, in a trial in a state court in Texas involving
six plaintiffs, the jury found the Company not liable. However,
a week later in a separate trial also in a state court in Texas,
another jury found the Company, for the first time, partly
responsible for injuries to five plaintiffs alleged to be caused
by PC products.
The Company intends to appeal the adverse verdict in the event
the settlement does not become effective, or the stay is lifted
as to these claims, which are the subject of a motion to lift
the stay.
Headquartered in Pittsburgh, PPG Industries, Inc. supplies
paints, coatings, chemicals, optical products, specialty
materials, glass and fiber glass. The Company has more than 150
manufacturing facilities and equity affiliates and operates in
more than 60 countries.
ASBESTOS LITIGATION: Goodrich, Units Still Face Exposure Actions
----------------------------------------------------------------
Goodrich Corporation and some of its subsidiaries continue to
face various actions filed by plaintiffs alleging damages as a
result of exposure to asbestos fibers in products or at its
facilities.
A number of these cases involve maritime claims, which have been
and are expected to continue to be administratively dismissed by
the court.
In May 2002, the Company completed the tax-free spin-off of its
Engineered Industrial Products (EIP) segment, which at the time
of the spin-off included EnPro Industries, Inc. and Coltec
Industries Inc.
At that time, two Coltec subsidiaries were defendants in a
significant number of personal injury claims relating to alleged
asbestos-containing products sold by those subsidiaries prior to
the Company's ownership.
It is possible that asbestos-related claims might be asserted
against the Company on the theory that it has some
responsibility for the asbestos-related liabilities of EnPro,
Coltec or its subsidiaries.
A limited number of asbestos-related claims have been asserted
against the Company as "successor" to Coltec or one of its
subsidiaries. The Company said it believes that it has
substantial legal defenses against these and other such claims.
In addition, the agreement between EnPro and the Company that
was used to effectuate the spin-off provides the Company with an
indemnification from EnPro covering these liabilities.
Headquartered in Charlotte, N.C., Goodrich Corporation supplies
aerospace components, systems and services to the commercial and
general aviation airplane markets. The Company also supplies
systems and products to the global defense and space markets.
The Company's products and services are sold to customers in
North America, Europe and Asia.
ASBESTOS LITIGATION: Hartford Liability Totals $1.97B at June 30
----------------------------------------------------------------
The Hartford Financial Services Group, Inc.'s net asbestos
liability, as of June 30, 2008, was US$1.967 billion, according
to the Company's quarterly report filed with the Securities and
Exchange Commission on July 28, 2008.
As of June 30, 2008, the Company's total asbestos reserves were
US$2.676 billion.
For the three months ended June 30, 2008, net paid losses and
loss adjustment expense were US$36 million and net incurred
losses and LAE were US$54 million.
For the six months ended June 30, 2008, net paid losses and LAE
were US$87 million and net incurred losses and LAE were US$56
million.
Headquartered in Hartford, Conn., The Hartford Financial
Services Group, Inc. is a financial holding company for a group
of subsidiaries that provide investment products and life and
property and casualty insurance to both individual and business
customers in the United States and internationally.
ASBESTOS LITIGATION: Union Carbide Has 88,694 Unresolved Claims
----------------------------------------------------------------
Union Carbide Corporation recorded 88,694 unresolved asbestos
claims filed against it at June 30, 2008, compared with 104,240
claims at June 30, 2007.
The Company recorded 90,184 unresolved asbestos claims filed
against it at March 31, 2008, compared with 112,747 claims at
March 31, 2007. (Class Action Reporter, May 9, 2008)
As of June 30, 2008, the Company noted 6,035 claims filed and
7,553 claims settled, dismissed, or otherwise resolved. In the
same period, the Company noted 28,514 claimants with claims
against both the Company and a former subsidiary Amchem
Chemicals, Inc. and 60,540 individual claimants.
As of June 30, 2007, the Company noted 5,839 claims filed and
13,486 claims settled, dismissed, or otherwise resolved. In the
same period, the Company noted 35,025 claimants with claims
against both the Company and Amchem and 69,215 individual
claimants.
The Company is and has been involved in asbestos-related suits
filed primarily in state courts during the past three decades.
These suits allege personal injury resulting from exposure to
asbestos-containing products and frequently seek both actual and
punitive damages.
The alleged claims primarily relate to products that the Company
sold in the past, alleged exposure to asbestos-containing
products located on Company premises, and the Company's
responsibility for asbestos suits filed against Amchem.
Headquartered in Houston, Union Carbide Corporation, a
subsidiary of The Dow Chemical Company, produces building-block
chemicals like ethylene and propylene that are converted into
polyethylene and polypropylene. The Company also produces
ethylene oxide and ethylene glycol used to make polyester fibers
and antifreeze, respectively.
ASBESTOS LITIGATION: Union Carbide Has $123M Current Liability
--------------------------------------------------------------
Union Carbide Corporation's current asbestos-related liabilities
were US$123 million as of June 30, 2008, compared with US$141
million as of Dec. 31, 2007, according to the Company's
quarterly report filed with the Securities and Exchange
Commission on July 29, 2008.
The Company's asbestos-related liability for pending and future
claims was US$1 billion at June 30, 2008. About 31 percent of
the recorded liability related to pending claims and about 69
percent related to future claims.
Headquartered in Houston, Union Carbide Corporation, a
subsidiary of The Dow Chemical Company, produces building-block
chemicals like ethylene and propylene that are converted into
polyethylene and polypropylene. The Company also produces
ethylene oxide and ethylene glycol used to make polyester fibers
and antifreeze, respectively.
ASBESTOS LITIGATION: UCC Records $91M Defense, Resolution Costs
---------------------------------------------------------------
Union Carbide Corporation, for the six months ended June 30,
2008, recorded US$91 million as asbestos defense and resolution
costs, of which US$23 million related to defense and US$68
million related to resolution.
For the six months ended June 30, 2007, the Company recorded
US$70 million as asbestos defense and resolution costs, of which
US$42 million related to defense and US$28 million related to
resolution.
The Company, for the three months ended March 31, 2008, recorded
US$56 million as asbestos-related defense and resolution costs,
in which US$14 million were for defense and US$42 million were
for resolution. (Class Action Reporter, May 8, 2008)
The average resolution payment per asbestos claimant and the
rate of new claim filings has fluctuated since the beginning of
2001. The Company's management expects those fluctuations to
continue in the future based upon a number of factors, including
the number and type of claims settled in a particular period,
the jurisdictions in which such claims arose, and the extent to
which any proposed legislative reform related to asbestos
litigation is being considered.
The Company expenses defense costs as incurred. The pretax
impact for defense and resolution costs, net of insurance, was
US$2 million in the second quarter of 2008 (US$25 million in the
second quarter of 2007) and US$16 million in the first six
months of 2008 (US$42 million in the first six months of 2007),
and was reflected in "Cost of sales."
Headquartered in Houston, Union Carbide Corporation, a
subsidiary of The Dow Chemical Company, produces building-block
chemicals like ethylene and propylene that are converted into
polyethylene and polypropylene. The Company also produces
ethylene oxide and ethylene glycol used to make polyester fibers
and antifreeze, respectively.
ASBESTOS LITIGATION: UCC Reports $465M Receivable at June 30
------------------------------------------------------------
Union Carbide Corporation's receivable for insurance recoveries
related to its asbestos liability was US$465 million at June 30,
2008 and US$467 million at Dec. 31, 2007.
At Dec. 31, 2002, the Company increased the receivable for
insurance recoveries related to its asbestos liability to
US$1.35 billion, substantially exhausting its asbestos product
liability coverage.
In September 2003, the Company filed a comprehensive insurance
coverage case, now proceeding in the Supreme Court of the State
of New York, County of New York, seeking to confirm its rights
to insurance for various asbestos claims and to facilitate an
orderly and timely collection of insurance proceeds.
This lawsuit was filed against insurers that are not signatories
to the 1985 Wellington Agreement and do not otherwise have
agreements in place with the Company regarding their asbestos-
related insurance coverage, in order to facilitate an orderly
resolution and collection of such insurance policies and to
resolve issues that the insurance carriers may raise.
Although the lawsuit is continuing, through the end of the
second quarter of 2008, the Company had reached settlements with
several of the carriers involved in this litigation.
At June 30, 2008 and Dec. 31, 2007, all of the receivable for
insurance recoveries was related to insurers that are not
signatories to the Wellington Agreement and do not otherwise
have agreements in place regarding their asbestos-related
insurance coverage.
At June 30, 2008, the Company recorded US$238 million as
receivables for defense and resolution costs, in which US$16
million was for defense and US$222 million was for resolution.
At June 30, 2007, the Company recorded US$271 million as
receivables for defense and resolution costs, in which US$18
million was for defense and US$253 million was for resolution.
Headquartered in Houston, Union Carbide Corporation, a
subsidiary of The Dow Chemical Company, produces building-block
chemicals like ethylene and propylene, which are converted into
polyethylene and polypropylene. The Company also produces
ethylene oxide and ethylene glycol used to make polyester fibers
and antifreeze, respectively.
ASBESTOS LITIGATION: Appeal Over A.P. Green Ruling Still Pending
----------------------------------------------------------------
CNA Financial Corporation says that several insurers' appeal on
the confirmation of A.P. Green's plan of reorganization is still
pending, according to the Company's quarterly report filed with
the Securities and Exchange Commission on July 29, 2008.
On Feb. 13, 2003, the Company announced it had resolved
asbestos-related coverage litigation and claims involving A.P.
Green Industries, A.P. Green Services and Bigelow—Liptak
Corporation.
Under the agreement, the Company is required to pay US$70
million, net of reinsurance recoveries, over a 10-year period
commencing after the final approval of a bankruptcy plan of
reorganization.
The settlement received initial bankruptcy court approval on
Aug. 18, 2003. The debtor's plan of reorganization includes an
injunction to protect the Company from any future claims.
The bankruptcy court issued an opinion on Sept. 24, 2007,
recommending confirmation of that plan. Several insurers have
appealed that ruling.
Headquartered in Chicago, CNA Financial Corporation provides
commercial coverage, with standard offerings as workers'
compensation, general and professional liability, and other
products for businesses and institutions. The Company also sells
specialty insurance including professional liability for
doctors, lawyers, and architects, and vehicle warranty service
contracts. Holding company Loews owns about 90 percent of the
Company.
ASBESTOS LITIGATION: CNA Fin'l. Engaged in Keasbey Coverage Case
----------------------------------------------------------------
CNA Financial Corporation is still engaged in insurance coverage
litigation in New York State Court, filed in 2003, with a
defendant class of underlying plaintiffs who have asbestos
bodily injury claims against the former Robert A. Keasbey
Company.
The case is styled Continental Casualty Co. v. Employers Ins. of
Wausau et al., No. 601037/03 (N.Y. County).
Keasbey, a currently dissolved corporation, was a seller and
installer of asbestos-containing insulation products in New York
and New Jersey. Thousands of plaintiffs have filed bodily injury
claims against Keasbey.
However, under New York court rules, asbestos claims are not
cognizable unless they meet certain minimum medical impairment
standards. Since 2002, when these court rules were adopted, a
small portion of those claims have met medical impairment
criteria under New York court rules and as to the remaining
claims, Keasbey's involvement at a number of work sites is a
highly contested issue.
The Company issued Keasbey primary policies for 1970-1987 and
excess policies for 1971-1978. The Company has paid an amount
substantially equal to the policies' aggregate limits for
products and completed operations claims in the confirmed CNA
policies.
Claimants against Keasbey allege that the Company owes coverage
under sections of the policies not subject to the aggregate
limits, an allegation the Company contests in the lawsuit. In
the litigation, the Company and the claimants seek declaratory
relief as to the interpretation of various policy provisions.
On May 8, 2007, the Court in the first phase of the trial held
that all of the Company's primary policy products aggregates
were exhausted and that past products liability claims could not
be recharacterized as operations claims.
The Court also found that while operations claims would not be
subject to products aggregates, those claims could be made only
against the policies in effect when the claimants were exposed
to asbestos from Keasbey operations.
These holdings limit the Company's exposure to those instances
where Keasbey used asbestos in operations between 1970 and 1987.
Keasbey largely ceased using asbestos in its operations in the
early 1970s.
The Company noticed an appeal to the Appellate Division to
challenge certain aspects of the Court's ruling. Other insurer
parties to the litigation also filed separate notices of appeal
to the Court's ruling. The appeal was fully briefed and was
argued on Dec. 6, 2007.
Numerous legal issues remain to be resolved on appeal with
respect to coverage that are critical to the final result.
Headquartered in Chicago, CNA Financial Corporation provides
commercial coverage, with standard offerings as workers'
compensation, general and professional liability, and other
products for businesses and institutions. The Company also sells
specialty insurance including professional liability for
doctors, lawyers, and architects, and vehicle warranty service
contracts. Holding company Loews Corporation owns about 90
percent of the Company.
ASBESTOS LITIGATION: CNA Engages in Burns & Roe Lawsuit in N.J.
---------------------------------------------------------------
CNA Financial Corporation continues to be engaged in insurance
coverage disputes related to asbestos bodily injury claims
against a bankrupt insured, Burns & Roe Enterprises, Inc.
These disputes are part of coverage litigation (stayed in view
of the bankruptcy) and an adversary proceeding in In re: Burns &
Roe Enterprises, Inc., pending in the U.S. Bankruptcy Court for
the District of New Jersey, No. 00-41610.
Burns & Roe provided engineering and related services in
connection with construction projects. At the time of its
bankruptcy filing, on Dec. 4, 2000, Burns & Roe asserted that it
faced about 11,000 claims alleging bodily injury resulting from
exposure to asbestos as a result of construction projects in
which Burns & Roe was involved.
The Company allegedly provided primary liability coverage to
Burns & Roe from 1956-1969 and 1971-1974, along with certain
project-specific policies from 1964-1970.
In September 2007, the Company entered into an agreement with
Burns & Roe, the Official Committee of Unsecured Creditors
appointed by the Bankruptcy Court and the Future Claims
Representative (Addendum), which provides that claims allegedly
covered by CNA policies will be adjudicated in the tort system,
with any coverage disputes related to those claims to be decided
in coverage litigation.
With the approval of the Bankruptcy Court, Burns & Roe included
the Addendum as part of its Fourth Amended Plan, which was filed
on June 9, 2008 and which will be the subject of a later
confirmation hearing.
Headquartered in Chicago, CNA Financial Corporation provides
commercial coverage, with standard offerings as workers'
compensation, general and professional liability, and other
products for businesses and institutions. The Company also sells
specialty insurance including professional liability for
doctors, lawyers, and architects, and vehicle warranty service
contracts. Holding company Loews Corporation owns about 90
percent of the Company.
ASBESTOS LITIGATION: Texas Court Actions Ongoing v. CNA Fin'l.
----------------------------------------------------------------
CNA Financial Corporation and numerous other insurers continue
to face lawsuits filed in Texas courts, according to the
Company's quarterly report filed with the Securities and
Exchange Commission on July 29, 2008.
Beginning in 2002, about 80 lawsuits were filed in Texas against
two CNA companies and numerous other insurers and non-insurer
corporate defendants asserting liability for failing to warn of
the dangers of asbestos (e.g. Boson v. Union Carbide Corp.,
(Nueces County, Tex.)).
During 2003, several of the Texas suits were dismissed and while
certain of the Texas courts' rulings were appealed, plaintiffs
later dismissed their appeals.
A different Texas court, however, denied similar motions seeking
dismissal. After that court denied a related challenge to
jurisdiction, the insurers transferred the case to a state
multi-district litigation court in Harris County charged with
handling asbestos cases.
In February 2006, the insurers petitioned the appellate court in
Houston for an order of mandamus, requiring the multi-district
litigation court to dismiss the case on jurisdictional and
substantive grounds.
On Feb. 29, 2008, the appellate court denied the insurers'
mandamus petition on procedural grounds, but did not reach a
decision on the merits of the petition. Instead, the appellate
court allowed to stand the multi-district litigation court's
determination that the case remained on its inactive docket and
that no further action can be taken unless qualifying reports
are filed or the filing of such reports is waived.
With respect to the cases that are still pending in Texas, in
June 2008, plaintiffs in the only active case dropped the
remaining CNA company from that suit, leaving only inactive
cases against CNA companies.
Headquartered in Chicago, CNA Financial Corporation provides
commercial coverage, with standard offerings as workers'
compensation, general and professional liability, and other
products for businesses and institutions. The Company also sells
specialty insurance including professional liability for
doctors, lawyers, and architects, and vehicle warranty service
contracts. Holding company Loews Corporation owns about 90
percent of the Company.
ASBESTOS LITIGATION: W. R. Grace Case v. CNA Fin'l. Still Stayed
----------------------------------------------------------------
A lawsuit filed by employees of W. R. Grace & Co. against CNA
Financial Corporation and other defendants is still stayed.
On March 22, 2002, a direct action was filed in Montana
(Pennock, et al. v. Maryland Casualty, et al. First Judicial
District Court of Lewis & Clark County, Mont.) by eight
individual plaintiffs (all Grace employees) and their spouses
against the Company, Maryland Casualty and the State of Montana.
This action alleges that the carriers failed to warn of or
otherwise protect Grace employees from the dangers of asbestos
at a Grace vermiculite mining facility in Libby, Mont.
On April 7, 2008, W.R. Grace announced a settlement in principle
with the asbestos personal injury claimants committee subject to
confirmation of a plan of reorganization by the bankruptcy
court.
It is unknown when the confirmation hearing might take place.
The settlement in principle with the asbestos claimants has no
present impact on the stay currently imposed on the Montana
direct action and with respect to those claims, numerous factual
and legal issues remain to be resolved that are critical to the
final result.
Headquartered in Chicago, CNA Financial Corporation provides
commercial coverage, with standard offerings as workers'
compensation, general and professional liability, and other
products for businesses and institutions. The Company also sells
specialty insurance including professional liability for
doctors, lawyers, and architects, and vehicle warranty service
contracts. Holding company Loews owns about 90 percent of the
Company.
ASBESTOS LITIGATION: CNA Reserves $1.229B for Claims at June 30
---------------------------------------------------------------
CNA Financial Corporation's net asbestos reserves were
US$1.229 billion at June 30, 2008, compared with US$1.322
billion at Dec. 31, 2007, according to the Company's quarterly
report filed with the Securities and Exchange Commission on July
29, 2008.
The Company's reserves for asbestos claim and claim adjustment
were a net of US$1.275 billion as of March 31, 2008. (Class
Action Reporter, May 2, 2008)
At June 30, 2008, the Company had 1,241 policyholders and
recorded US$99 million as net paid losses in 2008.
At June 30, 2008, the Company had 1,289 policyholders and
recorded US$136 million as net paid losses in 2007.
The Company has resolved a number of its large asbestos accounts
by negotiating settlement agreements. Structured settlement
agreements provide for payments over multiple years as set forth
in each individual agreement.
In 1985, 47 asbestos producers and their insurers, including The
Continental Insurance Company, executed the Wellington
Agreement. The agreement was intended to resolve all issues and
litigation related to coverage for asbestos exposures.
Under this agreement, signatory insurers committed scheduled
policy limits and made the limits available to pay asbestos
claims based upon coverage blocks designated by the
policyholders in 1985, subject to extension by policyholders.
CIC was a signatory insurer to the Wellington Agreement.
The Company has also used coverage in place agreements to
resolve large asbestos exposures.
The Company categorizes active asbestos accounts as large or
small accounts. It defines a large account as an active account
with more than US$100,000 of cumulative paid losses. The Company
has made resolving large accounts a significant management
priority.
Small accounts are defined as active accounts with US$100,000 or
less of cumulative paid losses. About 80 percent and 81 percent
of the Company's total active asbestos accounts are classified
as small accounts at June 30, 2008 and Dec. 31, 2007,
respectively.
Headquartered in Chicago, CNA Financial Corporation provides
commercial coverage, with standard offerings as workers'
compensation, general and professional liability, and other
products for businesses and institutions. The Company also sells
specialty insurance including professional liability for
doctors, lawyers, and architects, and vehicle warranty service
contracts. Holding company Loews owns about 90 percent of the
Company.
ASBESTOS LITIGATION: Appeals Court Rules v. Purdy in DOE Action
----------------------------------------------------------------
The Court of Appeals of Washington, Division 3, upheld the
ruling of the Yakima Superior Court, which favored the U.S.
Department of Energy and denied Marcella Purdy-Peterson spousal
benefits over the death of her husband Raymond Purdy.
The case is part of the litigation In re Raymond Purdy,
Deceased, BIIA Docket No. 05 20374, Claim No. W-464308. The case
is styled Marcella Purdy-Peterson, Appellant, v. Department of
Labor and Industries for the State of Washington, Respondent.
Judges Korsmo, Kulik, and Brown entered judgment in Case No.
26413-1-III on July 31, 2008.
Mr. Purdy worked as an insulation installer at Rockwell Hanford
Operations with the U.S. Department of Energy. He filed a claim
for industrial insurance benefits in September 1982.
The Department of Labor and Industries on Feb. 21, 1985, allowed
the claim for "pleural changes," which were "compatible with
exposure to asbestos." The claim was closed Nov. 13, 1989, with
the Department accepting responsibility for asbestos-related
conditions, but denying responsibility for cigarette smoking
damage.
Mr. Purdy also was advised he could seek to reopen his claim if
his condition worsened. He died on Feb. 19, 2001. His death
certificate listed the cause of death as Sclerosing Cholangitis.
The death certificate also listed other contributing conditions
to his death, including asbestosis and coronary artery disease.
Mr. Purdy's widow remarried Sept. 7, 2002. She filed for spousal
benefits with the Department of Labor and Industries on May 6,
2005, based on her late husband's exposure to asbestos during
his work with DOE.
The parties stipulated to various facts before the agency. Among
those stipulated facts were that Mrs. Purdy-Peterson had been
told by her husband that he had been exposed to asbestos while
working for DOE, that she believed the successful claim for
benefits during Mr. Purdy's life was for asbestosis, and that
she filed her claim for spousal benefits based on the same
exposure claim for which her husband had received benefits.
The parties also agreed that Mrs. Purdy-Peterson never received
written notice from a physician or the Department of Labor and
Industries concerning her right to file a claim within two years
of Mr. Purdy's death.
The Department denied benefits in a split decision, with the
majority finding that the claim was untimely due to the two year
statute of limitations.
Mrs. Purdy-Peterson then appealed to superior court. The court
also denied the claim, concluding that Mrs. Purdy-Peterson knew
that asbestosis was a contributing cause of Mr. Purdy's death
and that he had contracted the disease while working for DOE.
Based on that knowledge, the court determined that the two year
statute of limitations applied from the time of Mr. Purdy's
death and denied the claim as untimely. Mrs. Purdy-Peterson then
appealed to this court.
The two year limitation period had long expired before the
current claim for benefits was filed. The claim came too late.
Accordingly, the Appeals Court agreed with the rulings that
dismissed the untimely claim for benefits. The judgment was
affirmed.
William D. Hochberg, Esq., in Edmonds, Wash., represented
Marcella Purdy-Peterson.
Lawrence Edward Mann, Esq., of William Alexander Masters Wallace
Klor Mann PC, in Lake Oswego, Ore., John R. Wasberg, Esq., of
the Ofc. of the Atty. Gen., Seattle, represented the Department
of Labor and Industries for the State of Washington.
ASBESTOS LITIGATION: Safeco Records $13.6M Increase for Asbestos
----------------------------------------------------------------
Safeco Corporation, in the first six months of 2008, saw a
US$13.6 million increase in asbestos primarily due to
unfavorable settlement activity on large claims, according to
the Company's latest quarterly report filed with the Securities
and Exchange Commission.
In the first six months of 2007, the Company saw a US$11.5
million increase in asbestos reserves related to its
participation in reinsurance pools.
Headquartered in Seattle, Safeco Corporation sells property and
casualty insurance to drivers, homeowners and small and mid-
sized businesses. The Company also sells Surety bonds to
contractors and businesses.
ASBESTOS LITIGATION: 11,202 Cases Pending v. RPM Units at May 31
----------------------------------------------------------------
RPM International, Inc.'s subsidiaries faced 11,202 active
asbestos cases as of May 31, 2008, compared with 10,824 cases as
of May 31, 2007, according to the Company's annual report filed
with the Securities and Exchange Commission on July 30, 2008.
The Company's subsidiaries faced a total of 11,350 active
asbestos cases as of Feb. 29, 2008, compared with 10,846 cases
as of Feb. 28, 2007. (Class Action Reporter, April 11, 2008)
Certain of the Company's wholly owned subsidiaries, principally
Bondex International, Inc., are defendants in various asbestos-
related bodily injury lawsuits filed in various state courts
with the vast majority of current claims pending in six states:
Ohio, Texas, Florida, Mississippi, Maryland, and Illinois.
These cases generally seek unspecified damages for asbestos-
related diseases based on alleged exposures to asbestos-
containing products previously manufactured by the Company's
subsidiaries or others.
For the fourth quarter ended May 31, 2008, the subsidiaries
secured dismissals and settlements of 664 cases and made total
payments of US$15 million, which included defense-related
payments paid during the current quarter of US$7.7 million.
For the comparable period ended May 31, 2007, dismissals and
settlements covered 608 cases and total payments were US$18.6
million, which included defense-related payments paid during the
quarter of US$7.4 million.
For the year ended May 31, 2008, the subsidiaries secured
dismissals and settlements of 1,546 cases and made total
payments of US$82.6 million, which included defense-related
payments paid during the current year of US$39.7 million.
For the comparable period ended May 31, 2007, dismissals and
settlements covered 1,900 cases and total payments were US$67
million, which included defense-related payments paid during the
year of US$27.7 million.
The Company estimates that its subsidiaries have spent about
US$13 million more on defense than they otherwise would have
spent due to these added transitional expenses, which were
completed during the quarter ended Feb. 29, 2008. Excluding
these added year-to-date transitional payments, the
subsidiaries' ongoing core defense expenditures would be in line
with comparable prior-year levels.
Excluding defense-related payments, the average payment made to
settle or dismiss a case was about US$11,000 for the quarter
ended May 31, 2008 (US$18,000 for the quarters ended May 31,
2007), and US$28,000 for the year ended May 31, 2008 (US$21,000
for the year ended May 31, 2007).
Headquartered in Medina, Ohio, RPM International Inc. and its
units produce specialty coatings and sealants. The Company's
industrial products include roofing systems, sealants, corrosion
control coatings, flooring coatings and specialty chemicals. The
Company's consumer products are used by professionals and do-it-
yourselfers for home maintenance and improvement, boat repair
and maintenance, and by hobbyists.
ASBESTOS LITIGATION: Navigators Has $18.63M Reserves at June 30
----------------------------------------------------------------
The Navigators Group, Inc.'s net loss and loss adjustment
expense net reserves for its asbestos exposures were
US$18,637,000 for the six months ended June 30, 2008 and
US$16,717,000 for the year ended Dec. 31, 2007.
The Company's gross loss and LAE gross reserves for its asbestos
exposures were US$26,026,000 for the six months ended June 30,
2008 and US$23,194,000 for the year ended Dec. 31, 2007.
The Company's reserves for net loss and LAE for its asbestos
exposures were US$16,796,000 in the three months ended March 31,
2008. Its reserves for gross loss and LAE expenses for its
asbestos exposures were US$23,280,000 in the three months ended
March 31, 2008. (Class Action Reporter, May 9, 2008)
The reserves for asbestos exposures at June 30, 2008 are for:
-- One large settled claim for excess insurance policy
limits exposed to a class action suit against an
insured involved in the manufacturing or distribution
of asbestos products being paid over several years (two
other large settled claims were fully paid in 2007);
-- Other insureds not directly involved in the
manufacturing or distribution of asbestos products, but
that have more than incidental asbestos exposure for
their purchase or use of products that contained
asbestos; and
-- Attritional asbestos claims that could be expected to
occur over time.
Substantially all of the Company's asbestos liability reserves
are included in its marine loss reserves.
Reserves for losses and LAE related to asbestos exposures
increased US$2.4 million (gross) and US$1.3 million (net) in the
2008 second quarter as a result of an assumed loss portfolio
transaction with a former pool member.
At June 30, 2008, the ceded asbestos paid and unpaid
recoverables were US$10.6 million compared with US$10.5 million
at Dec. 31, 2007.
Headquartered in New York, The Navigators Group, Inc.'s
subsidiaries write marine, liability, and other lines of
business, primarily in the U.S. and the U.K. Navigators
Insurance and Navigators Underwriting Agency, which is a member
of Lloyd's of London, write ocean and marine insurance including
hull, energy, and cargo insurance, as well as property insurance
for onshore energy concerns.
ASBESTOS LITIGATION: Eastman Chemical Still Has Exposure Claims
---------------------------------------------------------------
Eastman Chemical Company continues to be a defendant in lawsuits
filed in various state courts in which plaintiffs have alleged
injury due to exposure to asbestos at the Company's
manufacturing sites.
More recently, certain plaintiffs have claimed exposure to an
asbestos-containing plastic, which the Company manufactured in
limited amounts between the mid-1960s and the early 1970s.
To date, the Company has obtained dismissals or settlements of
its asbestos-related lawsuits.
The Company has also obtained insurance coverage that applies to
a portion of certain of the its defense costs and payments of
settlements or judgments in connection with asbestos-related
lawsuits.
Headquartered in Kingsport, Tenn., Eastman Chemical Company
produces chemicals, fibers, and plastics. Among the Company's
operating segments are its CASPI (coatings, adhesives, specialty
polymers, and inks), Specialty Plastics (engineering polymers),
and Fibers (acetate tow and textile fibers) units. The Company's
products go into items like food and medical packaging, films,
and toothbrushes.
ASBESTOS LITIGATION: Rogers Reports $19.3M Liability at June 29
---------------------------------------------------------------
Rogers Corporation's long-term asbestos-related liabilities
remained at US$19,341,000 as of June 29, 2008, according to a
Company report, on Form 8-K, filed with the Securities and
Exchange Commission on July 30, 2008.
The Company's long-term asbestos-related liabilities were
US$19,341,000 as of March 30, 2008, the same amount recorded at
Dec. 30, 2007. (Class Action Reporter, May 9, 2008)
The Company's current asbestos-related liabilities were
US$4,303,000 as of June 29, 2008, the same as for the period
ended Dec. 30, 2007.
The Company's long-term asbestos-related insurance receivables
were US$19,149,000 as of June 29, 2008, the same as for the
period ended Dec. 30, 2007.
The Company's current asbestos-related insurance receivables
were US$4,303,000 as of June 29, 2008, the same as for the
period ended Dec. 30, 2007.
Headquartered in Rogers, Conn., Rogers Corporation develops and
makes high performance, specialty-material-based products for
applications in diverse markets including: portable
communications, communications infrastructure, computer and
office equipment, consumer products, ground transportation,
aerospace and defense. The Company operates manufacturing
facilities in the U.S. (Arizona, Connecticut and Illinois),
Europe (Ghent, Belgium) and Asia (Suzhou, China).
ASBESTOS LITIGATION: Sealed Air Has $689.5M Liability at June 30
----------------------------------------------------------------
Sealed Air Corporation's current asbestos settlement liability
and related accrued interest was US$689.5 million as of June 30,
2008 and US$670.9 million as of Dec. 31, 2007, according to a
Company report, on Form 8-K, filed with the Securities and
Exchange Commission on July 30, 2008.
The Company's current asbestos settlement liability and related
accrued interest amounted to US$680.1 million as of March 31,
2008. (Class Action Reporter, May 9, 2008)
Headquartered in Elmwood Park, N.J., Sealed Air Corporation
manufactures packaging and performance-based materials and
equipment systems that serve food, industrial, medical, and
consumer applications. Operating in 51 countries, the Company's
international reach generated revenue of US$4.7 billion in 2007.
ASBESTOS LITIGATION: Lincoln Faces Claims with 27,934 Plaintiffs
----------------------------------------------------------------
Lincoln Electric Holdings, Inc., at June 30, 2008, was a co-
defendant in cases alleging asbestos induced illness involving
claims by about 27,934 plaintiffs, which is a net decrease of
386 claims from those previously reported.
In each instance, the Company is one of a large number of
defendants. The asbestos claimants seek compensatory and
punitive damages, in most cases for unspecified sums.
Since Jan. 1, 1995, the Company has been a co-defendant in other
similar cases that have been resolved as follows: 27,446 of
those claims were dismissed, 10 were tried to defense verdicts,
four were tried to plaintiff verdicts, one was resolved by
agreement for an immaterial amount and 549 were decided in favor
of the Company following summary judgment motions.
The Company, at March 31, 2008, was a co-defendant in cases
alleging asbestos induced illness involving claims by about
28,320 plaintiffs, which was a net decrease of 42 claims from
those previously reported. (Class Action Reporter, May 2, 2008)
Headquartered in Cleveland, Ohio, Lincoln Electric Holdings,
Inc. designs and manufactures arc welding and cutting products,
particularly arc welding equipment, consumable welding products
and other welding and cutting products.
ASBESTOS LITIGATION: Goodyear Faces 118,500 Claims at June 30
-------------------------------------------------------------
The Goodyear Tire & Rubber Company had 118,500 pending asbestos
claims during the six months ended June 30, 2008, compared with
117,400 claims during the year ended Dec. 31, 2007, according to
the Company's quarterly report filed with the Securities and
Exchange Commission on July 31, 2008.
Asbestos-related claims against the Company rose to 118,000
during the three months ended March 31, 2008. (Class Action
Reporter, May 2, 2008)
During the six months ended June 30, 2008, the Company recorded
2,400 new claims filed and 1,300 claims settled or dismissed.
Asbestos payments were US$9 million.
During the year ended Dec. 31, 2007, the Company recorded 2,400
new claims filed, 9,000 claims settled or dismissed. Asbestos
payments were US$22 million.
The Company faces lawsuits alleging various asbestos-related
personal injuries purported to result from alleged exposure to
certain asbestos products manufactured by the Company or present
in certain of its facilities. These lawsuits have been brought
against multiple defendants in state and Federal courts.
To date, the Company has disposed of about 50,000 claims by
defending and obtaining the dismissal thereof or by entering
into a settlement. The sum of the Company's accrued asbestos-
related liability and gross payments to date, including legal
costs, totaled about US$304 million through June 30, 2008 and
US$297 million through Dec. 31, 2007.
The Company had recorded liabilities for both asserted and
unasserted claims, inclusive of defense costs, totaling US$124
million at June 30, 2008 and US$127 million at Dec. 31, 2007.
The portion of the liability associated with unasserted asbestos
claims was US$74 million at June 30, 2008 and US$76 million at
Dec. 31, 2007.
The Company's liability with respect to asserted claims and
related defense costs was US$50 million at June 30, 2008 and
US$51 million at Dec. 31, 2007.
At June 30, 2008, the Company estimates that it is reasonably
possible that its gross liabilities could exceed its recorded
reserve by up to US$35 million, about 50 percent of which would
be recoverable by the Company's accessible policy limits.
As of June 30, 2008, the Company had recorded a receivable
related to asbestos claims of US$69 million (US$71 million as of
Dec. 31, 2007) and the Company expects that about 50 percent of
asbestos claim related losses would be recoverable up to the
Company's accessible policy limits through the period covered by
the estimated liability.
Of this amount, US$6 million at June 30, 2008 (US$8 million at
Dec. 31, 2007) were included in Current Assets as part of
Accounts Receivable.
The Company said that at June 30, 2008, it had at least US$180
million in aggregate limits of excess level policies potentially
applicable to indemnity payments for asbestos products claims. A
portion of the availability of the excess level policies is
included in the US$69 million insurance receivable recorded at
June 30, 2008.
The Company also had about US$15 million in aggregate limits for
products claims, as well as coverage for premise claims on a per
occurrence basis and defense costs available with the Company's
primary insurance carriers through coverage-in-place agreements
at June 30, 2008.
Headquartered in Akron, Ohio, The Goodyear Tire & Rubber Company
manufactures tires in 64 facilities in 25 countries, including
the United States. The Company operates through four segments:
North American Tire; Europe, Middle East and Africa Tire; Latin
American Tire; and Asia Pacific Tire.
ASBESTOS LITIGATION: TRW Auto Units Subject to Exposure Actions
---------------------------------------------------------------
Certain of TRW Automotive Holdings Corp.'s subsidiaries continue
to be subject to asbestos-related claims, according to the
Company's quarterly report filed with the Securities and
Exchange Commission on July 31, 2008.
In general, these claims seek damages for illnesses alleged to
have resulted from exposure to asbestos used in certain
components sold by the Company's subsidiaries.
Management says it believes that the majority of the claimants
were assembly workers at the major U.S. automobile
manufacturers. The vast majority of these claims name as
defendants numerous manufacturers and suppliers of a wide
variety of products allegedly containing asbestos.
Management believes that, to the extent any of the products sold
by the Company's subsidiaries and at issue in these cases
contained asbestos, the asbestos was encapsulated. Management
believes that a small proportion of the claimants has or will
ever develop any asbestos-related illness.
Neither settlement costs in connection with asbestos claims nor
annual legal fees to defend these claims have been material in
the past. Many of these cases have been dismissed without any
payment whatsoever.
Moreover, there is significant insurance coverage with solvent
carriers with respect to these claims.
Headquartered in Livonia, Mich., TRW Automotive Holdings Corp.
supplies automotive systems, modules and components to global
automotive original equipment manufacturers (OEMs) and related
aftermarkets.
ASBESTOS LITIGATION: Cytec Ind. Faces 8,200 Claims at June 30
-------------------------------------------------------------
Cytec Industries Inc. continues to face 8,200 asbestos claims in
the six months ended June 30, 2008, the same as for the year
ended Dec. 31, 2007, according to the Company's quarterly report
filed with the Securities and Exchange Commission on July 31,
2008.
In the six months ended June 30, 2008, the Company recorded 100
closed claims and 100 opened claims. In the year ended Dec. 31,
2007, the Company recorded 700 closed claims and 300 opened
claims.
The aggregate self-insured and insured contingent liability was
US$70.7 million as of June 30, 2008, compared with US$70.1
million as of Dec. 31, 2007.
The related insurance recovery receivable for the liability as
well as claims for past payments was US$37.2 million at June 30,
2008 and US$37.6 million at Dec. 31, 2007.
The asbestos liability included in the above amounts at June 30,
2008 was US$53.8 million (US$53.9 million at Dec. 31, 2007). The
insurance receivable related to the liability as well as claims
for past payments was US$35.4 million at June 30, 2008 and
US$35.6 million at Dec. 31, 2007.
Headquartered in West Paterson, N.J., Cytec Industries Inc.
produces chemicals from which it makes engineered materials
(composites and adhesives for the aerospace industry), specialty
chemicals (resins and coatings for metal, plastic, and wood),
and additives used in treating water and in industrial
processes. The Company also sells its building-block chemicals
(acrylonitrile, melamine, and sulfuric acid) to third parties.
ASBESTOS LITIGATION: Injury Lawsuits Still Ongoing v. Flowserve
---------------------------------------------------------------
Flowserve Corporation is still a defendant in pending lawsuits
that seek to recover damages for personal injury allegedly
caused by exposure to asbestos-containing products manufactured
and distributed by the Company in the past.
While the aggregate number of asbestos-related claims against
the Company has declined in recent years, there can be no
assurance that this trend will continue.
Asbestos-containing materials incorporated into any such
products was primarily encapsulated and used as components of
process equipment. The Company says it does not believe that any
significant emission of asbestos-containing fibers occurred
during the use of this equipment.
The Company said it believes that a high percentage of the
claims are covered by applicable insurance or indemnities from
other companies.
Headquartered in Irving, Tex., Flowserve Corporation provides
pumps, valves, seals, automation and aftermarket services in
support of global infrastructure industries, including oil and
gas, chemical, power generation and water management, as well as
general industrial markets where the Company's products add
value.
ASBESTOS LITIGATION: TODCO Lawsuit Ongoing v. Hercules Offshore
---------------------------------------------------------------
Hercules Offshore, Inc. still faces an asbestos-related lawsuit
from TODCO, which the Company acquired in July 2007, according
to the Company's quarterly report filed with the Securities and
Exchange Commission on July 31, 2008.
The suit is styled Robert E. Aaron et al. vs. Phillips 66
Company et al. Circuit Court, Second Judicial District, Jones
County, Miss.
This is the case name used to refer to several cases that have
been filed in the Circuit Courts of the State of Mississippi
involving 768 persons that allege personal injury or whose heirs
claim their deaths arose out of asbestos exposure in the course
of their employment by the defendants between 1965 and 2002.
The complaints name as defendants certain of TODCO's
subsidiaries and certain subsidiaries of TODCO's former parent
to whom TODCO may owe indemnity, and other unaffiliated
defendant companies, including companies that allegedly
manufactured drilling-related products containing asbestos that
are the subject of the complaints.
The number of unaffiliated defendant companies involved in each
complaint ranges from about 20 to 70. The complaints allege that
the defendant drilling contractors used asbestos-containing
products in offshore drilling operations, land based drilling
operations and in drilling structures, drilling rigs, vessels
and other equipment and assert claims based on negligence and
strict liability, and claims authorized under the Jones Act.
The plaintiffs seek awards of unspecified compensatory and
punitive damages. All of these cases were assigned to a special
master who has approved a form of questionnaire to be completed
by plaintiffs so that claims made would be properly served
against specific defendants.
As of July 31, 2008, about 700 questionnaires were returned and
the remaining plaintiffs, who did not submit a questionnaire
reply, have had their suits dismissed without prejudice. Of the
respondents, about 100 shared periods of employment by TODCO and
its former parent which could lead to claims against either
company, even though many of these plaintiffs did not state in
their questionnaire answers that the employment actually
involved exposure to asbestos.
After providing the questionnaire, each plaintiff was further
required to file a separate and individual amended complaint
naming only those defendants against whom they had a direct
claim as identified in the questionnaire answers. Defendants not
identified in the amended complaints were dismissed from the
plaintiffs' litigation.
To date, three plaintiffs named TODCO as a defendant in their
amended complaints.
The Company has not determined which entity would be responsible
for such claims under the Master Separation Agreement between
TODCO and its former parent.
Headquartered in Houston, Hercules Offshore, Inc. provides
shallow-water drilling and liftboat services to energy companies
and independent oil and natural gas exploration and production
companies.
ASBESTOS LITIGATION: Corning Inc. Facing 10,350 Injury Lawsuits
---------------------------------------------------------------
Corning Incorporated is named in about 10,350 cases (about
41,600 claims) alleging injuries from asbestos, according to the
Company's quarterly report filed with the Securities and
Exchange Commission on July 30, 2008.
The Company asserts that these cases have been covered by
insurance without material impact to the Company to date.
The Company and PPG Industries, Inc. each own 50 percent of the
capital stock of Pittsburgh Corning Corporation (PCC). Over a
period of more than two decades, PCC and several other
defendants have been named in numerous lawsuits involving claims
alleging personal injury from exposure to asbestos.
On April 16, 2000, PCC filed for Chapter 11 reorganization in
the U.S. Bankruptcy Court for the Western District of
Pennsylvania. At the time PCC filed for bankruptcy protection,
there were about 12,400 claims pending against the Company in
state court lawsuits alleging various theories of liability
based on exposure to PCC's asbestos products and typically
requesting monetary damages in excess of US$1 million per claim.
Several of the Company's insurance carriers have filed a legal
proceeding concerning the extent of any insurance coverage for
these claims.
On March 28, 2003, the Company announced that it had reached
agreement with the representatives of asbestos claimants for the
settlement of all current and future asbestos claims against it
and PCC, which might arise from PCC products or operations (the
2003 Plan).
The 2003 Plan would have required the Company to relinquish its
equity interest in PCC, contribute its equity interest in
Pittsburgh Corning Europe N.V. (PCE), a Belgian corporation,
contribute 25 million shares of Corning common stock, and pay a
total of US$140 million in six annual installments (present
value US$131 million at March 2003), beginning one year after
the plan's effective date, with 5.5 percent interest from June
2004. In addition, the 2003 Plan provided that the Company would
assign certain insurance policy proceeds from its primary
insurance and a portion of its excess insurance.
On Dec. 21, 2006, the Bankruptcy Court issued an order denying
confirmation of the 2003 Plan for reasons it set out in a
memorandum opinion. Several parties, the Company, filed motions
for reconsideration. These motions were argued on March 5, 2007,
and the Bankruptcy Court reserved decision.
On Jan. 10, 2008, some of the parties in the proceeding advised
the Bankruptcy Court that they had made substantial progress on
an amended plan of reorganization (the Amended PCC Plan) that
resolved issues raised by the Court in denying the confirmation
of the 2003 Plan and that would therefore make it unnecessary
for the Bankruptcy Court to decide the motion for
reconsideration.
On March 27, 2008 and May 22, 2008, the parties further informed
the Bankruptcy Court on the progress toward the Amended PCC
Plan. The Bankruptcy Court ordered the parties to submit the
Amended PCC Plan on July 25, 2008 and on that date the parties
informed the Court that they were making progress on the Amended
PCC Plan and anticipated filing such plan on Aug. 1, 2008.
The liability for the Amended PCC Plan and the non-PCC asbestos
claims was estimated to be US$684 million at June 30, 2008,
compared with an estimate of liability under the original 2003
Plan of US$1.002 billion at Dec. 31, 2007.
In the first quarter of 2008, the Company recorded a credit to
asbestos settlement expense of US$327 million as a result of the
increase in likelihood of a settlement under the Amended PCC
Plan and a corresponding decrease in the likelihood of a
settlement under the 2003 Plan. In the second quarter of 2008,
the Company recorded a charge of US$9 million to reflect the
change in value of the estimated liability under an Amended PCC
Plan.
In the three and six months ended June 30, 2007, the Company
recorded asbestos settlement expense under the terms of the 2003
Plan of US$76 million and US$186 million, respectively, to
adjust the estimated fair value of the components of the
proposed asbestos settlement at that time.
Of the US$1.002 billion estimated liability at Dec. 31, 2007
based on the 2003 Plan, US$833 million was included in other
accrued liabilities as a current liability, and US$169 million
was recorded within the other liabilities component in the
Company's consolidated balance sheets.
Headquartered in Corning, N.Y., Corning Incorporated makes
fiber-optic cable. Once known for kitchenware and lab products,
the Company now provides optical fiber and cable products and
communications network equipment. Its display technologies unit
produces glass substrates for flat-panel displays.
ASBESTOS LITIGATION: CBS, Others Facing Lawsuits Over CSI Toys
--------------------------------------------------------------
CBS Broadcasting, Inc. (a CBS Corporation subsidiary), Planet
Toys, Inc. and several retailers are facing lawsuits over
asbestos contamination of a toy based on the CBS series "CSI:
Crime Scene Investigation," Asbestos.com reports.
According to tests commissioned by the Asbestos Disease
Awareness Organization, the CSI Fingerprint Examination Kit
contains tremolite asbestos, which is considered one of the most
dangerous forms of asbestos.
Brought forth by Public Justice and filed in California (one in
the Los Angeles Superior Court, one in state court), the suits
claim "substantial quantities of tremolite asbestos" were
discovered in ADAO's tests.
Since the CSI Fingerprint Examination Kit (as well as two other
CSI-themed kits) was sold throughout the United States, the suit
is being brought on behalf of a nationwide class of consumers
who bought or somehow acquired the kits.
The suit was filed in response to the fact that CBS and Planet
Toys have failed to take appropriate action regarding the
asbestos contamination.
The complaint claims that both CBS and Planet Toys were
negligent concerning quality control efforts, which, if done
properly, could have prevented hazardous asbestos exposure among
children and families.
According to ADAO, the defendants were negligent to inform
consumers that the toys contained asbestos, which is required
under state law (the second lawsuit).
Planet Toys claims their multiple tests revealed no asbestos
contamination whatsoever. However, the company still recalled
the toy and placed a stop sale on the kits until further
information could address the discrepancy between the test
results.
Planet Toys did admit some of the kits were manufactured in
China. In 2007, millions of toys from China were recalled due to
lead paint contamination and number of other hazards.
The plaintiffs seek a court order to put a halt to the sale of
the kits, unless they are packaged with a warning.
The plaintiffs also want the defendants to refund consumers, pay
for testing of kits that have already been opened, as well as
pay for any relating medical treatment for the consumers exposed
to asbestos.
ASBESTOS LITIGATION: Cape Worker's Death Linked to Exposure
-----------------------------------------------------------
An inquest at Pembrokeshire, Wales, linked the death of 81-year-
old Marion Elizabeth Adams to exposure to asbestos, the Western
Telegraph reports.
During her early 20s, Mrs. Adams worked for a short time with
asbestos, which her family suspects contributed to her death,
the inquest heard on July 31, 2008.
Mrs. Adams worked at the Cape Asbestos Factory, Barking,
England, but left after three weeks because the atmosphere on
the assembly line was uncomfortable and dusty.
Mrs. Adams was diagnosed with asbestos tumors on her left lung
in May 2007 and was admitted to Withybush Hospital on April 9,
2008 when her health deteriorated.
Mrs. Adams died on April 18, 2008.
Pembrokeshire coroner Michael Howells recorded a verdict of
death caused by the industrial disease asbestosis.
ASBESTOS LITIGATION: CSX Sued by Keller Last June in W.Va. Court
----------------------------------------------------------------
Joseph Keller, on behalf of the estate of Paul Norman Keller, on
June 13, 2008, filed an asbestos-related lawsuit against CSX
Transportation (f/k/a the Chesapeake & Ohio Railroad) in Kanawha
Circuit Court, W.Va., The West Virginia Record reports.
According to the suit, Paul Keller worked for CSX for several
years, where he was exposed to toxic and harmful dusts,
including asbestos dusts and fibers.
The suit says, "As a direct and proximate result of his exposure
to the harmful dust, fumes and other products without any lack
of due care on his part, the decedent contracted lung cancer and
other diseases related to such exposure."
Paul Keller was diagnosed with lung cancer after suffering from
the illness for three years. He died Jan. 15, 2008, as a result
of the cancer.
According to the suit, CSX had a duty to provide a safe work
environment under the Federal Employer's Liability Act.
Joseph Keller seeks compensatory and punitive damages as a
result of the injuries of Paul Keller.
James A. McKowen, Esq., represents Joseph Keller.
Kanawha Circuit Court Case No. 08-C-1167 will be assigned to a
visiting judge.
ASBESTOS LITIGATION: UCC Worker Pursuing 85 Firms in W.Va. Court
----------------------------------------------------------------
An asbestos-related lawsuit by Vincent and Antoinette Scriptunas
against 85 companies was filed on June 13, 2008 in Kanawha
Circuit Court, W.Va., The West Virginia Record reports.
The suit claims Mr. Scriptunas contracted mesothelioma as a
result of working around the deadly dusts for decades. He worked
at Union Carbide Corporation in South Charleston, W.Va., from
1951 to 1988.
On June 20, 2007, Mr. Scriptunas was diagnosed with
mesothelioma. According to the suit, the companies are
responsible for Mr. Scriptunas's illness, by failing to warn of
the dangers associated with their products.
Mr. Scriptunas claims the mesothelioma caused him severe and
disabling problems, which are permanent and will last his entire
life.
Mrs. Scriptunas claims she has lost the services, society,
companionship and consortium of her husband.
In the 11-count suit, the Scriptunases seek compensatory and
punitive damages for their suffering and anguish, plus medical
expenses and lost wages.
Thomas Patrick Maroney, Esq., represents the Scriptunas couple.
A visiting judge will be assigned Kanawha Circuit Court Case No.
08-C-1165.
ASBESTOS LITIGATION: Inquest Rules on Huddersfield Plumber Death
----------------------------------------------------------------
An inquest at Huddersfield, West Yorkshire, England, linked the
death of 83-year-old plumber Morris Daniels to exposure to
asbestos, The Huddersfield Daily Examiner reports.
Mr. Daniels died on March 23, 2008, at Kirkwood Hospice, Dalton,
Huddersfield.
At the inquest, coroner Roger Whittaker heard that Mr. Daniels
was required to mix asbestos materials with water. It led to
long-term exposure with the building material.
Mr. Daniels was diagnosed with mesothelioma in March 2007.
Before then, he was fit and healthy and enjoyed walking and
cycling with his wife Audrey.
Mr. Whittaker recorded a verdict of death by industrial disease.
ASBESTOS LITIGATION: Nichias Ordered to Hold Talks with Union
-------------------------------------------------------------
The Nara Prefectural Labor Relations Commission has ordered
Nichias Corporation to hold asbestos talks with a union
comprised of former workers, the Mainichi Daily News reports.
Five former workers at Nichias Corp. Oji factory in Oji, Nara
Prefecture, Japan formed the union in September 2006.
On July 31, 2008, a labor panel declared that Nichias broke the
law when it refused to hold talks with the union about possible
damage from the toxic substance to the health of workers and
local residents.
The Commission ordered Nichias to hold talks with the union
after deeming its refusal constituted an unfair labor practice.
It is rare for a labor relations commission to order an employer
to hold collective bargaining talks with a union comprised of
former workers who resigned 25 to 50 years ago, labor experts
say.
However, Nichias can appeal the decision to the Central Labor
Relations Commission within 15 days or file a lawsuit asking for
revocation of the decision.
The union asked the Company management on two occasions to hold
collective bargaining talks over its demands that the firm pay
compensation to those who were suffering from illnesses caused
by asbestos produced at the factory and conduct a survey on the
health conditions of employees, former workers and nearby
residents, according to its petition.
After the company refused to comply, the union filed the
petition with the labor relations commission in April 2007,
asking for an order for the company to hold collective
bargaining talks.
ASBESTOS LITIGATION: Respiratory Diseases Linked to Exposure
------------------------------------------------------------
According to a report by the Compendium of Workers' Compensation
Statistic Australia 2005-06, increases in respiratory disease
claims and neoplasm can be attributed to asbestos exposure,
Safetowork reports.
Respiratory disease claims have risen by 59 percent and neoplasm
claims have risen by 72 percent.
The study states that the number of workers compensation claims
for mental health disorder, respiratory disease and neoplasm has
jumped.
The study shows an increase of mental health disorder claims of
57 percent between the 1997-1998 and 2004-2005 periods. However,
infectious and parasitic disease claims dropped by 40 percent,
and deafness decreased by 33 percent.
The report says the reduction in deafness claims might be due to
the introduction of minimum thresholds of deafness for
compensation.
ASBESTOS LITIGATION: CIRCOR Int'l Has $9.7M Liability at June 30
----------------------------------------------------------------
CIRCOR International, Inc.'s current asbestos liability was
US$9,723,000 as of June 29, 2008, compared with US$9,697,000 as
of Dec. 31, 2007, according to the Company's quarterly report
filed with the Securities and Exchange Commission on July 31,
2008.
The Company's current asbestos liability was US$10,038,000 as of
March 30, 2008. (Class Action Reporter, May 9, 2008)
The Company's long-term asbestos liability was US$8,774,000 as
of June 29, 2008, compared with US$7,062,000 as of Dec. 31,
2007.
The Company's long-term asbestos liability was US$7,062,000 as
of March 30, 2008 and Dec. 31, 2007. (Class Action Reporter,
May 9, 2008)
Headquartered in Burlington, Mass., CIRCOR International, Inc.
provides valves and fluid control products for the industrial,
aerospace, petrochemical, and energy markets. The Company is
organized into two segments: Instrumentation and Thermal Fluid
Controls Products and Energy Products.
ASBESTOS LITIGATION: Leslie Facing 846 Active Claims at June 29
---------------------------------------------------------------
Leslie Controls, Inc., a subsidiary of CIRCOR International,
Inc., as of the end of the second quarter of 2008, was a named
defendant in about 846 active, unresolved asbestos-related
claims filed in California, Texas, New York, Massachusetts,
Connecticut, and 25 other states.
Like many other manufacturers of fluid control products, Leslie,
which the Company acquired in 1989, has been and continues to be
named as a defendant in product liability actions brought on
behalf of individuals who seek compensation for their alleged
exposure to airborne asbestos fibers.
In some instances, the Company also has been named individually
and as alleged successor in interest in these cases.
About 413 of the 846 claims involve claimants allegedly
suffering from (or the estates of decedents who allegedly died
from) mesothelioma.
In addition to these claims, Leslie was also a named defendant
in about 4,800 unresolved asbestos-related claims filed in
Mississippi.
On Oct. 12, 2007, a Los Angeles state court jury rendered a
verdict that, if allowed to stand, would result in a liability
to Leslie of about US$2.5 million (29 percent, or about
US$700,000, would be paid by Leslie while insurance would pay
the balance).
Although Leslie accrued a liability in the third quarter of
fiscal 2007 for this verdict, both Leslie and the other
defendant against whom the judgment was rendered have appealed
this verdict.
Headquartered in Burlington, Mass., CIRCOR International, Inc.
provides valves and fluid control products for the industrial,
aerospace, petrochemical, and energy markets. The Company is
organized into two segments: Instrumentation and Thermal Fluid
Controls Products and Energy Products.
ASBESTOS LITIGATION: Leslie Cites $14.9M Liability at June 30
-------------------------------------------------------------
Leslie Controls, Inc., a CIRCOR International, Inc. subsidiary,
recorded US$14,914,000 as existing asbestos claim indemnity
liability as of June 29, 2008, compared with US$13,731,000 as of
Dec. 31, 2007.
As of June 29, 2008, Leslie recorded US$3,583,000 as incurred
defense cost liability and US$12,760,000 as insurance
receivable. As of Dec. 31, 2007, Leslie recorded US$3,028,000 as
incurred defense cost liability and US$11,899,000 as insurance
receivable.
During the second quarter 2008, the Company increased the
existing claim indemnity cost liability by an additional US$1.7
million to reflect an increase in the number of net open claims
during the first half of 2008. This increase, which raises the
total estimated indemnity cost for open claims to US$10.7
million, resulted in a pretax charge of US$900,000, net of
insurance recoveries, during the second quarter 2008.
Leslie expects that payment of the amounts accrued with respect
to the open claims will be made by Leslie and its insurers over
the next three years.
Headquartered in Burlington, Mass., CIRCOR International, Inc.
provides valves and fluid control products for the industrial,
aerospace, petrochemical, and energy markets. The Company is
organized into two segments: Instrumentation and Thermal Fluid
Controls Products and Energy Products.
ASBESTOS LITIGATION: 78 Claims Resolved by Leslie Controls in 2Q
----------------------------------------------------------------
Leslie Controls, Inc., a CIRCOR International, Inc. subsidiary,
during the three months ended June 29, 2008, resolved a total of
78 asbestos claims, according to the Company's quarterly report
filed with the Securities and Exchange Commission on July 31,
2008.
During the three months ended June 29, 2008, Leslie noted 168
claims filed.
For the three months ended June 30, 2008, aggregate indemnity
costs totaled US$900,000, of which 71 percent or US$600,000 were
paid by insurance.
For the six months ended June 30, 2008, aggregate indemnity
costs totaled US$2.1 million, of which 71 percent or US$1.5
million were paid by insurance.
To date, Leslie's insurers have paid the majority of the costs
associated with its defense and settlement of asbestos-related
actions. Under Leslie's current cost-sharing arrangements with
its insurers, Leslie's insurers pay 71 percent of defense and
settlement costs associated with asbestos-related claims and
Leslie is responsible for the remaining 29 percent of all such
defense and indemnity costs.
The amount of indemnity available under Leslie's primary layer
of insurance coverage is therefore reduced by 71 percent of any
amounts paid through settlement or verdict.
As of June 29, 2008, the Company said it believes that the
aggregate amount of indemnity remaining on Leslie's primary
layer of insurance was about US$9 million.
Headquartered in Burlington, Mass., CIRCOR International, Inc.
provides valves and fluid control products for the industrial,
aerospace, petrochemical, and energy markets. The Company is
organized into two segments: Instrumentation and Thermal Fluid
Controls Products and Energy Products.
ASBESTOS LITIGATION: Spence Engineering, Hoke Face Injury Claims
----------------------------------------------------------------
Two of CIRCOR International, Inc.'s subsidiaries (Spence
Engineering Company, Inc. and Hoke, Inc.) continue to face
asbestos-related claims.
The Company acquired Spence in 1984 and Hoke in 1998.
Headquartered in Burlington, Mass., CIRCOR International, Inc.
provides valves and fluid control products for the industrial,
aerospace, petrochemical, and energy markets. The Company is
organized into two segments: Instrumentation and Thermal Fluid
Controls Products and Energy Products.
ASBESTOS LITIGATION: Owens-Illinois Has $210M Current Liability
---------------------------------------------------------------
Owens-Illinois, Inc.'s current portion of asbestos-related
liabilities were US$210 million as of June 30, 2008, the same as
for the period ended Dec. 31, 2007, according to a Company
report, on Form 8-K, filed with the Securities and Exchange
Commission on July 31, 2008.
Long-term asbestos-related liabilities were US$141.9 million as
of June 30, 2008, compared with US$245.5 million as of Dec. 31,
2007.
Asbestos-related cash payments during the three months ended
June 30, 2008 were US$63.4 million, compared with
US$52.7 million during the three months ended June 30, 2007.
Asbestos-related cash payments during the six months ended
June 30, 2008 were US$103.6 million, compared with US$93.7
million during the six months ended June 30, 2007.
Cash payments increased in part to fund, on an accelerated
basis, settlement of certain claims on terms favorable to the
Company. Cash payments were also used, in part, to reduce the
deferred amount payable for previously settled lawsuits and
claims to about US$30 million as of June 30, 2008, from about
US$32 million as of March 31, 2008.
New lawsuits and claims filed during the first half of 2008 were
about 12% lower than the same period in 2007. The number of
pending asbestos-related lawsuits and claims was about 13,000 as
of June 30, 2008, compared with about 14,000 as of March 31,
2008.
Headquartered in Perrysburg, Ohio, Owens-Illinois, Inc.
manufactures recyclable glass containers. Established in 1903,
the Company employs more than 24,000 people with 82
manufacturing facilities in 22 countries. In 2007, net sales
were US$7.6 billion.
ASBESTOS LITIGATION: Quaker Chemical in Early Stages of Suits
-------------------------------------------------------------
An inactive subsidiary of Quaker Chemical Company that was
acquired in 1978 sold certain products containing asbestos,
primarily on an installed basis, and faces numerous lawsuits
alleging injury due to exposure to asbestos.
The subsidiary discontinued operations in 1991 and has no
remaining assets other than the proceeds from insurance
settlements received. To date, the overwhelming majority of
these claims have been disposed of without payment and there
have been no adverse judgments against the subsidiary.
It is projected that the subsidiary's total liability over the
next 50 years for these claims is about US$13,800,000 (excluding
costs of defense).
Although the Company has also been named as a defendant in
certain of these cases, no claims have been actively pursued
against the Company, and the Company has not contributed to the
defense or settlement of any of these cases pursued against the
subsidiary.
These cases were handled by the subsidiary's primary and excess
insurers who had agreed in 1997 to pay all defense costs and be
responsible for all damages assessed against the subsidiary
arising out of existing and future asbestos claims up to the
aggregate limits of the policies.
A significant portion of this primary insurance coverage was
provided by an insurer that is now insolvent, and the other
primary insurers have asserted that the aggregate limits of
their policies have been exhausted. The subsidiary has
challenged the applicability of these limits to the claims being
brought against the subsidiary.
In response to this challenge, two of the three carriers entered
into separate settlement and release agreements with the
subsidiary in late 2005 for US$15 million and in the first
quarter of 2007 for US$20 million.
The payments under the latest settlement and release agreement
are structured to be received over a four-year period with
annual installments of US$5 million, the first of which was
received early in the second quarter of 2007 and the second of
which was received in the first quarter of 2008.
During the third quarter of 2007, the subsidiary and the
remaining primary insurance carrier entered into a Claim
Handling and Funding Agreement, under which the carrier will pay
27 percent of defense and indemnity costs incurred by or on
behalf of the subsidiary in connection with asbestos bodily
injury claims for a minimum of five years beginning July 1,
2007.
At the end of the term of the agreement, the subsidiary may
choose to again pursue its claim against this insurer regarding
the application of the policy limits.
All of the asbestos cases pursued against the Company
challenging the parent-subsidiary relationship are in the early
stages of litigation.
The Company has been successful in the past having claims naming
it dismissed during initial proceedings.
Headquartered in Conshohocken, Pa., Quaker Chemical Corporation
develops, produces, and markets chemical specialty products and
provides chemical management services for various heavy
industrial and manufacturing applications around the globe, with
significant sales to the steel and automotive industries.
ASBESTOS LITIGATION: MAAC Commends Study on Alimta, Paraplatin
--------------------------------------------------------------
The Mesothelioma & Asbestos Awareness Center acknowledges the
combination of Alimta and Paraplatin as an effective method of
mesothelioma treatment and expresses the ongoing urgency for
increased funding for mesothelioma-related studies and research,
TransWorldNews reports.
An Italian study involving the effectiveness of Alimta
(pemetrexed) and Paraplatin (carboplatin) was revealed at the
12thWorld Conference on Lung Cancer in 2007 and published in the
British Journal of Cancer in June 2008.
The study states that this combination of drugs is highly
effective in pleural mesothelioma patients aged 65 or older.
The survival rate associated with pleural mesothelioma is less
than one percent, and most mesothelioma sufferers will
unfortunately surrender to this form of cancer in less than two
years following their initial diagnosis.
The Alimta and Paraplatin duo has a one-year survival rate of
over 60 percent and is very effective in older mesothelioma
patients, with a median survival rate at about 14 months for
individuals in the older age group (age 70 or older) as opposed
to a survival rate of 11 months in participants in the younger
age group.
Various mesothelioma treatment methods, including chemotherapy
and other drug combinations, may control the disease and lessen
the presence of mesothelioma symptoms in patients.
The Mesothelioma & Asbestos Awareness Center is a resource for
information related to asbestos exposure, mesothelioma,
mesothelioma treatment, top doctors, and more.
ASBESTOS LITIGATION: Asbestos Cleanup in Kanawha Schools Ongoing
----------------------------------------------------------------
The removal of asbestos across various district schools in
Kanawha County, W.Va., has been ongoing since 1984, Asbestos.com
reports.
School officials have been trying to remove asbestos materials
from district schools for more than 20 years. However, the job
is nowhere near complete and it is proving to be both expensive
and time-consuming.
Many schools that were built with asbestos materials end up
spending hundreds of thousands of dollars on containment or
removal to prevent students and staff from asbestos exposure.
Terry Hollandsworth, director of maintenance and energy
management for the Kanawha County school district, says around
US$300,000 has already been spent on asbestos abatement in 2008.
However, a stronger limiting factor than money is time. The
dangers of asbestos exposure require all abatement activities to
be carried out during school vacations while students and staff
are off campus.
For this reason, abatement projects are generally carried out
during summer months, and have to be completed by the time
school starts in August.
So far in 2008, about 100 chalkboards, 3,000 square feet of
plaster ceiling, and more than 120,000 square feet of floor
tiles have been removed from Kanawha district schools. In 2007,
an additional 100,000 square feet of tiles were removed, along
with 55,000 square feet in 2006.
Mr. Hollandsworth believes it's nearly impossible to predict
when the asbestos abatement will finally be completed for the
Kanawha County school district. The oldest schools still contain
large amounts of asbestos, and those schools have a long way to
go before they can be deemed free of the toxin.
In the meantime, Mr. Hollandsworth says the district will take
all necessary precautions to ensure abatement is carried out
safely and follows all state regulations for asbestos removal.
ASBESTOS LITIGATION: EPA & Pencader Settle Over AHERA Violations
----------------------------------------------------------------
The U.S. Environmental Protection Agency settled with Pencader
Business & Finance Charter High School over violations of the
Asbestos Hazards Emergency Response Act (AHERA), the federal law
requiring schools to inspect and manage asbestos-containing
materials, according to an EPA press release dated Aug. 6, 2008.
Pencader is located at 170 Lukens Drive in Newcastle, Del.
Pencader was assessed a civil penalty of US$2,421.30. Since the
school spent US$2,744 to come into compliance with AHERA, the
civil penalty is considered to be paid in full.
According to EPA, a March 1, 2007 inspection resulted in three
violations, including:
-- Failure to conduct initial inspections to identify any
friable and non-friable asbestos containing materials
located in the school buildings. Any building leased or
acquired on or after Oct. 12, 1988, that is to be used as
a school building, is required to conduct initial
inspections for asbestos.
-- Failure to develop and submit an asbestos management plan
for the school building to an agency designated by the
governor.
-- Failure to notify in writing parent, teacher and employee
organizations of the availability of management plans.
A management plan helps prevent exposure to asbestos by ensuring
that any maintenance or other routine school activities will not
result in the disturbance of asbestos.
In addition, whenever asbestos needs to be disturbed, only
accredited persons are to be used by the school.
Annual notification on the availability of the management plan,
allows parents, teachers and employee organizations the
opportunity for reviewing all information regarding asbestos in
the school.
ASBESTOS LITIGATION: EPA & Renaissance School Reach Settlement
--------------------------------------------------------------
The U.S. Environmental Protection Agency settled with
Renaissance Advantage Charter School over violations of the
Asbestos Hazards Emergency Response Act (AHERA), according to an
EPA press release dated Aug. 6, 2008.
Renaissance is located at 1712 S. 56th Street, Philadelphia.
Renaissance was assessed a civil penalty of US$5,525. Since the
school has spent US$2,754 to comply with AHERA regulations, the
penalty has been reduced to US$2,771.
AHERA is the federal law requiring schools to inspect and manage
asbestos containing building materials. According to EPA, a
Feb. 21, 2007 inspection resulted in four violations, including:
-- Failure to conduct initial inspections to identify any
friable and non-friable asbestos containing materials
located in the school buildings. Any building leased or
acquired on or after Oct. 12, 1988, that is to be used as
school building, is required to conduct initial
inspections for asbestos.
-- Failure to conduct reinspections of the school building
for asbestos.
-- Failure to develop and submit an asbestos management
plan for the school building to an agency designated by
the governor.
-- Failure to notify in writing parent, teacher and
employee organizations of the availability of management
plans.
A management plan helps prevent exposure to asbestos by ensuring
that any maintenance or other routine school activities will not
result in the disturbance of asbestos.
In addition, whenever asbestos needs to be disturbed, accredited
persons are to be used by the school.
Annual notification on the availability of the management plan,
allows parents, teachers and employee organizations the
opportunity for reviewing all information regarding asbestos in
the school.
ASBESTOS LITIGATION: OSHA to Issue $128,700 Penalty v. Cast-Fab
---------------------------------------------------------------
The Occupational Safety and Health Administration may penalize
Cast-Fab Technologies Inc. up to US$128,700 for alleged multiple
violations of federal workplace safety and health standards,
Asbestos.com reports.
OSHA chose to inspect Cast-Fab as part of a local program that
emphasizes health and safety in the primary metal industry. The
OSHA inspection began in January 2008 and uncovered numerous
breaches.
In total, the inspection revealed an alleged 44 serious
violations, including 33 safety violations and 11 health
regulation problems.
The issues uncovered by the inspection include asbestos and
silica exposure issues, failing to warn employees about
hazardous chemicals, fire hazards, lack of periodic internal
safety inspections, lack of personal protective equipment, fall
hazards, energy control, training deficiencies, machine
guarding, and electrical hazards.
One of the most dangerous violations includes the asbestos
exposure allegations.
Richard Gilgrist, director of the OSHA's area office in
Cincinnati, says, "Handling dangerous chemicals, electrical
hazards, and machine guarding problems are issues that should
not exist at any work site. Employers must remain dedicated to
keeping the workplace safe and healthful, or face close OSHA
scrutiny."
ASBESTOS LITIGATION: Conn. School Signs Order on Removal Plan
-------------------------------------------------------------
School officials in Brookfield, Conn., have signed a consent
order with the Connecticut State Department of Public Health
that outlines the district's need to change the way it deals
with asbestos, The News-Times reports.
The order includes specific procedures to address the plan and
the threat of a US$23,000 fine for failing to follow it.
Superintendent Anthony Bivona signed the order on July 31, 2008,
a welcome step for parents who have fought the school district
for eight years over its management of asbestos found in old
floor tiles and roofing.
On Aug. 5, 2008, school officials issued a news release to
announce the settlement, in which the district "denies any
violations of the Connecticut Department of Health regulations
at any of its schools."
Department of Public Health spokesman Scott Szalkiewicz said the
consent order is a negotiated settlement based on the district's
previous notices of non-compliance with state asbestos
regulations, dating back to 2005 and 2006.
Mr. Szalkiewicz said his department issued nine notices of non-
compliance regarding asbestos in 2005, including one in
Brookfield. In 2006, it issued five notices, including one in
Brookfield. In 2007 it issued six notices and in 2008, five. He
said the consent order is Brookfield's resolution of its
notices.
Wayne D'Oria, Brookfield school board vice chair, said the
consent decree focused on the district's need to improve
communication with parents and the state on the way it manages
asbestos. The district has changed its staff training program
and improved its communications, he said.
Kerry Swift, one of the parents who pushed for state health
officials to investigate the district's handling of asbestos,
said parents had three major concerns.
One was the roof work done during the renovation and addition to
Whisconier Middle School. Without proper testing and
documentation, asbestos-containing materials could have settled
in the school, to be stirred up by student activity later.
Another issue was the leaking pipe at Brookfield High that
dripped onto an asbestos-covered pipe. The third was when the
staff at Huckleberry Hill School removed 10 cloth duct joints in
2004 without keeping records.
Mr. D'Orio said he expects the district to abide by the orders
in the decree and pointed out it has undertaken a five-year
project to remove all the asbestos in all the schools.
The parents' concerns about the district's handling of asbestos
led Attorney General Richard Blumenthal to release an
investigative report in February 2004, in which he criticized
the state Department of Public Health for its "cursory" and
ineffective monitoring of asbestos in Brookfield schools.
Mr. Blumethal outlined the public health department's obligation
under the law to monitor schools, which has been reinforced by a
state law called "An Act Concerning Indoor Air Quality in
Schools."
ASBESTOS LITIGATION: UK Inquest Rules on Michelin Worker's Death
----------------------------------------------------------------
An inquest has linked the death of 73-year-old Kenneth Gates, a
former Michelin employee, to long-term exposure to asbestos, the
Burnley Express reports.
Mr. Gates, of Sycamore Avenue, Burnley, England, was diagnosed
with lung cancer in November 2007 and died in March 2008. His
wife, Iris, told the hearing he had regularly worked with
asbestos lagging while covering pipes at Michelin in the 1970s.
Mrs. Gates added that until his diagnosis, Mr. Gates had always
been in very good health but the former cigarette and cigar
smoker began to feel ill on holiday in Spain last summer.
Dr. Zuhair Twaij, consultant pathologist at Burnley General
Hospital, who performed the post-mortem examination, gave the
cause of death as bronchial pneumonia, caused by lung cancer.
Dr. Twaij said there was some level of asbestos damage and the
smoking had contributed to his death. He added, "It is difficult
to tell which had more of an effect but asbestos is four times
more cancerous, in its effects, than smoking."
Mr. Richard Taylor, East Lancashire Coroner, recorded a verdict
of death due to industrial disease. He said, "Mr. Gates was
someone who was very heavily exposed to asbestos from the 1970s
onwards and I have no hesitation in recording a verdict of
industrial disease."
ASBESTOS LITIGATION: ASARCO LLC Plan Filed in Texas on July 31
--------------------------------------------------------------
ASARCO LLC and 25 of its debtor affiliates filed with the U.S.
Bankruptcy Court for the Southern District of Texas a joint plan
of reorganization and a disclosure statement explaining the plan
on July 31, 2008.
ASARCO's Plan seeks to implement the previously announced sale
of the Company's operating assets to Sterlite (USA), Inc., a
subsidiary of Sterlite Industries (India) Ltd., and Vedanta
Resources plc.
Sterlite agreed to pay US$2.6 billion for ASARCO's operating
assets. Majority of the sale proceeds will be used to pay
holders of allowed claims, Joseph F. Lapinsky, ASARCO's
president and chief executive, said.
Mr. Lapinsky clarified that proceeds from the sale of ASARCO's
operating assets to Sterlite are subject to upward or downward
adjustment.
From the sale proceeds, ASARCO will reserve about US$111
million, of which:
-- US$55.5 million will cover contingencies that may arise
after the Effective Date;
-- US$17.5 million for the Claim allowance process and
associated fees and expenses; and
-- US$38 million will be used by a Plan Administrator and
a Litigation Trustee, both of which will be appointed on
the Effective Date.
The Plan also incorporates agreements in principal with holders
of asbestos-related and environmental claims. Among other
things, the agreement with respect to the residual environmental
claims provides for the payment of US$750 million to holders of
residual environmental claims.
Under the Plan, Class 1 Priority Claims will be unimpaired and
paid in full. Class 2 Secured Claims and Class 3 Bondholders
Claims are unimpaired if the Debtors elect to reinstate the
Claims, or impaired if the Debtors elect to pay the Claims with
cash. Class 2 Claims are mainly composed of claims filed by
federal taxing authorities, government environmental agencies,
including the Environmental Protection Agency, and equipment
lessors.
Impaired Classes of Claims under the Plan include:
-- Class 3 Trade and General Unsecured Claims,
-- Class 5 Unsecured Asbestos Claims,
-- Class 6 Toxic Tort Claims,
-- Class 7 Previously Settled Environmental Claims,
-- Class 8 Miscellaneous Federal & State Environmental Claims,
-- Class 9 Residual Environmental Claims,
-- Class 10 Allowed Late Filed Claims, and
-- Class 11 Subordinated Claims.
Asbestos claims filed against the Asbestos Debtors (Lac
d'Amiante Du Quebec Ltee, CAPCO Pipe Company, Inc., Cement
Asbestos Products Company, Lake Asbestos Of Quebec, Ltd., and
LAQ Canada, Ltd.) will be channeled to an asbestos trust, which
will be funded by proceeds from several asbestos insurance
policies, the asbestos claimants' share from the Plan
distributions, a part of the proceeds from certain lawsuits, and
100 percent of the interests in reorganized Debtor Covington
Land Company.
As of March 5, 2007, the maximum aggregate asbestos liabilities
of the Asbestos Debtors is estimated to range from US$180
million to US$2.655 billion.
Separate trusts will be created to address environmental claims
in designated sites. As of the Petition Date, environmental
claims filed against the Debtors total about US$6.5 billion.
Also, as of the Petition Date, about 850 Toxic Tort Claims had
been filed against the Debtors in the aggregate amount of about
US$1.470 billion.
Interests in ASARCO, the Asbestos Debtors, and other Debtor
affiliates will be canceled upon the Effective Date of the Plan.
ASARCO's Plan may be declared effective if the Company obtains
approval from the Bankruptcy Court of the Disclosure Statement,
and a finding from the U.S. District Court for the Southern
District of Texas that the treatment of the Debtors' asbestos
liabilities under the Plan is adequate and that the sale of
ASARCO's operating assets is negotiated in good faith.
Judge Richard Schmidt will convene a hearing on Sept. 23, 2008,
to consider approval of the Disclosure Statement. Disclosure
Statement objections are due Sept. 13, 2008. A hearing to
consider approval of the ASARCO Plan is set for Nov. 17, 2008.
The Plan Sponsor PSA provides that a Confirmation Order must be
entered by Dec. 15, 2008, or until Jan. 17, 2009, if the Plan
Sponsor consents. The Closing is contemplated to occur on
Dec. 31, 2008, or may be extended until Jan. 28, 2009. If these
deadlines are not met, the Plan Sponsor PSA may be terminated.
Asarco Inc., the 100 percent equity owner of ASARCO LLC, was
also granted Court authority to file a competing plan. The
parent has made known its intent to file a full-payment plan,
which will be financed by a US$2.7 billion guarantee from
American Mining Corporation, and US$1 billion cash ASARCO LLC
has on hand.
A full-text copy of the ASARCO Chapter 11 Plan is available for
free at http://bankrupt.com/misc/ASARCOPlan.pdf
A full-text copy of the Disclosure Statement is available for
free at http://bankrupt.com/misc/ASARCODiscStatement.pdf
(ASARCO Bankruptcy News, Issue No. 78; Bankruptcy Creditors'
Service, Inc. 215-945-7000 FAX 215-945-7001)
ASBESTOS LITIGATION: Further Relief Granted to Armstrong World
--------------------------------------------------------------
At Judge Judith Fitzgerald's directive, Sue A. Erhart, Esq., at
Keating, Muething & Klekamp PLL, in Cincinnati, Ohio,
corresponded to William B. Yancey, Sr.'s letter on July 16,
2008.
On behalf of the Armstrong World Industries, Inc. Asbestos
Personal Injury Settlement Trust, Ms. Erhart informed Mr. Yancey
that AWI Trust had filed an application to obtain judicial
settlement and approval of the AWI Trust's accounts, which
purpose is to keep the beneficiaries of a trust informed
regarding the trust and its administration.
Ms. Erhart also informed the Court that the AWI Trust sent Mr.
Yancey a letter on Feb. 21, 2008, regarding his claim. The
Letter explained to Mr. Yancey that he was not able to satisfy
certain exposure and medical evidentiary requirements needed
under the AWI Trust Distribution Procedures under AWI's Fourth
Amended Plan of Reorganization.
Furthermore, the Yancey Claim did not present sufficient
evidence of exposure to AWI products or operations, Ms. Erhart
pointed out. The AWI Trust, then, asked Mr. Yancey to identify
the exposure with specificity, Ms. Erhart disclosed.
The AWI Trust also provided Mr. Yancey a list of locations,
where AWI products were used, and whether he has worked at any
of the sites and further information regarding his diagnosis of
asbestosis.
Ms. Erhart said that upon receipt of Mr. Yancey's response to
the Letter, the AWI Trust forwarded the information to the
Delaware Claims Processing Facility which processes claims on
the AWI Trust's behalf. The DCPF reviewed the Claim and found
that there was still insufficient evidence to satisfy the AWI
Trust's medical and exposure criteria.
Mary Ellen Nickel, director of Claimant Relations Processing
Facility, then contacted Mr. Yancey to discuss the Claim's
deficiencies. Ms. Erhart revealed that Ms. Nickel spoke with Mr.
Yancey regarding specific medical records and product
identification that he needs to submit, without which the DCPF
cannot approve the Claim for payment under the TDP.
The AWI Trust advises future claimants to contact Mary Ellen
Nickel, at (302) 888-6146, further information and questions
regarding their claims.
(Armstrong Bankruptcy News, Issue No. 126; Bankruptcy Creditors'
Service, Inc. Phone 215-945-7000 FAX 215-945-7001)
ASBESTOS LITIGATION: CBS Corp. Faces 73,940 Claims as of June 30
----------------------------------------------------------------
CBS Corporation had about 73,940 asbestos claims as of June 30,
2008, compared with about 72,120 as of Dec. 31, 2007 and about
72,890 as of June 30, 2007.
The Company faced about 72,870 asbestos claims as of March 31,
2008. (Class Action Reporter, May 16, 2008)
The Company is a defendant in lawsuits claiming various personal
injuries related to asbestos and other materials, which
allegedly occurred principally as a result of exposure caused by
various products manufactured by Westinghouse, a predecessor,
generally prior to the early 1970s. Westinghouse was neither a
producer nor a manufacturer of asbestos.
The Company is typically named as one of a large number of
defendants in both state and federal cases. In most asbestos
lawsuits, the plaintiffs have not identified which of the
Company's products is the basis of a claim.
Claims against the Company in which a product has been
identified principally relate to exposures allegedly caused by
asbestos-containing insulating material in turbines sold for
power-generation, industrial and marine use, or by asbestos
containing grades of decorative micarta, a laminate used in
commercial ships.
Of the claims pending as of June 30, 2008, about 41,550 were
pending in state courts, 28,620 in federal courts and,
additionally, about 3,770 were third party claims pending in
state courts.
During the second quarter of 2008, the Company received about
1,770 new claims and closed or moved to an inactive docket about
700 claims.
The Company's total costs for settlement and defense of asbestos
claims after insurance recoveries and net of tax benefits were
about US$17.5 million for 2007 (US$$5.7 million for 2006).
Headquartered in New York, CBS Corporation is comprised of the
following segments: Television (CBS Television, comprised of the
CBS Television Network, television stations, and its television
production and syndication operations; Showtime Networks; and
CBS College Sports Network), Radio (CBS Radio), Outdoor (CBS
Outdoor) and Publishing (Simon & Schuster).
ASBESTOS LITIGATION: Graham Corporation Still Has Exposure Suits
----------------------------------------------------------------
Graham Corporation is still a defendant in certain lawsuits
alleging personal injury from exposure to asbestos contained in
products made by the Company.
The Company is a co-defendant with numerous other defendants in
these lawsuits. The claims are similar to previous asbestos
suits that named the Company as defendant, which either were
dismissed when it was shown that the Company had not supplied
products to the plaintiffs' places of work or were settled for
minimal amounts below the expected defense costs.
Neither the outcome of these lawsuits nor the potential for
liability can be determined at this time.
Headquartered in Batavia, N.Y., Graham Corporation designs and
makes custom-engineered ejectors, liquid ring pump packages,
condensers and heat exchangers. The Company has a China
subsidiary, which supports sales orders from Asia and provides
engineering support and supervision of subcontracted
fabrication.
ASBESTOS LITIGATION: 10 Actions Still Ongoing v. Katy Industries
----------------------------------------------------------------
Katy Industries, Inc. continues to face 10 asbestos lawsuits in
state court in Alabama by a total of about 324 individual
plaintiffs, according to the Company's quarterly report filed
with the Securities and Exchange Commission on Aug. 4, 2008.
There are over 100 defendants named in each case. In all 10
cases, the Plaintiffs claim that they were exposed to asbestos
in the course of their employment at a former U.S. Steel plant
in Alabama and, as a result, contracted mesothelioma,
asbestosis, lung cancer or other illness.
They claim that they were exposed to asbestos in products in the
plant which were manufactured by each defendant. In eight of the
cases, Plaintiffs also assert wrongful death claims.
The liability of the Company cannot be determined at this time.
Headquartered in Bridgeton, Mo., Katy Industries, Inc. makes and
markets maintenance products, including cleaning supplies,
abrasives, and stains. Its Continental Commercial Products (CCP)
subsidiary operates five divisions: Contico, Disco, Glit, Wilen,
CCP Canada, and Gemtex.
ASBESTOS LITIGATION: Katy Ind. Cites 2,500 Sterling Fluid Claims
----------------------------------------------------------------
Katy Industries, Inc. says that Sterling Fluid Systems (USA) has
tendered about 2,500 cases to the Company for indemnification.
These cases are pending in Michigan, New Jersey, New York,
Illinois, Nevada, Mississippi, Wyoming, Louisiana, Georgia,
Massachusetts, Missouri, and California.
With respect to one case, Sterling has demanded that the Company
indemnify it for a US$200,000 settlement. Sterling bases its
tender of the complaints on the provisions contained in a 1993
Purchase Agreement between the parties whereby Sterling
purchased the LaBour Pump business and other assets from the
Company. Sterling has not filed a lawsuit against the Company in
connection with these matters.
The tendered complaints all purport to state claims against
Sterling and its subsidiaries. The Company and its current
subsidiaries are not named as defendants.
The plaintiffs in the cases also allege that they were exposed
to asbestos and products containing asbestos in the course of
their employment.
Each complaint names as defendants many manufacturers of
products containing asbestos, apparently because plaintiffs came
into contact with a variety of different products in the course
of their employment.
Plaintiffs claim that LaBour Pump Company, a former division of
an inactive subsidiary of the Company, and Sterling may have
manufactured some of those products.
With respect to many of the tendered complaints, including the
one settled by Sterling for US$200,000, the Company has taken
the position that Sterling has waived its right to indemnity by
failing to timely request it as required under the 1993 Purchase
Agreement.
With respect to the balance of the tendered complaints, the
Company has elected not to assume the defense of Sterling in
these matters.
Headquartered in Bridgeton, Mo., Katy Industries, Inc. makes and
markets maintenance products, including cleaning supplies,
abrasives, and stains. Its Continental Commercial Products (CCP)
subsidiary operates five divisions: Contico, Disco, Glit, Wilen,
CCP Canada, and Gemtex.
ASBESTOS LITIGATION: Labour Pump Facing 100 Cases in N.J. Court
---------------------------------------------------------------
Katy Industries, Inc., says that about 100 active asbestos cases
remain against LaBour Pump Company, a former division of an
inactive Company unit, in New Jersey.
LaBour has been named as a defendant in about 400 of the New
Jersey cases tendered by Sterling Fluid Systems (USA).
The Company has elected to defend these cases, the majority of
which have been dismissed or settled for nominal sums.
Headquartered in Bridgeton, Mo., Katy Industries, Inc. makes and
markets maintenance products, including cleaning supplies,
abrasives, and stains. Its Continental Commercial Products (CCP)
subsidiary operates five divisions: Contico, Disco, Glit, Wilen,
CCP Canada, and Gemtex.
ASBESTOS ALERT: Maskell & LCH to Pay GBP220T for Cleanup Breach
---------------------------------------------------------------
Developers R Maskell Ltd. and asbestos removal specialists LCH
Contracts Ltd. have been fined a total of more than GBP200,000
for failing to comply with health and safety measures relating
to the removal of asbestos, the EveningStar24 reports.
On Aug. 6, 2008, Maskell Ltd and LCH were sentenced for work
carried out at St. Francis Tower, in Franciscan Way, Ipswich,
Suffolk, England.
Judge Neil McKittrick fined Maskell GBP100,000 for failing to
ensure the health and welfare of employees at work and GBP50,000
for failing to comply with fire safety regulations.
LCH, who was hired by Maskell to remove the asbestos once they
realized the potentially deadly substance was present, was fined
GBP50,000 for failing to reduce the spread of asbestos to those
working there and GBP20,000 for failing to stick to its
designated plan when carrying out the removal.
Judge McKittrick heard how inspectors from the Health and Safety
Executive (HSE) visited the town center site and found six or
seven Lithuanian workers stripping asbestos from the 15 story
building without the correct safety or disposal methods in
place.
COMPANY PROFILE
R Maskell Ltd.
Rima House
Ripple Road
Barking
Essex, England
COMPANY PROFILE
LCH Contracts Ltd.
219 Wickham Road
Croydon, Surrey
England
Tel: 020 8655 1010
*********
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Wednesday's edition of the Class Action Reporter. Submissions
via e-mail to carconf@beard.com are encouraged.
Each Friday's edition of the CAR includes a section featuring
news on asbestos-related litigation and profiles of target
asbestos defendants that, according to independent research,
collectively face billions of dollars in asbestos-related
liabilities.
*********
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