/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/081003.mbx C L A S S A C T I O N R E P O R T E R Friday, October 3, 2008, Vol. 10, No. 197 Headlines ALLIANCE PETROLEUM: Sneaky Charge At Pump, Calif. Suit Claims ARAMARK CORP: Violated State Tipping Laws, Mass. Suit Alleges FLORIDA: Complaint Filed on Behalf of Disabled Students GLAXOSMITHKLINE PLC: Paxil Suit in Minn. Settled for $40 Million HIENERGY TECHNOLOGIES: Settles With Bankruptcy Trustee JOHNSON & JOHNSON: Class Certified in PROPULSID-Related Lawsuit JOHNSON & JOHNSON: Endo-Mechanical Devices Suits Still Pending JOHNSON & JOHNSON: Several RISPERDAL-Related Suits Still Pending LITTON LOAN: Faces N.Y. Suit Over Excessive Interest Charges LUBY'S INC: Texas Judge Refuses to Drop 2007 Tip-Sharing Lawsuit MERCK & CO: Faces Lawsuit Over Medicaid Expenditures for Vioxx MERCK & CO: Faces Vioxx-Related Class Lawsuit in California MERCK & CO: New Jersey Court Denies Motion in ERISA Suits MDL MERCK & CO: N.J. Supreme Court Dismisses "Sinclair" Lawsuit MERCK & CO: Seeks Review of Certification Ruling in Mo. Lawsuit MERCK & CO: Several Vioxx Product Liability Suits Still Pending MF GLOBAL: Faces Consolidated Securities Fraud Lawsuit in N.Y. MF GLOBAL LTD: Faces Securities Fraud Lawsuit in New York OPTIONABLE INC: Seeks Dismissal of Securities Lawsuits in N.Y. OSB LITIGATION: Settles Five OSB-Related Price-Fixing Lawsuits PARK CREST: Unfinished Condominium Units Prompt Virgina Lawsuit PZENA INVESTMENT: Consolidated Securities Suit Pending in N.Y. SC JOHNSON: Windex Label Is 'Greenwash,' Wis. Lawsuit Alleges WAUKESHA ENGINE: Racial Discrimination Alleged in Wis. Lawsuit New Securities Fraud Cases CANADIAN IMPERIAL: Brower Piven Files Securities Suit in N.Y. NEXTWAVE WIRELESS: Brower Piven Files Securities Suit in Calif. NOVATEL WIRELESS: Brower Piven Files Securities Suit in Calif. OSHKOSH CORP: Brower Piven Files Wisconsin Securities Fraud Suit QUEST RESOURCE: Howard Smith Files Okla. Securities Fraud Suit SPECTRANETICS CORP: Brower Piven Files Securities Suit in Colo. Asbestos Alerts ASBESTOS LITIGATION: Rohrer Suit v. John Crane Filed on Sept. 22 ASBESTOS LITIGATION: EPA Issues Guidance to Galveston Residents ASBESTOS LITIGATION: Flintkote Co. Employees Exposed to Asbestos ASBESTOS LITIGATION: Living Near Factories Ups Risks, Study Says ASBESTOS LITIGATION: 90 Percent of Bedfordshire Schools at Risk ASBESTOS LITIGATION: Appeals Court Junks Padilla Suit v. Pomona ASBESTOS LITIGATION: Texas Appeals Court Rules Against Relators ASBESTOS LITIGATION: Court Issues Split Ruling in Silta Lawsuit ASBESTOS LITIGATION: GenCorp Facing 161 Pending Cases at Aug. 31 ASBESTOS LITIGATION: Salton Inc. Subsidiary Faces 3 Injury Suits ASBESTOS LITIGATION: Kimble's Lawsuit v. 144 Firms Filed in Ill. ASBESTOS LITIGATION: Dibb Pleads Not Guilty in Exposure Lawsuit ASBESTOS LITIGATION: Royal Philips Unit to Resolve Injury Claims ASBESTOS LITIGATION: Whitby Hospital Cleanup to Cost GBP80,000 ASBESTOS LITIGATION: Ohio EPA to Clean General Industries Site ASBESTOS LITIGATION: Appeal Court Favors Spillman in Exxon Case ASBESTOS LITIGATION: Johnson Action Filed v. 55 Firms in Madison ASBESTOS LITIGATION: Brockovich to Work w/ Law Firm on Asbestos ASBESTOS LITIGATION: McCart to Pay GBP44T Fine for 7 Violations ASBESTOS LITIGATION: Aircraft Carrier for Dismantling in England ASBESTOS LITIGATION: 18 People Exposed to McNeil Island Asbestos ASBESTOS LITIGATION: N.Y. Sees Surge of Complaints in Sept. 2008 ASBESTOS LITIGATION: Blears Lauds "Save Spodden Valley" Campaign ASBESTOS LITIGATION: Asbestos Removed from Hegeman Hall in R.I. ASBESTOS LITIGATION: UCATT "Decries" Denial of Payout to Victims ASBESTOS LITIGATION: Split Rulings Issued for Continental Casual ASBESTOS LITIGATION: Ameron Facing 31 Pending Claims at Aug. 31 ASBESTOS LITIGATION: LADWP Fined $9,030 for Clean Air Act Breach ASBESTOS LITIGATION: Ariz. Schools Fined $11T for AHERA Breach ASBESTOS LITIGATION: ASARCO LLC's Second Plan Filed on Sept. 25 ASBESTOS LITIGATION: Schmidt OKs ASARCO to Extend Loan to $10Mil ASBESTOS LITIGATION: Dist. Court Affirms Approval of Dana Pacts ASBESTOS LITIGATION: Klamath to Pay $8,299 for Cleanup Breaches ASBESTOS LITIGATION: N. Ireland Suffers to Get GBP10T in Payout ASBESTOS LITIGATION: Court Junks Cooper Ind. Asbestos Settlement ASBESTOS LITIGATION: Hogg to Pay GBP6,500 for Disposal Breaches ASBESTOS LITIGATION: Trial Against Ex-Hardie Directors Ongoing ASBESTOS LITIGATION: HSE to Launch Awareness Campaign in October ASBESTOS ALERT: Six Lawsuits Ongoing v. Jaguar Cars, Land Rover ********* ALLIANCE PETROLEUM: Sneaky Charge At Pump, Calif. Suit Claims ------------------------------------------------------------- Alliance Petroleum Corporation is facing a class-action complaint filed in Los Angeles Superior Court over allegations that it defrauded consumers at 1,200 ARCO stations by failing to reveal that it charged 35 cents extra for debit-card purchases, CourtHouse News Service reports. The plaintiffs say more than 5 million people have been affected since 2004. The plaintiffs demand punitive damages. Representing plaintiffs is: Eric B. Kingsley, Esq. Kingsley & Kingsley, A Professional Corporation City National Bank Building 16133 Ventura Boulevard, Suite 1200 Encino, CA 91436 Phone: 818-990-8300 Fax: 818-990-2903 Web site: http://www.kingsleykingsleylaw.com/ ARAMARK CORP: Violated State Tipping Laws, Mass. Suit Alleges ------------------------------------------------------------- Aramark Corp. is facing a class-action complaint filed in Suffolk County Superior Court alleging it violated the state's tipping law by adding a 20% service charge to patrons' bills yet not distributing those payments to the waitstaff, Boston Globe reports. According to Boston Globe, the lawsuit is filed by Shannon Liss- Riordan, Esq., on behalf of banquet workers employed by Aramark at the Massachusetts Convention Center Authority's two Boston facilities. The banquet workers are among the more than 300 food-service workers at the John B. Hynes Veterans Memorial Convention Center and the Boston Convention & Exhibition Center, who have been at odds with Aramark over the union contract that expired last October. The lawsuit could cover hundreds of workers if it receives the requested class-action certification, the report says. James E. Rooney, the MCCA's executive director, told Boston Globe that he had not seen the lawsuit but the authority doesn't have anything to do with patrons' food service bills, which are issued by Aramark. He also said the unionized banquet workers earn higher wage rates -- ranging from $16 per hour to $40 per hour -- rather than the minimum wage typically paid to food- service workers who do collect tips. Headquartered in Philadelphia, Pennsylvania, Aramark Corp. (NYSE: RMK) -- http://www.aramark.com/-- is a professional services organization, providing food services, facilities management, hospitality services, and uniforms and career apparel to health care institutions, universities and school districts, stadiums and arenas, businesses, prisons, senior living facilities, parks and resorts, correctional institutions, conference centers, convention centers, and public safety professionals around the world. Aramark also has operations in Belgium, Canada, China, Czech Republic, Chile, Germany, Ireland, Japan, Korea, Mexico, Spain, and the United Kingdom. FLORIDA: Complaint Filed on Behalf of Disabled Students ------------------------------------------------------- Three civil rights groups filed a class-action complaint with the Florida Department of Education in Tallahassee on behalf of students with mental and emotional disabilities in Hillsborough County, McClatchy-Tribune Information Services reports. The Southern Poverty Law Center, NAACP, and the Advocacy Center for Persons with Disabilities claim the school system violated the federal rights of disabled students. The action is on behalf of "all students of the Hillsborough County public school system with emotional/behavioral disabilities, or who manifest such behavioral issues, and who have been or are being, subjected to repeated disciplinary removals totaling more than 10 school days." The complaint alleges that six students did not receive services such as counseling, social work or psychological help that they were entitled to under federal law. Instead, students were subjected to repeated disciplinary measures including more than 10 days of in- and out-of-school suspensions, court referrals, and undocumented, illegal removals from school, the suit says. Marlene Sallo, Esq., attorney for the Advocacy Center for Persons with Disabilities, told McClatchy-Tribune that such students "are literally pushed out of school" and many end up in prison. GLAXOSMITHKLINE PLC: Paxil Suit in Minn. Settled for $40 Million ---------------------------------------------------------------- GlaxoSmithKline plc agreed to pay $40 million to reimburse health plans that paid for children and adolescents to receive the antidepressant drug Paxil, pursuant to a settlement approved by the U.S. District Court for the District of Minnesota approved a settlement, Josephine Marcotty writes for the Star Tribune. The report states that although Paxil is not approved by the Food and Drug Administration for use by children, doctors may prescribe it for them. Studies have shown that Paxil and other antidepressants in some instances lead to increased thoughts of suicide in adolescents. Last year, the FDA ordered drugmakers to add a "black box" warning of the drug's risks after parents and other consumer advocates raised questions about the safety of antidepressants for those under age 18. Under the settlement, GSK will pay insurers who paid for a Paxil prescription for use by a minor between January 1998 and December 2004. They may claim a refund of 40% of their actual cost of the drug prescribed to children and adolescents diagnosed with a major depression, or 15% of the cost if the diagnosis was unknown. According to Paul Dahlberg, Esq. -- an attorney with Meshbesher & Spence, one of nine law firms involved in the case -- the settlement resolves the case on behalf of some 42,000 health plans across the country that paid for the drug. A third of the settlement will be paid to the law firms. If the settlement account is not exhausted, the unclaimed balance will be donated to nonprofits involved in mental health, the report notes. According to the report, the agreement brings to a close the long-standing class-action litigation against Glaxo, which was sued for allegedly withholding negative information about the safety and efficacy of Paxil for teenagers and children. Based in Middlesex, England, GlaxoSmithKline plc creates and discovers, develops, manufactures and markets pharmaceutical products, including vaccines, over-the-counter medicines and health-related consumer products. HIENERGY TECHNOLOGIES: Settles With Bankruptcy Trustee ------------------------------------------------------ NEW YORK, Oct. 1, 2008 -- The Rosen Law Firm disclosed a settlement with the chapter 7 bankruptcy trustee in connection with a class action lawsuit pending against HiEnergy Technologies, Inc. (Pink Sheets:HIET) in the U.S. District Court for the Central District of California as case number CV 04- 01226-VBF. In October 2004, the suit was filed, on behalf of a class of persons who acquired the stock of the Company during the period from February 22, 2002, through July 8, 2004. In January 2005, the Company was officially served and has retained legal counsel to defend it and assert all available defenses. In February 2005, plaintiff's counsel filed a First Amended Complaint, alleging various violations of the federal securities laws, generally asserting the same claims involving Philip Gurian, Barry Alter, and the Company's failure to disclose their various securities violations including, without limitation, allegations of fraud (Class Action Reporter, April 28, 2005). The First Amended Complaint seeks, among other things, monetary damages, attorneys' fees, costs, and declaratory relief. The proposed Settlement with HiEnergy's chapter 7 bankruptcy trustee calls for the trustee to assign to the lead plaintiff the bankruptcy estate's contingent first party rights against Navigators Insurance Company (Navigators) for that insurance provider's alleged wrongful refusal to provide defense and indemnity benefits to HiEnergy under an insuring agreement with HiEnergy for liability insurance coverage. In return for such assignment, the Class will release HiEnergy, its officers and directors and related persons from any liability for claims related to this action. In addition, the Class will pay HiEnergy's bankruptcy estate 25% of the net proceeds obtained by prosecuting the lawsuit against Navigators to assert HiEnergy's rights under its liability insurance policy with Navigators. Pursuant to Rule 23 of the Federal Rules of Civil Procedure and an Order of the above Court dated September 26, 2008, that a hearing will be held on December 15, 2008 at 2:00 p.m. at the U.S. District Court for the Central District of California to determine whether the Court should approve a settlement between the Class and HiEnergy's Chapter 7 Bankruptcy trustee. The suit is "In re: HiEnergy Technologies, Inc. Securities Litigation, Master File No. 8:04-CV-01226-DOC (JTLx)," filed in the United States District Court for the Central District of California, Judge David O. Carter, presiding. Representing the plaintiffs are: Kenneth Catanzarite, Esq. (kcatanzarite@catanzarite.com) Jim T. Tice, Esq. (jtice@catanzarite.com) Catanzarite Law Offices 2331 W Lincoln Ave Anaheim, CA 92801 Phone: 714-520-5544 - and - Laurence M. Rosen, Esq. (lrosen@rosenlegal.com) Rosen Law Firm 350 Fifth Avenue, Suite 5508 New York, NY 10118 Phone: 212-686-1060 JOHNSON & JOHNSON: Class Certified in PROPULSID-Related Lawsuit --------------------------------------------------------------- A class has been certified in a purported class-action lawsuit pending in Canada against Johnson & Johnson in connection with the heartburn drug PROPULSID. The class is alleging adverse reactions to the drug, which was withdrawn from general sale by the company's Janssen Pharmaceutica, Inc. subsidiary in 2000. The company reported no further development regarding the matter in its Aug. 4, 2008 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 29, 2008. Johnson & Johnson -- http://www.jnj.com/-- is engaged in the research and development, manufacture and sale of a range of products in the healthcare field. The company has more than 250 operating companies. It operates in three segments: Consumer, Pharmaceutical, and Medical Devices and Diagnostics. JOHNSON & JOHNSON: Endo-Mechanical Devices Suits Still Pending -------------------------------------------------------------- Johnson & Johnson, along with its wholly owned Ethicon and Ethicon Endo-Surgery subsidiaries, continues to face several federal lawsuits in California relating to endo-mechanical devices contracts, according to the company's Aug. 4, 2008 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 29, 2008. In late December 2005 and early 2006, three purported class action complaints were filed before the U.S. District Court for the Central District of California against the company and its wholly-owned units, Ethicon Inc., Ethicon Endo-Surgery Inc., and Johnson & Johnson Health Care Systems, Inc. (Class Action Reporter, May 19, 2008). The suits were filed on behalf of purchasers of endo-mechanical instruments. The lawsuits challenge suture and endo-mechanical contracts with Group Purchasing Organizations and hospitals, in which discounts are predicated on a hospital achieving specified market share targets for both categories of products. The lawsuits filed in December 2005 are: -- "Delaware Valley Surgical Supply Co., Inc. v. Johnson & Johnson et al.;" and -- "Niagara Falls Memorial Medical Center v. Johnson & Johnson, et al." The company reported no further development regarding the cases in its Aug. 4, 2008 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 29, 2008. Johnson & Johnson -- http://www.jnj.com/-- is engaged in the research and development, manufacture and sale of a range of products in the healthcare field. The company has more than 250 operating companies. It operates in three segments: Consumer, Pharmaceutical, and Medical Devices and Diagnostics. JOHNSON & JOHNSON: Several RISPERDAL-Related Suits Still Pending ---------------------------------------------------------------- Johnson & Johnson is still facing several purported class-action lawsuits with regard to the drug RISPERDAL, which is used for the treatment of schizophrenia. Currently, there are six cases filed by union health plans seeking damages for alleged overpayments for RISPERDAL, several of which seek certification as class actions. The company reported no further development regarding the cases in its Aug. 4, 2008 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 29, 2008. Johnson & Johnson -- http://www.jnj.com/-- is engaged in the research and development, manufacture and sale of a range of products in the healthcare field. The company has more than 250 operating companies. It operates in three segments: Consumer, Pharmaceutical, and Medical Devices and Diagnostics. LITTON LOAN: Faces N.Y. Suit Over Excessive Interest Charges ------------------------------------------------------------ Litton Loan Servicing is facing a class-action complaint filed in Queens County Court, New York, over allegations that it charged hundreds or thousands of people excessive interest, late fees and other penalties because it delayed mortgage payoff or reinstatement reports, CourtHouse News Service reports. The plaintiffs bring this action for breach of contract, fraud, violation of the Consumer Protection Act, and violation of NYS Real Property Law 274-A, on behalf of all present and former mortgagors or persons with interest in a mortgaged premises, who requested payoff and/or reinstatement mortgage figures and who were damaged as a result of defendant's unlawful delay in supplying the requested information so as to result in the mortgagors or such persons with financial interest in the mortgage, to incur additional daily per diem interest, additional foreclosure attorney's fees, additional escrow charges and other associated fees. The plaintiffs want the court to rule on: (a) whether defendant breached it's agreement with the mortgagors by charging plaintiffs and the class unnecessary interest and fees as a result of its own failure to timely provide mortgage payoff and reinstatement figures; (b) whether defendants breached their duty of good faith and fair dealing by charging plaintiffs and the class unnecessary interest and fees as a result of its own failure to timely provide mortgage payoff and reinstatement figures; (c) whether defendant engaged in fraudulent or unfair and deceitful practices by charging plaintiffs and the class unnecessary interest and fees as a result of its failure to timely provide mortgage payoff and reinstatement figures; (d) whether the defendant violated New York State Real Property Law 274-A by charing plaintiffs and the class unnecessary interest and other fees as a result of its own failure to timely provide mortgage payoff and reinstatement figures; (e) whether the members of the class have sustained damages as a result of defendant's wrongful conduct; (f) the appropriate measure of damages and other relief; (g) whether defendants have been unjustly enriched by their scheme of charging the mortgagor's additional interest and fees stemming from its own failure to timely provide either payoff letter and reinstatement figures to the mortgagors; and (h) whether defendants should be enjoined from continuing their unlawful practices. The plaintiffs ask the court for: -- an order certifying this action as a class action pursuant to the provisions of Article 9 of the CPLR, with plaintiff certified as representatives of the class; -- compensatory damages in favor of plaintiff and the class; -- punitive damages on plaintiff's fraud claim, in an amount not less than three times the total damages as determined at trial; -- other damages as prescribed by law, including triable damages not in excess of the statutory minimum under General Business Law Section 349 and 350; -- actual damages incurred as a result of defendant's violation of Real Property Law 374-A; -- costs and disbursements incurred in connection with this action, including reasonable attorneys' fees and expenses; -- pre- and post-judgment interest; and -- such other and further relief as the court deems just and proper. The suit is "Dwarka P. Prasad, et al. v. Litton Loan Servicing, Index No. 23237-08," filed in Queens County Court, New York. Representing the plaintiffs is: Jonathan I. Edelstein, Esq. 271 Madison Avenue, 20th Floor New York, NY 10016 Phone: 212-871-0571 x208 Fax: 212-382-3610 LUBY'S INC: Texas Judge Refuses to Drop 2007 Tip-Sharing Lawsuit --------------------------------------------------------------- Judge Samuel Kent of the U.S. District Court for the Southern District of Texas denied a request from Luby's Inc. that a 2007 lawsuit over tip-sharing be dropped, Mary Flood reports for the Houston Chronicle. The lawsuit is over mandatory tip-sharing between the wait staff -� the folks who ask diners if you need anything like tea or dessert -� and the service attendants who clean off dishes after the wait staff removes them from the tables. According to the report, Robert "Bob" Debes, Esq., a Houston attorney representing 10 wait staff from around the state, said if they win the lawsuit, his clients could potentially collect, on a sliding scale, up to $4.42 an hour for each hour they worked in the last two to three years. The amount will depend in part on the prevailing minimum wage. The report says that the key to the lawsuit will be the definition of duties and how much the service attendants are like bus boys, who can legally share in tips. Ms. Flood writes that if the judge or a jury decides they are more like kitchen staff, who can't share in tips, the wait staff could have a big pay day. Mr. Debes told Houston Chronicle that the next step is for Luby's to provide a list of waiters and waitresses at Luby's restaurants around the state in the last few years. These people will be contacted and can join this federal wage lawsuit if they wish, Mr. Debes said. Luby's lawyer Terrence Robinson, Esq., said the tips were properly shared. "This suit attempts to create something out of nothing. These guys are bussers, and the tips were properly divided," he said. The suit is "Plewinski v. Luby's Inc., Case Number: 4:2007- cv-03529," filed in the U.S. District Court for the Southern District of Texas, Judge Samuel B. Kent, presiding. The plaintiffs' lawyer is: Robert R. Debes, Jr. Debes Law Firm 17 South Briar Hollow Ln, Suite 302 Houston, TX 77027 Phone: 713-623-0900 Fax: 713-623-0951 Representing Luby's is: Terrence B. Robinson, Esq. Neel, Hooper & Banes, P.C. 1700 West Loop South, Suite 1400 Houston, TX 77027 Phone: 713-629-1800 Fax: 713-629-1812 MERCK & CO: Faces Lawsuit Over Medicaid Expenditures for Vioxx -------------------------------------------------------------- Merck & Co. Inc. is facing a purported class-action lawsuit containing similar allegations to suits filed by (or on behalf of) governmental entities that were seeking the reimbursement of alleged Medicaid expenditures for Vioxx or statutory penalties tied to such expenditures. The purported class action was filed by Santa Clara County, California, on behalf of all similarly situated California counties. It has been transferred to the multidistrict litigation in the U.S. District Court for the Eastern District of Louisiana before Judge Eldon E. Fallon, and has not experienced significant activity to date, 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. Merck & Co., Inc. -- http://www.merck.com/-- is a global research-driven pharmaceutical company that discovers, develops, manufactures and markets a range of products to improve human and animal health. The company's operations are principally managed on a products basis and comprises of two business segments: the Pharmaceutical segment and the Vaccines segment. The Pharmaceutical segment includes human health pharmaceutical products marketed either directly or through joint ventures. Merck sells these human health pharmaceutical products primarily to drug wholesalers and retailers, hospitals, government agencies and managed health care providers, such as health maintenance organizations, pharmacy benefit managers and other institutions. The Vaccines segment includes human health vaccine products marketed either directly or through a joint venture. These products consist of preventative pediatric, adolescent and adult vaccines, primarily administered at physician offices. MERCK & CO: Faces Vioxx-Related Class Lawsuit in California ----------------------------------------------------------- Merck & Co., Inc., is facing a purported Vioxx-related class- action lawsuit that was brought on behalf of California third- party payors and end-users. The purported class-action lawsuit was filed in California state court. It is seeking class certification of California third- party payors and end-users. The parties are engaged in class certification discovery and briefing, 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. Merck & Co., Inc. -- http://www.merck.com/-- is a global research-driven pharmaceutical company that discovers, develops, manufactures and markets a range of products to improve human and animal health. The company's operations are principally managed on a products basis and comprises of two business segments: the Pharmaceutical segment and the Vaccines segment. The Pharmaceutical segment includes human health pharmaceutical products marketed either directly or through joint ventures. Merck sells these human health pharmaceutical products primarily to drug wholesalers and retailers, hospitals, government agencies and managed health care providers, such as health maintenance organizations, pharmacy benefit managers and other institutions. The Vaccines segment includes human health vaccine products marketed either directly or through a joint venture. These products consist of preventative pediatric, adolescent and adult vaccines, primarily administered at physician offices. MERCK & CO: New Jersey Court Denies Motion in ERISA Suits MDL ------------------------------------------------------------- The U.S. District Court for the District of New Jersey denied a Motion for Leave to Supplement the Amended Complaint in several lawsuits consolidated in the multidistrict litigation captioned "Merck & Co., Inc., Securities Derivative and ERISA Litigation (MDL No. 1658), Case No. 3:05-cv-01151-SRC-TJB." Initially, various putative class-action lawsuits were filed in federal court under the Employee Retirement Income Security Act against the company and certain current and former officers and directors. The suits have been transferred to the multidistrict litigation in the U.S. District Court for the District of New Jersey, under the caption "Merck & Co., Inc., Securities Derivative and ERISA Litigation, Case No. 3:05-cv-01151-SRC-TJB," and consolidated there for all purposes. The consolidated complaint asserts claims on behalf of certain of the company's current and former employees who are participants in certain of its retirement plans for breach of fiduciary duty. On July 11, 2006, Judge Stanley R. Chesler granted in part and denied in part the defendants' motion to dismiss the ERISA complaint. In October 2007, the plaintiffs moved for certification of a class of individuals who were participants in and beneficiaries of the company's retirement savings plans at any time between Oct. 1, 1998, and Sept. 30, 2004, and whose plan accounts included investments in the Merck Common Stock Fund and Merck common stock. That motion is pending. On April 16, 2008, the plaintiffs filed a Motion for Leave to Supplement the Amended Complaint to add allegations relating to Vytorin and seeking to add additional defendants, including Richard T. Clark and additional members of the Board of Directors. The court denied the motion in May 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 "Merck & Co., Inc., Securities Derivative and ERISA Litigation, (MDL No. 1658) Case No. 3:05-cv-01151-SRC-TJB," filed in the U.S. District Court for the District of New Jersey, Judge Stanley R. Chesler, presiding. Representing the plaintiffs are: Paul B. Brickfield, Esq. (pbrickfield@bricdonlaw.com) Brickfield & Donahue 70 Grand Avenue River Edge, NJ 07661 Phone: 201-488-7707 - and - Irma Lois Bradley-Klein, Esq. Lemmon Law Firm, LLC 650 Poydras St. Suite 2335 New Orleans, LA 70130 Phone: 985-783-6789 Fax: 985-783-1333 Representing the defendants are: Edward Cerasia II, Esq. (ecerasia@proskauer.com) Proskauer Rose LLP One Newark Center, 18th floor Newark, NJ 07102-5211 Phone: 973-274-3200 - and - John N. Poulous, Esq. (poulos@hugheshubbard.com) Hughes Hubbard & Reed LLP 101 Hudson St. Suite 3601 Jersey City, NJ 07302-3918 Phone: 201-536-9220 MERCK & CO: N.J. Supreme Court Dismisses "Sinclair" Lawsuit ----------------------------------------------------------- The New Jersey Supreme Court dismissed the putative class-action lawsuit captioned "Sinclair v. Merck," which was filed against Merck & Co., Inc., claiming an entitlement to medical monitoring for Vioxx users, 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 case was originally filed in December 2004 and sought the creation of a medical monitoring fund. It is a purported class- action suit against Merck & Co., the manufacturer of Vioxx, on behalf of Vioxx users who had taken the drug for at least six consecutive weeks (Class Action Reporter, Oct. 9, 2007). The plaintiffs brought claims based on negligence, the New Jersey Product Liability Act, the New Jersey Consumer Fraud Act, and breach of warranty. The plaintiffs did not claim that they had been injured by taking Vioxx, but rather, alleged that as a result of "direct and prolonged exposure to Vioxx," they "have an enhanced risk of sustaining serious, undiagnosed and unrecognized myocardial infarctions (UMIs) that . . . would subject them to the risk of further, significant, long-term cardiovascular harm." As a remedy, the plaintiffs asked that Merck be ordered to pay for a medical-screening program to detect UMIs and other "latent or unrecognized injuries." Judge Carol E. Higbee of the Superior Court of New Jersey, Atlantic County, dismissed the medical-monitoring claim, finding that although claims had been recognized in the toxic tort context, they were not sustainable in the products liability context. On Sept. 28, 2006, the New Jersey Superior Court, Appellate Division, heard arguments on the plaintiffs' appeal of Judge Higbee's dismissal of the claim. On Jan. 16, 2007, the Appellate Division reversed the decision and remanded the case back to Judge Higbee for further factual inquiry. On April 4, 2007, the New Jersey Supreme Court granted the company's petition for review of the Appellate Division's decision. The issue was later on appeal to the New Jersey Supreme Court, which heard arguments on Oct. 22, 2007. On June 4, 2008, the New Jersey Supreme Court reversed the Appellate Division and dismissed the case on the grounds that the plaintiffs had not alleged that they suffered any physical injury. Merck & Co., Inc. -- http://www.merck.com/-- is a global research-driven pharmaceutical company that discovers, develops, manufactures and markets a range of products to improve human and animal health. The company's operations are principally managed on a products basis and comprises of two business segments: the Pharmaceutical segment and the Vaccines segment. The Pharmaceutical segment includes human health pharmaceutical products marketed either directly or through joint ventures. Merck sells these human health pharmaceutical products primarily to drug wholesalers and retailers, hospitals, government agencies and managed health care providers, such as health maintenance organizations, pharmacy benefit managers and other institutions. The Vaccines segment includes human health vaccine products marketed either directly or through a joint venture. These products consist of preventative pediatric, adolescent and adult vaccines, primarily administered at physician offices. MERCK & CO: Seeks Review of Certification Ruling in Mo. Lawsuit --------------------------------------------------------------- Merck & Co., Inc., is seeking a review of a decision that certified a class in the lawsuit purportedly brought on behalf of individual purchasers or users of Vioxx claiming reimbursement of alleged economic loss. On June 12, 2008, a Missouri state court certified a class of Missouri plaintiffs, seeking reimbursement for out-of-pocket costs relating to Vioxx. The plaintiffs do not allege any personal injuries from taking Vioxx. The company filed a petition for interlocutory review on June 23, 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. Merck & Co., Inc. -- http://www.merck.com/-- is a global research-driven pharmaceutical company that discovers, develops, manufactures and markets a range of products to improve human and animal health. The company's operations are principally managed on a products basis and comprises of two business segments: the Pharmaceutical segment and the Vaccines segment. The Pharmaceutical segment includes human health pharmaceutical products marketed either directly or through joint ventures. Merck sells these human health pharmaceutical products primarily to drug wholesalers and retailers, hospitals, government agencies and managed health care providers, such as health maintenance organizations, pharmacy benefit managers and other institutions. The Vaccines segment includes human health vaccine products marketed either directly or through a joint venture. These products consist of preventative pediatric, adolescent and adult vaccines, primarily administered at physician offices. MERCK & CO: Several Vioxx Product Liability Suits Still Pending --------------------------------------------------------------- Merck & Co., Inc., is still facing several purported class- action lawsuits, alleging personal injury and economic loss with respect to the purchase or use of Vioxx, 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. Initially, several individual and putative class-action suits were filed against the company in state and federal courts. All such actions filed in federal court are coordinated in a multidistrict litigation in the U.S. District Court for the Eastern District of Louisiana before Judge Eldon E. Fallon. A number of such actions filed in state court are coordinated in separate coordinated proceedings in state courts in New Jersey, California and Texas, and the counties of Philadelphia, Pennsylvania and Washoe and Clark Counties, Nevada. As of June 30, 2008, the company had been served or was aware that it had been named as a defendant in approximately 13,750 lawsuits, which include approximately 31,750 plaintiff groups, alleging personal injuries resulting from the use of Vioxx, and in approximately 249 putative class actions alleging personal injuries and economic loss. All of these actions are collectively referred to as the "Vioxx Product Liability Lawsuits." Of these lawsuits, approximately 9,225 lawsuits representing approximately 24,000 plaintiff groups are or are slated to be in the multidistrict litigation and approximately 2,675 lawsuits representing approximately 2,675 plaintiff groups are included in a coordinated proceeding in the New Jersey Superior Court before Judge Carol E. Higbee. Merck & Co., Inc. -- http://www.merck.com/-- is a global research-driven pharmaceutical company that discovers, develops, manufactures and markets a range of products to improve human and animal health. The company's operations are principally managed on a products basis and comprises of two business segments: the Pharmaceutical segment and the Vaccines segment. The Pharmaceutical segment includes human health pharmaceutical products marketed either directly or through joint ventures. Merck sells these human health pharmaceutical products primarily to drug wholesalers and retailers, hospitals, government agencies and managed health care providers, such as health maintenance organizations, pharmacy benefit managers and other institutions. The Vaccines segment includes human health vaccine products marketed either directly or through a joint venture. These products consist of preventative pediatric, adolescent and adult vaccines, primarily administered at physician offices. MF GLOBAL: Faces Consolidated Securities Fraud Lawsuit in N.Y. -------------------------------------------------------------- MF Global, Ltd., Man Group plc, certain of its current and former officers and directors, and certain underwriters for the IPO are facing a consolidated securities fraud lawsuit in New York, according to the company's Aug. 13, 2008 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2008. Initially, five purported class-action lawsuits were filed in the U.S. District Court for the Southern District of New York. These actions, which purport to be brought as class-actions on behalf of purchasers of MF Global stock between the date of the IPO and Feb. 28, 2008, seek to hold defendants liable under Section 11, 12, and 15 of the U.S. Securities Act of 1933 for alleged misrepresentations and omissions related to the company's risk management and monitoring practices and procedures. The five purported shareholder class-actions have been consolidated for all purposes into a single action. The consolidated suit is "Rubin v. MF Global, Ltd. et al, Case No. 1:08-cv-02233-VM," filed in the U.S. District Court for the Southern District of New York, Judge Victor Marrero, presiding. Representing the plaintiffs are: Richard Adam Acocelli, Jr., Esq. (racocelli@weisslurie.com) Weiss & Lurie The Fred French Building 551 Fifth Avenue New York, NY 10176 Phone: 212-682-3025 Fax: 212-682-3010 - and - William J. Ban, Esq. (wban@barrack.com) Barrack, Rodos & Bacine Two Commerce Square 2001 Market Street, Suite 3300 Philadelphia, PA 19103 Phone: 215-963-0600 Fax: 215-963-0838 Representing the defendants are: David B. Anders, Esq. (dbanders@wlrk.com) Wachtell, Lipton, Rosen & Katz 51 West 52nd Street New York, NY 10019 Phone: 212-403-1000 Fax: 212-403-2000 - and - David A. Barrett, Esq. (dbarrett@bsfllp.com) Boies, Schiller & Flexner, LLP 333 Main St. New York, NY 10504 Phone: 212-446-2310 Fax: 212-446-2350 MF GLOBAL LTD: Faces Securities Fraud Lawsuit in New York --------------------------------------------------------- MF Global Ltd. and certain of the company's executive officers and directors have been named as defendants in a purported class-action lawsuit filed in the U.S. District Court for the Southern District of New York, according to the company's Aug. 13, 2008 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2008. This action, which purports to be brought as a class-action suit on behalf of purchasers of MF Global stock between March 17, 2008 and June 20, 2008, seeks to hold defendants liable under Sections 10 and 20 of the U.S. Securities Exchange Act of 1934 for alleged misrepresentations and omissions related to the company's financial results and projections and capital structure. MF Global Ltd. -- http://www.mfglobal.com/-- is a broker of exchange-listed futures and options. It provides execution and clearing services for exchange-traded and over-the-counter (OTC), derivative products, as well as for non-derivative foreign exchange products and securities in the cash market. It provides its clients with access to many of the financial markets worldwide. MF Global provides its clients with three primary types of products: exchange-traded derivatives, OTC derivatives and cash products. It provides these services through dedicated broker teams focused on particular markets. OPTIONABLE INC: Seeks Dismissal of Securities Lawsuits in N.Y. -------------------------------------------------------------- Optionable, Inc., is seeking the dismissal of a consolidated shareholder lawsuit entitled "In re Optionable Securities Litigation, Case 07 CV 3753 (LAK)," which is pending before the U.S. District Court for the Southern District of New York. On May 11, 2007, two lawsuits were initially filed before the U.S. District Court for the Southern District of New York. They are: -- "Alexander Fleiss v. Optionable Inc., Mark Nordlicht, Kevin Cassidy, Edward J. O'Connor, Albert Helmig and Marc-Andre Boisseau, Case No. 07 CV 3753 (LAK)," and -- "Robert Rastocky v. Optionable, Inc., Kevin Cassidy and Edward O'Connor, Case No. 07 CV 3755 (CLB)," Subsequently, five additional lawsuits were filed in the U.S. District Court for the Southern District of New York: 1. "Jagdish Patel v. Optionable Inc., Kevin Cassidy, and Edward J. O'Connor, Case No. 07 CV 3845 (LAK)," filed on May 16, 2007; 2. "Peters v. Optionable, Inc., Mark Nordlicht, Kevin P. Cassidy, Edward J. O'Connor, Albert Helmig, and Marc- Andre Boisseau, Case No. 07 CV 3877 (LAK)," filed on May 17, 2007; 3. "Manowitz v. Optionable Inc., Kevin Cassidy, Edward J. O'Conner, and Mark Nordlicht, Case No. 07 CV 3884 (UA)," filed on May 17, 2007; 4. "Glaubach v. Optionable Inc., Kevin Cassidy, Mark Nordlicht, Edward J. O'Connor, Albert Helmig, and Marc-Andre Boisseau, Case No. 07 CV 4085 (LAK)," filed on May 24, 2007; and 5. "Bock v. Optionable Inc., Kevin Cassidy, Mark Nordlicht, Edward J. O'Connor, Albert Helmig, and Marc-Andre Boisseau, Case No. 07 CV 5948 (LAK)," filed on June 22, 2007. Each of the lawsuits names the company as a defendant and some of the lawsuits name as defendants all or certain of the directors and officers of the company. The directors and officers of the company that were named as defendants include: * Mark Nordlicht, former Chairman of the Board of Directors of the Company; * Kevin Cassidy, former Chief Executive Officer and Vice- Chairman of the Board of Directors of the Company; * Edward J. O'Connor, President of the Company and member of the Board of Directors; * Albert Helmig, a member of the Board of Directors during the relevant time period; and * Marc-Andre Boisseau, the Chief Financial Officer of the Company. By order dated May 24, 2007, the Rastocky matter was voluntarily dismissed. By Orders dated June 20 and July 3, 2007, the Fleiss, Patel, Peters, Manowitz, and Glaubach cases were consolidated under the caption, "In re Optionable Securities Litigation, Case 07-CV- 3753 (LAK)." By Order Nov. 20, 2007, Judge Kaplan granted the motion of KLD Investment Management, LLC, to serve as lead plaintiff and approved its choice of counsel, Kahn Gauthier Swick, LLC. On Jan. 17, 2008, the lead plaintiff filed a consolidated amended class action complaint. The complaint seeks unspecified damages arising from alleged violations of the federal securities laws, including the U.S. Securities Exchange Act of 1934, 15 U.S.C. ss. 78a et seq., and Rule 10b-5 under the Exchange Act, 17 C.F.R. ss. 240.10b -5. The complaint alleges, among other things, that during the class period of Jan. 22, 2007, to May 14, 2007, defendants failed to disclose certain information in public filings and statements, made materially false and misleading statements and misrepresentations in public filings and statements, sold artificially inflated stock and engaged in improper deals, had an improper relationship with and "schemed" with its customer Bank of Montreal, and understated the company's reliance on its relationship with BMO. The complaint alleges that while the company's stock was trading at artificially inflated prices, certain defendants sold shares of common stock of the company. On Feb. 15, 19, and 20, 2008, the company and the individual defendants filed motions to dismiss the complaint, which motions were opposed by the plaintiffs. On April 3, 2008, Judge Kaplan ordered the individual defendants to file only a single joint reply memorandum in response to the plaintiffs' oppositions. Thus, in April 2008, the company filed its reply memorandum of law in support of its motion to dismiss the complaint, and the individual defendants filed their joint reply memorandum of the same. The company reported no further development regarding the matter in its Aug. 13, 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 Optionable Securities Litigation, Case 07 CV 3753 (LAK)," filed in the U.S. District Court for the Southern District of New York, Judge Lewis A. Kaplan, presiding. Representing the plaintiffs are: Mario Alba, Jr., Esq. (malba@csgrr.com) Coughlin, Stoia, Geller, Rudman & Robbins, LLP 58 South Service Road, Suite 200 Melville, NY 11747 Phone: 631-367-7100 Fax: 631-367-1173 - and - Jeffrey Philip Campisi, Esq. (jcampisi@kaplanfox.com) Kaplan Fox & Kilsheimer LLP 850 Third Avenue, 14th Floor New York, NY 10022 Phone: 212-687-1980 Fax: 212-687-1980 Representing the defendants are: Michael G. Bongiorno, Esq. (michael.bongiorno@wilmerhale.com) Wilmer Cutler Pickering Hale & Dorr L.L.P. 1875 Pennsylvania Avenue, Nw Washington, DC 20006 Phone: 212-230-8800 Fax: 212-230-8888 - and - Paul Edouard Dans, Esq. (pdans@eapdlaw.com) Edwards Angell Palmer & Dodge, LLP 750 Lexington Avenue New York, NY 10022 Phone: 212-912-2736 Fax: 212-308-4844 OSB LITIGATION: Settles Five OSB-Related Price-Fixing Lawsuits -------------------------------------------------------------- BOSTON, Oct. 1, 2008 -- A federal District Court in the Eastern District of Pennsylvania has granted preliminary approval to five class action settlements on behalf of persons and entities who, as end users, indirectly purchased for their own use, and not for resale, new Oriented Strand Board ("OSB") manufactured and sold by one or more of the following manufacturers in the United States from June 1, 2002 through August 4, 2008: -- Louisiana-Pacific Corp. ("LP"), -- Weyerhaeuser Company ("Weyerhaeuser"), -- Georgia-Pacific LLC f/k/a Georgia-Pacific Corp. ("GP"), -- Potlatch Corp. ("Potlatch"), -- Ainsworth Lumber Co. Ltd. ("Ainsworth"), -- Norbord Industries Inc. ("Norbord"), -- Tolko Industries, Ltd. ("Tolko"), and -- J.M. Huber Corp. and -- Huber Engineered Woods LLC ("Huber") (collectively the "Defendant Manufacturers"). Defendant Manufacturers LP, Weyerhaeuser, Potlatch, Norbord and Tolko recently entered into settlements that were preliminarily approved by the Court. The Court had previously granted final approval to settlements with GP, Ainsworth and Huber. Each of the Defendant Manufacturers denies any wrongdoing in the case. Further details regarding settlement can be found at: http://www.OSBnotice.com/ PARK CREST: Unfinished Condominium Units Prompt Virgina Lawsuit --------------------------------------------------------------- Park Crest Building 4 Associates is facing a class-action complaint filed in the U.S. District Court for the Eastern District of Virginia alleging it failed to complete condos and refused to refund down payments, CourtHouse News Service reports. According to the complaint, Park Crest Building 4 Associates, LLC, marketed the units in the Park Crest condominium complex using many means and instrumentalities of interstate commerce and the U.S. Mails and is therefore the project has always been subject to the provisions of Interstate Land Sales Full Disclosure Act, 15 U.S.C. 1701, et sec. (ILSA). Park Crest Building 4 Associates, LLC, claims that the sales of units in Park Crest condominium complex are exempt from certain provisions of 1LSA, and for that reason this Court lacks subject matter jurisdiction to hear and decide this case, the complaint states. The lack of such an exemption, and therefore the existence of jurisdiction in this Court, will therefore be set forth here, to show jurisdiction. Because documents are attached to this Complaint, some provisions of which are not binding on Plaintiffs, some explanation of those will be included. The Contract for the purchase of the majority of the units in Park Crest condominium complex provided for settlement within 24 months of a date later than the date of execution of the contract by the purchaser. The purchase contracts for all other units in the project provided for settlement within 36 months of a date described in those contracts. Park Crest Building 4 Associates, LLC. claims exemption from the Act for contracts referring to a settlement within 24 months such as the contract of the plaintiffs, based upon a provision in the Act that is called the "two year rule." The plaintiffs request that the Court: a. take jurisdiction of this cause and make the Defendants and any other necessary persons parties defendant. b. enter its declaratory judgment declaring that the Contracts entered into by the named Plaintiffs and the remainder of the class were obtained in violation of ILSA and by reason of violation of the Virginia Property Owners Association Act and are void. c. enter its order requiring Defendant Park Crest Building 4 Associates, LLC to pay Plaintiffs and the members of the class the amount of money .hat was deposited by each such purchaser, without deduction, together with all interest earned on each such deposit and requiring the Defendant to pay the costs and reasonable attorney fees of Plaintiffs and the class for bringing and prosecuting this action to a conclusion d. enjoining Defendant Park Crest Building 4 Associates, LLC from initiating or prosecuting any suit against any named Plaintiff or any member of the Class, except by way of a counterclaim in this case. e. award to Plaintiffs and the Class its judgment under Count One against Defendants Park Crest Building 4 Associates, LLC, jointly and severally, in the amount of the compensatory and consequential damages proven at trial to have been proximately caused to Plaintiffs and the Class by the violations complained of herein, not less than $100,000.00 for each Plaintiff, together with the costs incurred and their attorney fees. f. award to Plaintiffs and the Class its judgment under Count Two against Defendants Park Crest Building 4 Associates, LLC, jointly and severally, in the amount of the compensatory and consequential damages proven at trial to have been proximately caused to Plaintiffs and the Class by the violations complained of in Count Two together with the costs incurred in bringing this suit. g. award to Plaintiffs and the Class its judgment under Count Three against Defendants Park Crest Building 4 Associates, LLC, jointly and severally, in the amount of the compensatory and consequential damages proven at trial to have been proximately caused to Plaintiffs and the Class by the violations complained of in Count two together with the costs incurred in bringing this suit and their reasonable attorney fees. The suit is "Cook, et al. v. Park Crest Building 4 Associates, LLC, Case Number: 1:2008cv01018," filed in the U.S. District Court for the Eastern District of Virginia, Judge Leonie M. Brinkema, presiding, with referral to Magistrate Judge Ivan D. Davis. Representing the plaintiffs is: Henry St. John Fitzgerald, Esq. (hstjfl@aol.com) 2200 Wilson Boulevard, Suite 800 Arlington, VA 2220 Phone: 703-525-8753 Fax: 703-525-2489 PZENA INVESTMENT: Consolidated Securities Suit Pending in N.Y. -------------------------------------------------------------- Pzena Investment Management, Inc., is still facing a consolidated securities fraud lawsuit before the U.S. District Court for the Southern District of New York. On Nov. 21, 2007, and Jan. 16, 2008, substantively identical putative class-action suits were commenced against the company and Richard S. Pzena, its chief executive officer, seeking remedies under Section 11 of the U.S. Securities Act of 1933, as amended. The court consolidated the lawsuits and appointed co-lead plaintiffs who filed a consolidated amended complaint. The consolidated amended complaint names as defendants the company, Mr. Pzena, and two of the underwriters of the company's initial public offering -- Goldman Sachs & Co., Inc. and UBS Securities LLC. The plaintiffs seek to represent a class of all persons who purchased or otherwise acquired Class A common stock issued pursuant or traceable to the company's IPO. The consolidated amended complaint alleges that the registration statement and prospectus relating to the IPO of the company's Class A common stock contained material misstatements and omissions and wrongfully failed to disclose net redemptions in the John Hancock Classic Value Fund for which the company acts as sub-investment advisor. The consolidated amended complaint seeks damages in an unspecified amount including rescission or rescissory damages. The company reported no further development regarding the matter in its Aug. 13, 2008 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2008. The suit is "Lowinger v. Pzena Investment Management, Inc., et al., Case No. 1:07-cv-10524-AKH," filed in the U.S. District Court for the Southern District of New York, Judge Alvin K. Hellerstein, presiding. Representing the plaintiffs are: Jeffrey Simon Abraham, Esq. (jabraham@aftlaw.com) Abraham Fruchter & Twersky LLP One Penn Plaza, Suite 1910 New York, NY 10119 Phone: 212-279-5050 Fax: 212-279-3655 - and - Catherine A. Torell, Esq. (ctorell@cmht.com) Cohen, Milstein, Hausfeld & Toll, P.L.L.C. 150 East 52nd Street, 30th Floor New York, NY 10022 Phone: 212-838-7797 Fax: 212-838-7745 Representing the defendants are: Brian Howard Polovoy, Esq. (bpolovoy@shearman.com) Shearman & Sterling LLP 599 Lexington Avenue New York, NY 10022 Phone: 212-848-4000 Fax: 212-848-7179 - and - Eric Foster Leon, Esq. (eleon@kirkland.com) Kirkland & Ellis LLP 153 East 53rd Street New York, NY 10022 Phone: 212-446-4731 Fax: 212-446-4900 SC JOHNSON: Windex Label Is 'Greenwash,' Wis. Lawsuit Alleges ------------------------------------------------------------- SC Johnson & Son Inc., which makes Windex, is facing a class- action complaint filed in the U.S. District Court for the Eastern District of Wisconsin alleging it deceptively labels it with a "Greenlist" logo that touts its "environmentally responsible ingredients," CourtHouse News Service reports. This is a proposed class action against SC Johnson for misleading consumers about the environmental safety of its leading household cleaning product Windex. The plaintiffs say SC Johnson made up the "Greenlist" itself, and the product is not friendly at all, but contains a chemical that could kill children or animals if they drink it. The plaintiffs say Windex contains ethyl glycol n-hexyl ether, which is particularly dangerous to little kids and animals because it's sweet. "The type of deception engaged in by defendant here is become so rampant that the term 'Greenwash' has been coined to describe this type of conduct," the complaint states. The plaintiffs bring this action as a nationwide class action pursuant to Rule 23 of the Federal Rules of Civil Procedure on behalf of all persons who purchased any Windex product bearing the Greenlist label during the period Jan. 16, 2008, to the present. The plaintiffs want the court to rule on: (a) whether the defendant labeled, marketed, advertised and sold its Windex products to plaintiff and those similarly situated using false, misleading and deceptive statements or representations, including statements or representations concerning the environmental soundness of Windex; (b) whether the defendant misrepresented material facts in connection with the sales of its Windex products; (c) whether the defendant participated in and pursued the common course of conduct complained of; (d) whether the defendant's labeling, marketing, advertising and selling of its Windex products with a Greenlist label constitutes an unfair or deceptive consumer sales practice; and (e) whether the defendant was unjustly enriched. The plaintiffs request for judgment: -- declaring this action to be a proper class action pursuant to FRCP 23 of a class of all persons who purchased Windex products bearing the Greenlist label during the class period and appointing named plaintiff as representative of the class and his counsel as class counsel; -- awarding the members of the class compensatory damages in an amount in excess of $5 million and all monetary relief referenced in the complaint; -- ordering defendant to pay restitution to plaintiffs and members of the class an amount that is the equivalent of the amount acquired by means of any unfair, deceptive, fraudulent, unconscionable, or negligent act as referenced in the complaint; -- ordering defendant to disgorge any ill-gotten benefits received from plaintiff and members of the class as a result of defendant's false, deceptive or misleading labeling, marketing and advertising of its Windex Greenlist labeled products; -- awarding reasonable costs and attorneys' fees; -- awarding applicable pre-jdugment or post-judgment interest; and -- awarding such equitable/injunctive or other relief as the court may deem just and proper. The suit is "Howard Petlack, et al. v. SC Johnson & Son, Inc., Case No. 2:08-cv-00820-CNC," filed in the U.S. District Court for the Eastern District of Wisconsin. Representing the plaintiffs is: Michael R. Reese, Esq. Reese Richman LLP 875 Sixth Avenue, 18th Floor New York, NY 10001 Phone: 212-579-4625 Fax: 212-253-4272 WAUKESHA ENGINE: Racial Discrimination Alleged in Wis. Lawsuit -------------------------------------------------------------- Oct. 1, 2008 -- Seven African-American plaintiffs filed a class action lawsuit in the U.S. District Court for the Eastern District of Wisconsin against a Waukesha Engines, alleging the firm engaged in racial discrimination. The employees sued Waukesha Engine, which employs about 1,000 people, and its corporate parent, Texas-based Dresser Inc., the lawsuit says. The lead plaintiff, Derrick Reed, alleges he was denied employment last year because of his race. He first filed a complaint with U.S. Equal Employment Opportunity Commission. Other plaintiffs in the lawsuit are current or former employees who allege they were not treated the same as white employees because of their race. They are Khaleelal Ali, Christopher Boyd, Corey Dainty, Herman Davis, Valerie Langston and Gary Roundtree. The 31-page complaint alleges that only 1% to 2% of the plant's work force is African-American, despite drawing from a much more diverse work force pool. The plant operates several all-white departments, and no African-American women have ever been assigned to the assembly area. The company refuses to implement diversity and cultural sensitivity training. Mr. Dainty was the first-ever African-American supervisor at the plant but said he was denied promotion, management support and pay increases based on his race. The suit is "Reed et al. v. Waukesha Engines and Dresser Inc., Case Number: 2:2008cv00818," filed in the U.S. District Cort for the Eastern District of Wisconsin, Judge Lynn Adelman, presiding. New Securities Fraud Cases CANADIAN IMPERIAL: Brower Piven Files Securities Suit in N.Y. ------------------------------------------------------------- BALTIMORE, Maryland, Oct. 1, 2008 -- Brower Piven, A Professional Corporation commenced a class action lawsuit in the United States District Court for the Southern District of New York on behalf of purchasers of the securities of Canadian Imperial Bank of Commerce on the New York Stock Exchange, and all U.S. purchasers of the securities of CIBC during the period between May 31, 2007, and May 28, 2008, inclusive. The complaint charges CIBC and certain of its officers and directors with violations under the Securities Exchange Act of 1934. No class has yet been certified in the above action. The complaint alleges that the statements contained in CIBC's press releases, SEC filings, conference calls and presentations during the Class Period failed to disclose that the Company did not make timely disclosure of material changes affecting the valuation of its investments in collateralized debt obligations consisting of U.S. subprime mortgages, in violation of U.S. Generally Accepted Accounting Principles ("GAAP"), that the Company's hedged subprime exposure was nearly four times larger than its unhedged subprime exposure, and that 35% of the Company's hedged subprime exposure was entrusted with a substantially undercapitalized financial guarantor. The complaint further alleges that on December 6, 2007, CIBC released fourth quarter results revealing a large exposure to the troubled U.S. housing market, that its write-downs had already reached $1 billion, and that there was a risk of significantly higher losses related to hedged exposure to the subprime mortgage and CDO market. The complaint also alleges that this news caused the value of the Company's shares to decline significantly. Interested parties may move the court no later than November 18, 2008, for lead plaintiff appointment. For more information, contact: Charles J. Piven, Esq. Brower Piven, A Professional Corporation The World Trade Center-Baltimore 401 East Pratt Street, Suite 2525 Baltimore, MD 21202 Phone: 410-332-0030 e-mail: hoffman@browerpiven.com Web site: http://www.browerpiven.com/ NEXTWAVE WIRELESS: Brower Piven Files Securities Suit in Calif. --------------------------------------------------------------- BALTIMORE, Md., Oct. 1, 2008 -- Brower Piven, A Professional Corporation filed a class action lawsuit in the United States District Court for the Southern District of California on behalf of purchasers of the common stock of NextWave Wireless Inc. during the period between March 30, 2007, and August 7, 2008, inclusive. The complaint charges NextWave and certain of its officers and directors with violations under the Securities Exchange Act of 1934. The complaint alleges that during the Class Period, defendants issued materially false and misleading statements regarding the Company's business and financial results. According to the complaint, the defendants concealed from the investing public during the Class Period: -- that NextWave did not have adequate sources of liquidity to continue operations as it executed its growth strategy and continued making aggressive worldwide acquisitions; -- that defendants had no reasonable basis to make favorable statements that the Company's WiMAX semiconductor products would be available for commercial sale in the first half of 2008; -- that NextWave did not have the financial resources to continue to operate its world-wide operations through the end of 2008; -- that the Company had invested all of its marketable securities in extremely high-risk and illiquid auction rate securities; and -- that the Company's ability to continue as a going concern was seriously in question. The complaint further alleges that on August 7, 2008, announced it only had $71.1 million in cash and similar instruments available as of June 30, 2008, that would last only until the beginning of October 2008. As a result of the foregoing announcement, the value of the Company's shares declined significantly. Interested parties may move the court no later than November 17, 2008, for lead plaintiff appointment. For more information, contact: Charles J. Piven, Esq. Brower Piven, A Professional Corporation The World Trade Center-Baltimore 401 East Pratt Street, Suite 2525 Baltimore, MD 21202 Phone: 410-332-0030 e-mail: hoffman@browerpiven.com Web site: http://www.browerpiven.com/ NOVATEL WIRELESS: Brower Piven Files Securities Suit in Calif. -------------------------------------------------------------- BALTIMORE, Maryland, Oct. 1, 2008 -- Brower Piven, A Professional Corporation discloses that a class action lawsuit has been commenced in the United States District Court for the Southern District of California on behalf of purchasers of the common stock of Novatel Wireless, Inc., during the period between February 5, 2007, and August 19, 2008, inclusive. The complaint charges Novatel and certain of its officers and directors with violations under the Securities Exchange Act of 1934. The complaint alleges that during the Class Period defendants failed to disclose that the Company was recognizing revenue in violation of its own revenue cut-off procedures and Generally Accepted Accounting Principles, thus rendering the Company's publicly reported financial results materially false. The complaint further alleges that defendants also misrepresented the status of an internal accounting review by the Company's Audit Committee and that on May 13, 2008, defendants indicated that the Company was unable to file its Form 10-Q with the SEC on time because of a review of a single customer contract which they represented was substantially completed when, in fact, on August 19, 2008, the defendants admitted that the review was still ongoing, that it involved at least six transactions representing $9.1 million in revenue, and that when the review was completed a decision would be made as to whether a restatement would be required. The complaint goes on to allege that as a result of the foregoing, the value of the Company's shares declined substantially. Interested parties may move the court no later than November 17, 2008, for lead plaintiff appointment. For more information, contact: Charles J. Piven, Esq. Brower Piven, A Professional Corporation The World Trade Center-Baltimore 401 East Pratt Street, Suite 2525 Baltimore, MD 21202 Phone: 410-332-0030 e-mail: hoffman@browerpiven.com Web site: http://www.browerpiven.com/ OSHKOSH CORP: Brower Piven Files Wisconsin Securities Fraud Suit ---------------------------------------------------------------- BALTIMORE, Maryland, Oct. 1, 2008 -- Brower Piven, A Professional Corporation commenced a class action lawsuit in the United States District Court for the Eastern District of Wisconsin on behalf of purchasers of the common stock of Oshkosh Corporation during the period between November 1, 2007, and June 25, 2008, inclusive. The complaint charges Oshkosh and certain of its officers and directors with violations under the Securities Exchange Act of 1934. The complaint alleges that, during the Class Period, defendants materially misled the investing public, thereby inflating the price of Oshkosh's common stock, by publicly issuing materially false and misleading statements and omitting to disclose material facts necessary to make defendants' statements not false and misleading. As alleged in the complaint, the Company failed to disclose during the Class Period that synergies related to Oshkosh's European facility rationalization program for its refuse business, the Geesink Norba Group, were lower and the cost of such rationalization was higher than represented; that the value of Oshkosh's European refuse business was overstated and should have been written down; that Oshkosh's JLG access-equipment division was experiencing a dramatic decrease in demand; and that Oshkosh lacked any reasonable basis to maintain its financial guidance for fiscal 2008. The complaint further alleges that on June 26, 2008, Oshkosh announced that it was revising downwards estimates for its third quarter and full fiscal 2008 financial results after which announcement the value of the Company's shares declined significantly. Interested parties may move the court no later than November 18, 2008, for lead plaintiff appointment. For more information, contact: Charles J. Piven, Esq. Brower Piven, A Professional Corporation The World Trade Center-Baltimore 401 East Pratt Street, Suite 2525 Baltimore, MD 21202 Phone: 410-332-0030 e-mail: hoffman@browerpiven.com Web site: http://www.browerpiven.com/ QUEST RESOURCE: Howard Smith Files Okla. Securities Fraud Suit -------------------------------------------------------------- BENSALEM, Pa., Oct. 1, 2008 -- Law Offices of Howard G. Smith, representing investors of Quest Resource Corporation and Quest Energy Partners, L.P., has filed a securities class action lawsuit on behalf of all persons who purchased the common units of Quest Energy Partners L.P. pursuant and traceable to the Company's Registration Statement and Prospectus issued in connection with the Company's Initial Public Offering (the "IPO") on November 7, 2007, through August 25, 2008, and on behalf all persons who purchased the securities of Quest Resource Corporation (Nasdaq:QRCP) between May 2, 2005, and August 25, 2008. The class action lawsuit was filed in the United States District Court for the Western District of Oklahoma. The Complaint charges Quest Energy and its parent company, Quest Resource, among others, with violations of federal securities laws. Quest Resource is engaged in the exploration, development, production and transportation of natural gas. Quest Energy is the gas and oil production operation arm of Quest Resource and engages in the acquisition, exploitation and development of oil and natural gas properties. The Complaint alleges that throughout the Class Period defendants knew or recklessly disregarded that their public statements concerning Quest Resource's and Quest Energy's business and operations were materially false and misleading. Specifically, the Complaint alleges that defendants failed to disclose that the related party transactions, which existed at the time of Quest Energy's IPO, between Quest Energy and Rockport Energy -- an entity controlled by Quest Energy's chief executive officer -- in violation of Generally Accepted Accounting Principles and SEC regulations. These failures by defendants caused Quest Resource's disclosures on related party transactions to be materially incomplete and false. On August 25, 2008, the Company announced, among other things, the resignation of its CEO, Jerry Cash, the formation of a Joint Special Committee to conduct an investigation of improper transfers of Company funds by Cash to Rockport Energy, and an inquiry launched by the Oklahoma Department of Securities in connection with the improper transfers. This announcement shocked the market and caused the Company's stock to fall $2.05 per share, or nearly 30%, to $4.88 per share on August 25, 2008. Interested parties may move the court no later than November 4, 2008, for lead plaintiff appointment. For more information, contact: Howard G. Smith, Esq. Law Offices of Howard G. Smith 3070 Bristol Pike, Suite 112 Bensalem, PA 19020 Phone: 215-638-4847 Toll-Free: 888-638-4847 e-mail: howardsmith@howardsmithlaw.com Web site: http://www.howardsmithlaw.com/ SPECTRANETICS CORP: Brower Piven Files Securities Suit in Colo. --------------------------------------------------------------- BALTIMORE, Md., Oct. 1, 2008 -- Brower Piven, A Professional Corporation commenced a class action lawsuit in the United States District Court for the District of Colorado on behalf of purchasers of the publicly traded securities of The Spectranetics Corporation during the period between April 19, 2007, and September 4, 2008, inclusive. The complaint charges Spectranetics and certain of its officers and directors with violations under the Securities Exchange Act of 1934. The complaint alleges that during the Class Period, defendants failed to disclose that the Company was improperly promoting its own products and the products of third parties, was improperly compensating personnel and was receiving parts from an international source in violation of customs laws. The complaint further alleges that on September 4, 2008, the Company announced that it had been served by the Food and Drug Administration and U.S. Immigration and Customs Enforcement with a search warrant issued by the United States District Court, District of Colorado requesting information and correspondence relating to the promotion, use, testing, marketing and sales of certain of the Company's products, among other things. The complaint goes on to allege that as a result of this disclosure, the value of the Company's shares declined substantially. Interested parties may move the court no later than November 24, 2008, for lead plaintiff appointment. For more information, contact: Charles J. Piven, Esq. Brower Piven, A Professional Corporation The World Trade Center-Baltimore 401 East Pratt Street, Suite 2525 Baltimore, MD 21202 Phone: 410-332-0030 e-mail: hoffman@browerpiven.com Web site: http://www.browerpiven.com/ Asbestos Alerts ASBESTOS LITIGATION: Rohrer Suit v. John Crane Filed on Sept. 22 ---------------------------------------------------------------- Regina Rohrer, on behalf of James B. Rohrer, filed an asbestos- related lawsuit against John Crane Inc. in Madison County Circuit Court, Ill., on Sept. 22, 2008, The Madison St. Clair Record reports. Mrs. Rohrer, of California, claims that her husband was diagnosed with mesothelioma on Sept. 2, 2007 and died on Nov. 12, 2007, according to the lawsuit. According to the suit, Mrs. Rohrer says her husband worked in a naval shipyard for 30 years. She says Mr. Rohrer's exposure was foreseeable and should have been anticipated by the defendants. She claims his disease was caused after he was exposed to and inhaled, ingested or otherwise absorbed asbestos fibers. Mrs. Rohrer alleges the mesothelioma caused the couple to incur substantial medical costs. Mr. Rohrer also experienced great physical pain and mental anguish as a result of the disease, Mrs. Rohrer claims in the suit. In the seven-count lawsuit, Mrs. Rohrer seeks sums in excess of US$200,000, unspecified economic damages and compensatory damages in excess of US$150,000. Mrs. Rohrer also seeks punitive damages in an amount sufficient to punish John Crane for its misconduct and to deter similarly situated parties from committing like acts of misconduct in the future. Randy L. Gori, Esq., of Gori, Julian & Associates in Alton, Ill., represents Mrs. Rohrer. ASBESTOS LITIGATION: EPA Issues Guidance to Galveston Residents --------------------------------------------------------------- In a press release dated Sept. 23, 2008, the U.S. Environmental Protection Agency gave water precautions to residents returning to Galveston, Tex. Before drinking, cooking or brushing teeth, the EPA recommends that: -- If possible, use bottled water that hasn't been exposed to floodwaters; -- If none is available, boil water. For cloudy water, filter with a cloth; draw off the clear water and boil for one minute. Then store in a clean container with a cover; -- If you can't boil water, add 1/8 of a teaspoon of household bleach for each gallon of water. Stir well, and let it stand 30 minutes before using. -- Pay attention to local authorities, who will announce when it is safe to use and drink water or flush toilets. EPA has several recorded public service announcements (PSAs) offering safety tips on how to safely operate a generator, how to properly use household cleaners, how to handle and dispose of hazardous materials, and how to safely deal with asbestos and mold, among other useful information. To listen to these PSAs or to learn more information on how to respond to disasters, please visit http://www.epa.gov/hurricane. For more information about EPA, go to http://www.epa.gov/region6. ASBESTOS LITIGATION: Flintkote Co. Employees Exposed to Asbestos ---------------------------------------------------------------- According to a report from the federal Agency for Toxic Substance and Disease Registry, employees of Flintkote Co. in Fremont, Calif., were exposed to low levels of asbestos between 1967 and 1979, The Argus reports. The ATSDR urges these employees to inform them about potential impacts they may have experienced from asbestos exposure. Former workers and their family members may contact Maria Teran- MacIver, the ATSDR's communication specialist, at 770-488-0720. The report also said that those who lived with Flintkote workers during those 12 years also were at risk because employees could have carried asbestos fibers home in their hair or clothing. The Company went bankrupt in 2004 because of asbestos-related lawsuits. The former Flintkote site, at 27975 Shinn St., now is owned by United States Gypsum as a reloading and distribution center, according to the report. It also is possible that between 1967 and 1979, dust and asbestos fibers were released into the air within a few blocks of the facility. Cancer records and death certificate information for the neighborhood reviewed by state health officials showed "scattered evidence" that the number of deaths associated with asbestos exposure is higher than expected. However, these record reviews are an imperfect tool for determining whether asbestos from the facility made people sick, according to the report. The 50-page report is available at the Fremont Main Library, 2400 Stevenson Blvd., and online at www.ehib.org/cma/projects/FlintkoteATSDRRelease.pdf. ASBESTOS LITIGATION: Living Near Factories Ups Risks, Study Says ---------------------------------------------------------------- An American Journal of Respiratory and Critical Care Medicine study published on Sept. 15, 2008 suggests that people who have ever lived near an asbestos-manufacturing facility may have an elevated risk of mesothelioma, Reuters reports. In the study, Japanese researchers found higher-than-expected death rates from mesothelioma among people who had lived near a now-closed asbestos cement pipe plant between 1957 and 1975. The risk steadily declined as residents' distance from the plant increased, with elevated mesothelioma rates seen among people living up to roughly 1.5 miles downwind of the plant. According to Dr. Norio Kurumatani and Dr. Shinji Kumagal, residents who died of mesothelioma had developed symptoms of the disease an average of 43 years after their first year living near the plant. The researchers based their findings on 35 men and 38 women who had lived near the asbestos pipe plant between 1957 and 1975 and died of mesothelioma sometime between 1995 and 2006. None had any occupational exposure to asbestos. The greatest risk was seen among men and women living within 300 meters of the plant. The death rate among women was 41 times the expected rate, while the rate among men was 14 times the expected figure. According to Dr. Kurumatani and Dr. Kumagal, the findings strongly support exposure to the asbestos plant as the cause of these mesothelioma cases. The researchers note that in 2006, Kubota Corporation, which ran the plant before it closed, established a compensation fund for people who developed asbestos-related diseases after having lived within a kilometer (1.6 miles) of the site during the time it used asbestos. Dr. Kurumatani is at the Nara Medical University School of Medicine in Kashihara, and Dr. Kumagal is affiliated with the Osaka Prefecture Institute of Public Health in Osaka. ASBESTOS LITIGATION: 90 Percent of Bedfordshire Schools at Risk --------------------------------------------------------------- Teachers say that asbestos fibers are still present in almost 90 percent of Bedfordshire, England's schools, Bedford Today reports. Asbestos was used in building materials until the late 1990s and is still present in 192 of Bedfordshire's 220 schools. Parents and teachers are now urging the all-party parliamentary sub-committee on asbestos, and local authorities, to remove the dangerous material. A spokesman for The Association of Teachers and Lecturers (ATL) said, "Putting a drawing pin into a classroom wall or slamming a classroom door could be enough to sign a death warrant." More than 100 teachers, nursery staff and education sector workers in the United Kingdom died from mesothelioma between 2001 and 2005. A report by the Government's Health and Safety Executive found a further 179 teachers in the United Kingdom died of mesothelioma between 1980 and 2000. The number of people dying from the disease each year has almost doubled since 1992. Tim Chapel, Bedfordshire County Council's head of property, said the asbestos in Bedfordshire's schools was not at a dangerous level, but admitted there have been recent cases of people dying after having been exposed to asbestos as a child. Richard Cooper, a spokesman for Bedford Hospital, confirmed there was asbestos at Bedford Hospital. He said, "A number of buildings at Bedford Hospital contain asbestos which is well managed and closely monitored in line with the 'Control of Asbestos Regulations' (Health & Safety Executive, 2006)." ASBESTOS LITIGATION: Appeals Court Junks Padilla Suit v. Pomona --------------------------------------------------------------- The Court of Appeal, Second District, Division 7, California, upheld the ruling of the Superior Court of Los Angeles County, which granted summary judgment in favor of Pomona College and Gordon & Williams General Contractor, Inc., in a lawsuit filed by Antonio Padilla. The case is styled Antonio Padilla, Plaintiff and Appellant v. Pomona College et al., Defendants and Respondents. Justices Laurie D. Zelon, Dennis M. Perluss, and Frank Y. Jackson entered judgment in Case No. B195724 on Sept. 3, 2008. Pomona hired Gordon & Williams to remodel a dormitory on its college campus. Their summary judgment motion asserted that Gordon & Williams subcontracted with TEG/LVI, Mr. Padilla's employer, for the demolition of water pipes in the basement of the dormitory. During the demolition, Mr. Padilla stood on a ladder to demolish an unpressurized cast-iron metal pipe. A portion of that pipe came loose and fell, striking a pressurized PVC pipe and breaking it. Mr. Padilla was knocked off his ladder by the gusher of water erupting from the broken PVC pipe and sustained serious physical injuries. The parties do not dispute that the PVC pipe was not to be demolished. Mr. Padilla's complaint asserted two theories, negligence and premises liability. He alleged that defendants violated their common law and statutory duties to ensure that there was no water pressure in the pipes in the area Mr. Padilla was working. Pomona and Gordon & Williams moved for summary judgment. They also moved for summary adjudication of four issues. Pomona and Gordon & Williams presented evidence that it was TEG/LVI's contractual duty to demolish pipes, asbestos, lead, and drywall, and TEG/LVI agreed to protect items that remained in the employees' work area. At the time of the accident, Mr. Padilla was using TEG/LVI tools and equipment, and was directed in his work by his TEG/LVI supervisor, Armando Takata, who according to defendant's evidence, identified to Mr. Padilla that the PVC pipe was one of the pipes that had been left pressurized. Mr. Padilla was covered by workers' compensation insurance, and has received benefits from TEG/LVI's insurance carrier. Mr. Padilla opposed the motion. The trial court granted defendants' motion on the basis that defendants had fully delegated the task of providing a safe work environment to TEG/LVI and they did not exercise any retained control in a manner that affirmatively contributed to Mr. Padilla's injuries. The Appeals Court affirmed the ruling of the Superior Court. Gordon, Edelstein, Krepack, Grant, Felton & Goldstein (Roger L. Gordon, Esq., Vincent F. Bennett, Esq., and Noah Green, Esq.) represented Anthony Padilla. Horvitz & Levy (Stephen E. Norris, Esq., Curt C. Cutting, Esq., Peder K. Batalden, Esq.), Cozen O'Connor, Esq., and Huey P. Cotton, Esq., represented Pomona College and Gordon & Williams General Contractor, Inc. ASBESTOS LITIGATION: Texas Appeals Court Rules Against Relators --------------------------------------------------------------- The Court of Appeals of Texas, Houston (First District) ruled against the relators (Ardyce Hutson, Jeanne C. Poisson, Jesse Reddick, Doylon Washington, and Gregory Hunter) in an asbestos- related lawsuit. Justices Tim Taft, Evelyn Keyes, and Jane Bland entered judgment in Case No. 01-08-00476-CV on Aug. 27, 2008. Relators' underlying cases have been consolidated for pre-trial purposes under the order of the Multi-District Litigation Panel in Asbestos Litigation, Cause No.2004-03964, in the 11th Judicial District Court of Harris County, Tex. By petition for writ of mandamus, Ms. Hutson, Ms. Poisson, Mr. Reddick, Mr. Washington, and Mr. Hunter challenged the trial court's April 18, 2008 multi-district litigation pre-trial order that required separate trials before separate juries in certain asbestos cases on the issue of statute of limitations. The Appeals Court denied the petition for writ of mandamus as to Ms. Hutson, Mr. Reddick, Mr. Washington, and Mr. Hunter. The Appeals Court dismissed the petition of Ms. Poisson, individually and as personal representative of the heirs and estate of Sandra Mae Conrad, as moot, as the claims in that cause have been resolved. The Appeals Court lifted its stay order of June 12, 2008. ASBESTOS LITIGATION: Court Issues Split Ruling in Silta Lawsuit --------------------------------------------------------------- The U.S. District Court, District of Minnesota, issued split rulings in a lawsuit filed by M.M. Silta, Inc. against Cleveland-Cliffs, Inc. and certain of its subsidiaries. The case is styled M.M. Silta, Inc., Plaintiff v. Cleveland- Cliffs, Inc., et al., Defendants. U.S. District Judge Michael J. Davis entered judgment in Civil No. 06-3268 on June 21, 2008. This matter is before the Court upon Silta's motion to amend the judgment and Cleveland-Cliffs, Inc., Cliffs Mining Company, Cliffs Erie, L.L.C. and John Does 1 through 5's ("Cliffs") motion for judgment as a matter of law, a new trial or remittitur. Silta sued Cliffs, alleging Cliffs breached two contracts involving the reclamation of pellets and electrical breakers located at the LTV taconite mine in Hoyt Lakes, Minn. The jury found in Silta's favor as to its claim that Cliffs breached the Breaker Sales Agreement and awarded Silta US$6,820,000 in damages, US$27,500 per breaker. At trial, Silta had presented evidence as to the fair market resale value of the breakers, and the jury presumably accepted Silta's valuation. Cliffs moves for judgment as a matter of law or in the alternative for a new trial on the basis that the value of the breakers had to be based on their salvage value, not their resale value. Cliffs also moves for a new trial arguing that the verdict is against the great weight of the evidence. Cliffs further argued that a new trial may be granted on the grounds that the jury's verdict is excessive if the court finds the verdict is a "plain injustice," "monstrous" or "shocking." In the alternative, Cliffs asked the Court to order remittitur. Cliffs requested the Court order conditional remittitur in the amount of US$124,000. Such amount was supported by the testimony of Mark Sutich, that the reasonable salvage value of the breakers was a maximum of US$500 each. Judge Davis held that: -- Cleveland-Cliffs any did not waive its right to move for judgment as a matter of law on basis that damages award was based on speculative evidence; -- Fair market value of asbestos-containing breakers in taconite mine was issue for jury; -- Breaker sales agreement was not unconscionable; -- Jury verdict 2,750 times the purchase price was not excessive; -- Jury verdict was not against the great weight of the evidence; -- New trial on issue of damages was not warranted; and -- District Court's error, if any, in instructing jury was harmless. The District Court ordered that Silta's Motion to Amend the Judgment [Doc. No. 107] was granted. The Court also ruled that Cliffs' Motion for Judgment as a Matter of Law, or in the Alternative a New Trial or Remittitur [Doc. No. 114] was granted to the extent that the judgment be entered against Cliffs Erie, LLC only, and denied in all other respects. Kyle E. Hart, Esq., and Kristine Kroenke, Esq., of Fabyanske, Westra, Hart and Thomson, P.A., represented M.M. Silta, Inc. Robin C. Merritt, Esq., and Hanft Fride, a Professional Association, represented the Defendants. ASBESTOS LITIGATION: GenCorp Facing 161 Pending Cases at Aug. 31 ---------------------------------------------------------------- GenCorp Inc. faced 161 asbestos-related cases as of Aug. 31, 2008 and 160 cases as of Nov. 30, 2007, according to the Company's quarterly report filed with the Securities and Exchange Commission on Sept. 26, 2008. The Company faced 167 pending asbestos-related claims in the six months ended May 31, 2008, compared with 160 claims in the year ended Nov. 30, 2007. (Class Action Reporter, July 11, 2008) The Company continues to be a defendant in lawsuits alleging personal injury or death due to exposure to asbestos in building materials, products, or in manufacturing operations. Most of these cases have been filed in Madison County, Ill., and San Francisco. During the nine months ended Aug. 31, 2008, the Company noted 28 claims filed, 22 claims dismissed, and five claims settled. The aggregate settlement costs were US$246,000 and the average settlement costs were US$49,000. During the year ended Nov. 30, 2007, the Company noted 57 claims filed, 43 claims dismissed, and eight claims settled. The aggregate settlement costs were US$72,000 and the average settlement costs were US$9,000. Headquartered in Rancho Cordova, Calif., GenCorp Inc. manufactures aerospace and defense products and systems with a real estate segment that includes activities related to the re- zoning, entitlement, sale, and leasing of the Company's excess real estate assets. The Company's continuing operations are organized into two segments: Aerospace and Defense and Real Estate. ASBESTOS LITIGATION: Salton Inc. Subsidiary Faces 3 Injury Suits ---------------------------------------------------------------- Salton, Inc.'s subsidiary, Applica Incorporated, faces three asbestos lawsuits in which the plaintiffs have alleged injury as the result of exposure to asbestos in hair dryers distributed by Applica over 20 years ago. Although Applica never manufactured such products, asbestos was used in certain hair dryers sold by it before 1979. There are numerous defendants named in these lawsuits, many of whom actually manufactured asbestos containing products. On Dec. 28, 2007, the Company's stockholders approved all matters necessary for the merger of SFP Merger Sub, Inc., a wholly owned direct subsidiary of the Company, with and into APN Holding Company, Inc, the parent of Applica. As a result of the merger, APN Holdco became a wholly owned subsidiary of the Company. The merger was consummated under an Agreement and Plan of Merger dated as of Oct. 1, 2007 by and among the Company, Merger Sub and APN Holdco. Headquartered in Miramar, Fla., Salton, Inc. markets and distributes branded small kitchen and home appliances, pet and pest products, water products and personal care products. Brand names include Black & Decker, George Foreman, Russell Hobbs, Toastmaster, LitterMaid, and Faberware. ASBESTOS LITIGATION: Kimble's Lawsuit v. 144 Firms Filed in Ill. ---------------------------------------------------------------- Dixie Lee Kimble, on Sept. 23, 2008, filed an asbestos-related lawsuit against 144 defendant corporations in Madison County Circuit Court, Ill., The Madison St. Clair Record reports. In the suit, Ms. Kimble, a Michigan resident, claims she was diagnosed with mesothelioma on March 21, 2008. According to the suit, Ms. Kimble says she worked as a laborer at Seward Luggage in 1973, as a laborer at Hush Puppies Shoe Factory in 1976, as a laborer at various location in 1978 and worked from 1978 until 2006 as an assembler at Electrolux. Ms. Kimble says she was also exposed to asbestos fibers from 1966 until 1971 at her mother's house while various remodeling work was done. In addition, her father worked on tractor clutches and installed a roof while Ms. Kimble was living at home, the suit states. In the 10-count lawsuit, Ms. Kimble seeks sums in excess of US$100,000, punitive and exemplary damages in excess of US$100,000, economic damages in excess of US$150,000 and compensatory damages in excess of US$150,000, plus costs of the suit. Ms. Kimble also seeks punitive damages in an amount sufficient to punish Ferris Kimball Company, Sprinkmann Sons Corporation, Sprinkmann Sons Insulation and Young Insulation Group of St. Louis for their misconduct and to deter similarly situated parties from committing like acts of misconduct in the future. Randy L. Gori, Esq., and Barry Julian, Esq., of Gori, Julian & Associates in Alton, Ill., represent Ms. Kimble. ASBESTOS LITIGATION: Dibb Pleads Not Guilty in Exposure Lawsuit --------------------------------------------------------------- Westonzoyland Primary School's head teacher, David Dibb, on Sept. 24, 2008, pleaded not guilty to an asbestos-related charge imposed by the Health and Safety Executive, the Bridgwater Mercury reports. Mr. Dibb has been charged with "failing to take reasonable care for the health and safety of himself and others by inadvertently exposing airborne asbestos fibers." Mr. Dibb denied failing to take "reasonable care" for the safety of himself and others over an asbestos leak at his primary school. Mr. Dibb appeared before Sedgemoor Magistrates in Bridgwater, Somerset, England. The primary school had to be closed for nearly a month in 2007 after asbestos was released during routine maintenance work in the summer holidays. After the hearing, Mr. Dibb's solicitor Tony Miles said, "My client strenuously denies this allegation. He is a popular and thoroughly honorable, hard working head teacher who has always tried to do the very best for his school and the pupils. He is looking forward to dealing with this allegation and maintaining his good name and reputation. "He is currently taking leave to deal with this case, a course of action which has the full support of the governors. He is looking forward to clearing his name and returning to his work." Dave Lee, of Westonzoyland-based building contractors Dave Lee Ltd, which carried out the work at the school, has pleaded guilty to two charges under the Control of Asbestos Regulations 2006. Mr. Lee will be sentenced at Taunton Crown Court, where Mr. Dibb's case is also due to be heard. ASBESTOS LITIGATION: Royal Philips Unit to Resolve Injury Claims ---------------------------------------------------------------- Royal Philips Electronics N.V., on Sept. 26, 2008, announced that its U.S. Subsidiary, TH Agriculture and Nutrition LLC, has taken steps, which, if confirmed by the U.S. courts, will resolve all pending and future asbestos-related personal injury claims against THAN and its affiliates, through a pre-packaged plan of reorganization of THAN, according to a Philips press release dated Sept. 26, 2008. In connection with these matters, Philips will take a charge of EUR241 million before-taxes (about EUR148 million after-tax) in the third quarter to be booked under Group Management & Services. In addition, Philips is still expecting additional insurance recoveries that have not yet been accounted for, in amounts ranging from about EUR80 million to EUR105 million (net present value). The Company believes that the steps announced on Sept. 26, 2008 will, after approval by the courts, establish a responsible and orderly process for the resolution of THAN's asbestos claims, while at the same time minimizing the costs (administration costs averaged EUR13 million per year over the last three years), risks, and distractions of litigation that has spanned almost a decade. Without such resolution, asbestos-related personal injury claims against THAN would be expected to continue well into the future. Court confirmation of these planned steps depends on the outcome of a vote, as THAN is required to obtain votes in favor of the reorganization plan of at least 75 percent in number and two thirds in amount of the present claimants. In connection therewith, THAN has reached agreement with lawyers representing a majority of the known claimants that they will recommend to their clients to vote in favor of the reorganization plan. The vote is expected to be completed in November 2008. In the third quarter of 2006, THAN had already increased its reserve for asbestos with a net amount of EUR265 million to account for claims expected to be asserted up to 2016. The steps taken on Sept. 26, 2008, if successful, will deal with all future asbestos liabilities. Headquartered in Amsterdam, The Netherlands, Royal Philips Electronics N.V. makes consumer electronics, including TVs, VCRs, DVD players, and fax machines. The Company also makes light bulbs, electric shavers and other personal care appliances, picture tubes, medical systems, and silicon systems solutions. ASBESTOS LITIGATION: Whitby Hospital Cleanup to Cost GBP80,000 -------------------------------------------------------------- Asbestos cleanup at the Whitby Community Hospital in Whitby, England, is estimated at GBP80,000, the Whitby Gazette reports. North Yorkshire and York Primary Care Trust (PCT) has said it is to invest the amount to remove any trace of asbestos from the Whitby Community Hospital and therefore maintain the hospital for the future. The work was set to start on Sept. 29, 2008 and will take up to 12 weeks to complete. In May 2005, the Whitby Gazette reported how asbestos had been identified in ceiling voids along the corridors. The PCT's director of community and mental health services, Janet Probert said, "Every effort is being made by staff to ensure that services will not be disrupted and signposts will be in place to help the public with any necessary detours as the work takes place. "The investment in Whitby Community Hospital will help us to ensure the hospital remains a central resource, providing valuable health services which meet the needs of the local community." Asbestos was used as insulator until the 1980s and when it was found in hospitals in Whitby, Scarborough, Malton and Bridlington. Staff were given health screenings and counseling. ASBESTOS LITIGATION: Ohio EPA to Clean General Industries Site -------------------------------------------------------------- The Ohio Environmental Protection Agency seeks the help of the federal EPA in the cleanup of the former General Industries site, which is contaminated with asbestos, The Chronicle- Telegram reports. Following a July 3, 2008 fire that tore through the complex and burned for 16 hours, the debris site has remained untouched for weeks as far as an Ohio EPA inspector can tell, Mike Settles, Ohio EPA spokesman, said. It appears that the property owner, John Peshek, has abandoned efforts to remove asbestos-contaminated rubble from the site, forcing the Ohio EPA to step up its actions. A fence was erected around the property in July 2008 at the urging of the Ohio EPA after field tests revealed high levels of asbestos. At that time, Mr. Peshek said he would work with the Ohio EPA to determine where asbestos was and how to dispose of it. Aside from a few telephone conversations in which Mr. Peshek has offered suggestions that would not work within Ohio EPA guidelines, Mr. Settles said, Mr. Peshek has failed to formally respond to a request sent by the Ohio EPA on Aug. 20, 2008 asking for a detailed site maintenance and cleanup plan. The Ohio EPA sent a letter on Sept. 25, 2008 to the federal EPA asking for its assistance in conducting a critical cleanup of the site. Mr. Settles said that if the federal EPA intervenes, it has the option of cleaning up the site and going after Mr. Peshek for payment. Signed by Paul Koval, supervisor of the Division of Air Pollution Control/Air Toxic Unit at the Ohio EPA, the letter states that such an action is needed because the Elyria Fire Department has stopped wetting down the site and city officials have asked for some kind of solution. Mayor William Grace said Mr. Peshek has verbally expressed to city officials he plans to clean up the site and reorganize his business on the property. City officials are still waiting on the federal EPA to respond to the Ohio EPA's request before it moves forward with any kind of action. ASBESTOS LITIGATION: Appeal Court Favors Spillman in Exxon Case --------------------------------------------------------------- The law firm of Baron & Budd, P.C. announced on Sept. 29, 2008 that the Louisiana First Court of Appeal affirmed a trial court's 2006 judgment awarding damages to the family of Bruce Spillman, a former Exxon Mobil Corporation employee who died of mesothelioma, according to a Baron & Budd press release dated Sept. 29, 2008. The Appeals Court ruled that although Company officials were aware of the dangers of asbestos in their Louisiana riverboats, chemical plants and oil refineries as early as 1937, Exxon failed to implement any type of safety measures to protect their workers. Renee Melancon, Esq., the Baron & Budd attorney who represented the family on appeal, said, "Exxon's own documents reveal that the company knew that the use of asbestos insulation in the petroleum industry was hazardous to workers like our client. "Exxon even outlined a strategy for minimizing asbestos exposure in its facilities in 1937, but just never bothered to follow through on the plan to protect its workers." Mr. Spillman, of Baton Rouge, La., worked on Exxon towboats from 1945 to 1949 and was exposed to asbestos when he spent time in the boats' engine rooms. From 1949 until 1986, he worked as a helper, then a welder, in Exxon's Baton Rouge oil refinery, where he continued to be exposed to pipes insulated with asbestos. Despite the 1949 warnings of its own industrial hygienist about asbestos, Exxon neither alerted its workers to any danger nor instructed them to wear masks. Mr. Spillman was diagnosed in 2005 with mesothelioma. He died later the same year. Exxon attempted to claim immunity from the lawsuit based on workers compensation statutes, however, the First Circuit reaffirmed its earlier ruling that Louisiana's 1952 Workers' Compensation Act does not cover mesothelioma and so does not bar suits by mesothelioma victims against their employers for claims that accrued prior to 1975, when the law was amended to cover that disease. In addition, the court held that Mr. Spillman's evidence was more than sufficient to establish that Exxon knew of the need to protect its workers from exposure to asbestos. At trial, the family was represented by Baron & Budd special counsel Cameron Waddell, Esq., and attorney Jody Anderman, Esq., also of Baron & Budd, along with Rick Nemeroff, Esq., of the Nemeroff Law Firm. Mr. Waddell said, "We proved, first to the trial court and then to the Court of Appeals, that Exxon was responsible for exposing its own employees to dangerously high levels of asbestos without adequate -- or, indeed, any -- respiratory protection. If Exxon had spent a fraction of the resources attempting to protect this man that it spent trying to evade responsibility in this lawsuit, then our client and his family never would have suffered this tragedy." ASBESTOS LITIGATION: Johnson Action Filed v. 55 Firms in Madison ---------------------------------------------------------------- Arvid and May Johnson, a Californian couple, filed an asbestos- related lawsuit against 55 defendant corporations in Madison County Circuit Court, Ill., on Sept. 25, 2008, The Madison St. Clair Record reports. The Johnsons claim that Mr. Johnson was diagnosed with mesothelioma on Sept. 15, 2008. They say Mr. Johnson worked from 1947 until 2004 for various companies, including the U.S. Navy, Ace Hardware and various filling stations. The Johnsons claim Mr. Johnson's disease was caused after he was exposed to and inhaled, ingested or otherwise absorbed asbestos fibers. In the four-count lawsuit, the Johnsons seek sums in excess of US$50,000, punitive and exemplary damages in excess of US$100,000 and compensatory damages in excess of US$50,000. Richard L. Saville, Jr., Esq., Robert J. Evola, Esq., Ethan A. Flint, Esq., and David J. Page, Esq., of Saville, Evola & Flint in Alton, Ill., represent the Johnsons. ASBESTOS LITIGATION: Brockovich to Work w/ Law Firm on Asbestos --------------------------------------------------------------- The law firm of Weitz & Luxenberg P.C. has chosen to partner with consumer advocate Erin Brockovich to help victims of asbestos, toxic dumping, dangerous drugs and other acts of negligence the firm takes on in its practice, according to a Weitz & Luxenberg press release dated Sept. 26, 2008. Firm co-founder Arthur Luxenberg, Esq., said, "The public shares a unique bond with Erin because they can relate to her real-life battle against a corporation that effectively poisoned a community's groundwater. We knew there was no better partner who would add depth, value and passion to our work." You may have seen Weitz & Luxenberg's television campaign featuring Ms. Brockovich, which just began airing. It highlights the firm's asbestos litigation, reaching out to those who have received a diagnosis of asbestos-related lung cancer or mesothelioma. "I have worked with them and I trust them," says Ms. Brockovich, staring intently into the eyes of TV viewers, explaining why she believes Weitz & Luxenberg can help people file an asbestos- related claim. The firm, now 60 lawyers strong, has been practicing mass tort litigation longer than any other firm in New York State, getting at the forefront of asbestos litigation in the late 1980s. Weitz & Luxenberg recently achieved a US$16.25 million verdict in an asbestos lawsuit. The case is believed to be the first successful asbestos verdict against a dental supply company. The firm is known for spearheading such asbestos cases, among others, securing a US$37 million asbestos verdict in 2007 in two lung cancer cases in a reverse bifurcated trial. Weitz & Luxenberg also won a US$25 million jury verdict in 2006 in a trial against DaimlerChrysler AG for a New York City brake reliner who lost his right lung to mesothelioma. ASBESTOS LITIGATION: McCart to Pay GBP44T Fine for 7 Violations --------------------------------------------------------------- Robert McCart, on Sept. 29, 2008, was fined a total of GBP44,000 for breaching seven regulations under The Control of Asbestos Regulations 2006, according to a Health and Safety Executive press release dated Sept. 29, 2008. At Eastbourne Magistrates' Court, Mr. McCart was fined GBP36,000 and GBP4,000 costs for the violations. He was also ordered to pay GBP4,000 compensation to the shop owner. Mr. McCart was a Director of two Eastbourne, East Sussex, England-based companies, Sussex Asbestos Solutions (South East) Ltd. and Sussex Asbestos Solutions Ltd. The Court clearly accepted the gravity of the offense and also disqualified Mr. McCart from being a Director for four years. Mr. McCart was charged with health and safety offenses following work he carried out to a shop in Gore Park Road, Eastbourne between Nov. 17, 2007 and Nov. 19, 2007. He was employed by a local businessman to remove asbestos insulation board from his shop. Mr. McCart undertook the removal of asbestos insulation board without the required license for work with asbestos, and without notifying the HSE. Mr. McCart failed to carry out the appropriate precautions and left a white sack containing broken pieces of asbestos insulation board outside the shop, and asbestos debris inside the property. Mr. McCart's actions put members of the public at risk of exposure to potentially lethal asbestos fibers. HSE inspector, Amanda Huff, said, "Robert McCart deliberately flouted ignored the law for financial gain. Mr. McCart was aware of the dangers associated with asbestos and yet decided to risk not only his own life but also members of the public. "The HSE won't hesitate to take action against people who flout breach Health and Safety Law and put others at risk." The HSE urges people to ensure that they use licensed companies to remove asbestos insulation board or asbestos lagging. ASBESTOS LITIGATION: Aircraft Carrier for Dismantling in England ---------------------------------------------------------------- The French aircraft carrier Clemenceau, which is riddled with asbestos, will be dismantled at a dock in Hartlepool, England, Telegraph.co.uk reports. Jean Kennedy headed a campaign of Hartlepool residents who have fought to keep the Clemenceau away from a dockyard because they say it poses a health and safety risk. Controversy has surrounded the Clemenceau, which sailed between 1961 and 1997, over her disposal. In December 2004, Greenpeace protested over the scrapping the ship laden with toxins such as asbestos in India. Two years later, Egyptian authorities denied the 37,000 ton vessel access to the Suez Canal. Mrs. Kennedy launched a judicial review after UK courts said the warship could be scrapped in the yards of Able UK Ltd in Hartlepool, arguing that the Health and Safety Executive had not thoroughly examined other alternatives. Barrister David Wolfe, for Mrs. Kennedy, said alternative ports in other countries should have been considered. After listening to two hours of legal argument, Mr. Justice Wilkie said that, although he had "much sympathy" for Mrs. Kennedy's position, he would not be granting her permission to seek a full judicial review. Able's barrister, Gerard Clarke, insisted that the Clemenceau would not pose a danger as strict rules and regulations would be followed once it docked in Hartlepool. ASBESTOS LITIGATION: 18 People Exposed to McNeil Island Asbestos ---------------------------------------------------------------- According to a case file of the Washington State's Department of Labor and Industries, at least 18 people (eight offenders, eight Department of Corrections employees, and a flooring contractor's crew) were exposed to asbestos at the McNeil Island Corrections Center, the news tribune.com reports. State records say that supervisors ignored safety concerns raised by inmates at McNeil Island state prison and made them remove potentially deadly asbestos-laden tile with no protective equipment and without taking common precautions. In July 2008, L&I levied a US$28,400 fine and cited the prison for two "willful" and seven "serious" violations related to three projects done in late 2007. Records say that prison officials told L&I they thought they were doing the removal correctly and that they did not think the Puget Sound Clean Air Act's asbestos regulations applied to the work. David Block, safety manager in the department's office of risk management, said that the Department of Corrections does not dispute the underlying facts of the case. However, the safety shortcomings were "an irregular event and inconsistent with current DOC procedures and past practice," he added. The department has appealed the L&I ruling but only to ask the agency to reduce the severity of the most serious violations, Mr. Block said. Corrections also has asked L&I to allow it to divert some of the fine money to a training budget for DOC maintenance workers and supervisors "to make sure something like this doesn't happen again," Mr. Block said. The L&I report states that in November 2007 and December 2007, vinyl tile held in place by toxic cement was removed from administrative areas at the prison without the required precautions, such using a vacuum with an air filter or water to keep the asbestos-laden dust from becoming airborne. Two supervisors involved with the tile removal had been certified by the state in asbestos removal, the report noted. Gar Rodside, the construction maintenance supervisor, became a certified asbestos supervisor in 2000 and had taken seven refresher courses, though his certification had lapsed at the time of the work. The other supervisor, Tom Hili, was certified in 2004 and had taken three refresher courses. Both Mr. Rodside and Mr. Hili remain employed at the Department of Corrections and have not been disciplined as a result of L&I findings, DOC spokesman Chad Lewis said. According to the L&I report, Mr. Rodside told offenders who raised concerns about their safety that there was asbestos in the tile and cement, but assured them it was not dangerous. When the offenders asked about using water to minimize the dust, Mr. Rodside said it was not needed. Meanwhile, the facility's plant manager and Mr. Rodside, the construction maintenance supervisor, said "there was little dust during the removal of the tile." ASBESTOS LITIGATION: N.Y. Sees Surge of Complaints in Sept. 2008 ---------------------------------------------------------------- The month of September 2008 has brought more asbestos-related reports and complaints from schools across New York State, JusticeNewsFlash.com reports. Parents at Heim Elementary School in Amherst, N.Y., began expressing serious concern, with the discovery of asbestos found in the floor tiles of the school. Officials at Apollo Middle School also confirmed asbestos products were found by plumbers, electricians, and other construction workers preparing to renovate in the third floor building. This project included a new roof and is now on hold. Reports have now begun surfacing, of a bidding war in Oneida, N.Y. Various asbestos-abatement companies are seeking to win the asbestos products removal contract after asbestos-contaminated materials were discovered, at a former school on Elizabeth Street. According to numerous asbestos articles and mesothelioma organizations, there are many difficulties with renovations of aged structures. The number one complaint is the high cost induced, by the need for asbestos workers trained in the proper handling and removal of various types of asbestos products. ASBESTOS LITIGATION: Blears Lauds "Save Spodden Valley" Campaign ---------------------------------------------------------------- The United Kingdom's Secretary of State for Communities and Local Government, Hazel Anne Blears MP, hailed the Save Spodden Valley campaigners as "community heroes" for their efforts against asbestos-related disease, Rochdale Online reports. SSV coordinator Jason Addy was one of six community heroes invited to meet the Communities Secretary to discuss their campaigning work. Shown live on BBC Parliament, the debate saw Mr. Addy explain to an audience at a Labour Party conference in Manchester why he was campaigning to put an end to asbestos-related deaths and ensure that past mistakes are not repeated. Mr. Addy said, "I am nobody special and ours is a non-political campaign, but too many people have died as a result of asbestos related diseases. "Too many families in Rochdale have been badly affected by asbestos and that's what we're fighting for, to ensure that history doesn't repeat itself. The decisions and products made at the T&N site in Spodden Valley have killed far too many people. As a town, we have been threatened, bullied, lied to, poisoned and taken for granted. Our campaign is to safeguard our community and raise awareness of the dangers of asbestos." Afterwards, Mr. Addy said he was grateful to have been given the opportunity to discuss issues that have affected many people in Rochdale with Government ministers. Rochdale's Labour Parliamentary Candidate, Simon Danczuk, added that Mr. Addy's tireless efforts had been appreciated by all political parties in Rochdale and that Mr. Addy was one of many "community heroes" in the Borough. ASBESTOS LITIGATION: Asbestos Removed from Hegeman Hall in R.I. --------------------------------------------------------------- During the summer of 2008, asbestos was removed from the floors of the Hegeman Hall of Brown University in Providence, R.I., The Brown Daily Herald reports. This fall, students in Hegeman returned to freshly painted walls, redone floors and the air clear of asbestos. In the summer, Hegeman renovations included the removal of asbestos from the floors, though most residents interviewed by The Herald were not even aware of the actions taken to combat the hazard. Asbestos removal was not originally part of the renovations for Hegeman. The fibers were found after construction crews went in to re-tile the floors. According to Steven Morin, Brown's director of Environmental Health and Safety, most buildings built before 1980 contain materials with asbestos, so it wasn't surprising that they were present. However, Mr. Morin reiterated that the asbestos was harmless until it was disturbed by construction crews, which was when Brown made the decision to go forward with the heavily regulated and effective asbestos removal process. Mr. Morin, who oversaw the process, said that workers who were trained in asbestos removal prepared the work area by following a plan approved by the Rhode Island Department of Health to ensure the safety of the workers and that no air escaped, which would have exposed the asbestos. Mr. Morin added that asbestos probably still remains in the non- renovated sections of Hegeman but said that even if present it is harmless when contained. ASBESTOS LITIGATION: UCATT "Decries" Denial of Payout to Victims ---------------------------------------------------------------- The Union of Construction, Allied Trades and Technicians' (UCATT) General Secretary of Construction, Alan Ritchie, condemned the insurance industry's attempts to deny payout to asbestos victims. During the summer of 2008, the insurance industry took a case to the High Court, where they argued that the insurer at the time a person was exposed to asbestos should no longer be responsible for paying compensation. Instead the "trigger" for compensation should be when the disease develops. In the case of mesothelioma, the disease can take over 30 years to develop after a victim has been exposed to asbestos. Many people have retired by the time the disease develops and therefore do not have a current insurer. If the insurance industry is successful with their case, hundreds of asbestos victims will no longer receive compensation. In his speech Mr. Ritchie, said, "Every week 40 people die of mesothelioma. It is incurable. Victims die an agonizing death. It is sickening that the insurance industry wants to block their compensation." The issue is set to be overwhelmingly passed by conference, which will place pressure on the United Kingdom Government to rein in the unregulated insurance industry. In 2007, the insurance industry won a case in the Law Lords that pleural plaque victims should no longer receive compensation. The Government is now consulting on the issue following a wide scale campaign by the unions led by UCATT to get the Law Lords decision overturned. ASBESTOS LITIGATION: Split Rulings Issued for Continental Casual ---------------------------------------------------------------- The U.S. District Court, Eastern District of Pennsylvania, issued split rulings in an asbestos-related insurance case filed by Continental Casual Co. against various defendants. The case is styled Continental Casual Co., Plaintiff v. Peerless Industries Inc., et al., Defendants. U.S. District Judge Cynthia M. Rufe entered judgment in Civil No. 06-4621 on Aug. 29, 2008. The underlying claims for which Continental sought contribution and indemnification arose out of personal injury complaints made by numerous individuals against Peerless Industries, Inc., a heating company, as a result of exposure to asbestos contained in Peerless produced boilers. Continental was Peerless' primary insurer, and provided defense and indemnity to Peerless in the litigation of these personal injury actions. Continental claimed that its primary policy limits had been exhausted, and sought a declaration that it is no longer obligated to provide defense and indemnification to Peerless. Continental contended that Defendants California Union (now Century Indemnity Company), International Insurance Company (now TIG Insurance Company), and Adriatic Insurance Company (now Fireman's Fund Insurance Company) (collectively "the Other Insurers"), had all issued policies to Peerless, but that they had refused to provide coverage for the asbestos-related claims. Continental brought this action to declare the rights and obligations of the Other Insurers to provide a defense and indemnity in connection with the claims brought against Peerless. Peerless had also cross-claimed against all Other Insurers. Century and TIG sought to add additional third party defendant insurance companies that allegedly issued policies to Peerless during the applicable time period. They also filed a motion to compel certain documents from Continental regarding the previous claims resolved with Peerless. Fireman's Fund did not join in these motions. Continental had also filed a Motion to Compel, seeking documents relating to successor liability of Defendants' predecessors. The District Court dismissed without prejudice Continental's Motion to Compel, granted in part and denied in part Defendants' Motion to Compel, and denied Defendants' Motion for Leave to File a Third Party Complaint. Anthony Presta, Esq., James Adrian, Esq., of Ford Marrin Esposito Witmeyer & Gleser LLP in New York, and David G. C. Arnold, Esq., of Narberth, Pa., represented Continental Casual Co. Gregory L. Liacouras, Esq., of Liacouras & Smith, LLP, Lily E. Koohdary, Esq. Of Bennett, Bricklin & Saltzburg in Philadelphia, Frank A. Valverde, Esq., Richard S. Feldman, Esq., of Rivkin, Radler, LLP in Uniondale, N.Y., and Victoria J. Airgood, Esq., of Siegal, Napierkowski & Park, in Mount Laurel, N.J., represented the Defendants. ASBESTOS LITIGATION: Ameron Facing 31 Pending Claims at Aug. 31 --------------------------------------------------------------- Ameron International Corporation was a defendant in asbestos- related cases involving 31 claimants as of Aug. 31, 2008, compared with 29 claimants as of June 1, 2008, according to the Company's quarterly report filed with the Securities and Exchange Commission on Sept. 29, 2008. The Company is one of numerous defendants in various asbestos- related personal injury lawsuits. These cases generally seek unspecified damages for asbestos-related diseases based on alleged exposure to products previously manufactured by the Company and others. At this time the Company is generally not aware of the extent of injuries allegedly suffered by the individuals or the facts supporting the claim that injuries were caused by the Company's products. For the quarter ended Aug. 31, 2008, there were new claims involving five claimants, dismissals and settlements involving three claimants and no judgments. No net costs or expenses were incurred by the Company for the quarter ended Aug. 31, 2008 in connection with asbestos-related claims. Headquartered in Pasadena, Calif., Ameron International Corporation makes highly-engineered products and materials for the chemical, industrial, energy, transportation and infrastructure markets. The Company produces water transmission lines; fiberglass-composite pipe for transporting oil, chemicals and corrosive fluids and specialized materials and products used in infrastructure and energy projects. ASBESTOS LITIGATION: LADWP Fined $9,030 for Clean Air Act Breach ---------------------------------------------------------------- The U.S. Environmental Protection Agency has fined the Los Angeles Department of Water and Power US$9,030 for demolishing structures without notifying the EPA as required by federal Clean Air Act asbestos regulations, according to an EPA press release dated Sept. 30, 2008. In August 2007, EPA and California Air Resources Board inspectors determined that structures owned by LADWP at 9596 US Highway 111 near Niland, Calif., were demolished by employees of LADWP. LADWP failed to notify EPA about the demolition before it occurred, as required under the National Emissions Standards for Hazardous Air Pollutants regulations for asbestos. Deborah Jordan, director of the Air Division for the EPA's Pacific Southwest region, said, "When a building is demolished, asbestos must be properly removed in order to protect the health of workers and the community. We can avoid creating a public health threat from airborne asbestos by following the safeguards required by law." For more information on asbestos, please visit: http://www.epa.gov/asbestos/pubs/help.html ASBESTOS LITIGATION: Ariz. Schools Fined $11T for AHERA Breach -------------------------------------------------------------- The U.S. Environmental Protection Agency fined six Arizona charter school operators a combined total of US$11,600 for Asbestos Hazard Emergency Response Act violations, according to an EPA press release dated Sept. 30, 2008. In April 2007, EPA inspectors discovered that all but one of the school operators failed to conduct inspections to determine if asbestos-containing material was present in school buildings and all had failed to develop asbestos management plans. The schools have since completed inspections or otherwise obtained the appropriate documentation to establish that no asbestos-containing material is present in their school buildings. All of the schools have developed asbestos management plans. "All schools, including charter schools, need to conduct asbestos inspections and have asbestos management plans," said Katherine Taylor, associate director for the Communities and Ecosystems Division in EPA's Pacific Southwest region. "Asbestos in schools has the potential for endangering the health of students, teachers, and others, including maintenance workers." The schools are: -- Valley Academy: The operator Valley Academy, Inc. was fined US$2,400. -- Paradise Education Center: The operator, Paragon Management, Inc. was fined US$2,100. -- Horizon Community Learning Center: The operator Horizon Community Learning Center, Inc. was fined US$2,100. -- Happy Valley School: The operator Happy Valley School, Inc. was fined US$2,100. -- Edu-Prize Charter School: The operator Edu-Prize, Inc. was fined US$2,100. -- Challenge School: The operator Challenge School, Inc. was fined US$800. Federal law requires schools to conduct an initial inspection using accredited inspectors to determine if asbestos-containing building material is present and develop a management plan to address the asbestos materials found in the school buildings. In certain circumstances, an inspection is not required if the school has a signed statement from the architect or builder stating that a new building was constructed with no asbestos- containing materials. All six schools established that no asbestos-containing materials were used in their school buildings. Schools that do not contain asbestos-containing material must still develop a management plan that identifies a designated person and includes the architect's statement or building inspection and the annual notification to parents, teachers, and employees regarding the availability of the plan. The EPA's rules also require the school to appoint a designated person who is trained to oversee asbestos activities and ensure compliance with federal regulations. Finally, schools must conduct periodic surveillance and re-inspections, properly train the maintenance and custodial staff, and maintain records in the management plan. Local education agencies must keep an updated copy of the management plan in their administrative office and at the school, which must be made available for inspection by parents, teachers, and the general public. For on asbestos in schools visit: http://www.epa.gov/asbestos/pubs/asbestos_in_schools.html ASBESTOS LITIGATION: ASARCO LLC's Second Plan Filed on Sept. 25 --------------------------------------------------------------- ASARCO LLC and its debtor affiliates delivered to the U.S. Bankruptcy Court final copies of their Second Amended Joint Plan of Reorganization and a Disclosure Statement explaining that Plan on Sept. 25, 2008. The Debtors' Second Amended Plan provides that sources of payments to be made to Claimants under the Plan include: -- The Debtors' cash, which could total as much as US$1.4 billion to US$1.5 billion; and -- The Available Plan Proceeds, which are expected to total US$2.5 billion, assuming a US$90 million Adjustment Payment Reserve, and a US$10 million Unpaid Cure Claims Reserve. Under the global settlement agreement between the Debtors and the asbestos parties, which is incorporated into the Second Amended Plan, distributions to the Asbestos Trust are expected to total at least US$750 million, excluding the Asbestos Trust's right to 50 percent of the Litigation Trust Interests. The FCR and the Asbestos Claimants' Committee reserve the right to oppose Confirmation of the Plan if there appears to be a significant risk that the level of distribution cannot be realized. At the Plans' confirmation hearing, the Second Amended Plan indicates that the Debtors intend to present evidence as to the reasonable range of Unsecured Asbestos Personal Injury Claims, Miscellaneous Federal and State Environmental Claims, and Claims relating to the Environmental Custodial Trust sites. The Second Amended Plan discloses that Mitsui Co. (U.S.A.), Inc., and its related entities, and the company formerly known as ASARCO Incorporated -- now ASARCO LLC -- entered into certain agreements pertaining to Silver Bell that are not listed as assumed contracts in the Plan Sponsor PSA, or otherwise assigned to the Plan Sponsor. The agreements include: -- "Asarco Incorporated Guaranty" agreement, dated Feb. 5, 1996, in favor of Mitsui; -- A letter agreement, dated Feb. 5, 1996, supplementing the Silver Bell LLC Agreement; -- "Reimbursement Agreement," dated Dec. 12, 1997, which is ancillary to the Equipment Lease Agreement with The Copper Equipment Trust and certain related agreements; and -- "Commercial Agreement," dated Nov. 9, 2007, concerning the purchase of copper cathodes from Silver Bell. Whether or not Mitsui grants consent to the transfer by ARSB of its membership interests in Silver Bell, Mitsui has requested that the agreements, including a "Management Services Agreement," be assumed by and assigned to the Parent. The Debtors note that they have not taken a formal position with respect to the treatment of the agreements discussed, and reserve all rights and remedies concerning the agreements. Blacklined copies of the Debtors' Second Amended Plan and the accompanying Disclosure Statement is available for free at: http://bankrupt.com/misc/Debtors_Blacklined_2ndAmended_Plan.pdf http://bankrupt.com/misc/Debtors_Blacklined_2ndAmended_DS.pdf (ASARCO Bankruptcy News, Issue No. 86; Bankruptcy Creditors' Service, Inc. 215-945-7000 FAX 215-945-7001) ASBESTOS LITIGATION: Schmidt OKs ASARCO to Extend Loan to $10Mil ---------------------------------------------------------------- Judge Richard S. Schmidt authorized ASARCO LLC to extend a one- time intercompany loan of up to US$10 million to the Asbestos Subsidiary Debtors on a secured basis. The Asbestos Debtors require access to cash and working capital through the availability of the new credit facility to preserve value and maintain administrative solvency. Asarco Incorporated and Americas Mining Corporation previously opposed ASARCO LLC's extension of the DIP Loan arguing that the Loan is only a "gift" and constitutes an improper pre- confirmation advance, which violates the Bankruptcy Code. In support of the DIP Facility request, Douglas E. McAllister, executive vice president, general counsel, and secretary of ASARCO LLC, testifies that ASARCO LLC's liquidity will not be negatively impacted by funding the loan as the company has more than a billion dollars of cash in a bank. Mr. McAllister said the Asbestos Debtors are unlikely to obtain a loan on terms more favorable to that offered by ASARCO, and pursuing a third-party loan would be a waste of time, resources, and would result in unnecessary expenses and lender fees. ASARCO LLC, Mr. McAllister said, has an interest in ensuring that the Court approves the Intercompany DIP Loan so that the Asbestos Debtors may pay their professionals, on a current basis, to help defend the Debtors' Joint Plan of Reorganization against any challenges, obtain an injunction under Section 524(g) of the Bankruptcy Code for the benefit of Sterlite Industries (India), Ltd., and all the Debtors, and close the Sterlite sale so that the Joint Plan can be confirmed. Mr. McAllister disputed the Parent's argument that the Intercompany DIP Loan is a gift asserting that ASARCO LLC's pre- petition monetization of the insurance coverage for asbestos- related liability resulted to ASARCO LLC incurring more than US$10 million of debt from the Asbestos Debtors. (ASARCO Bankruptcy News, Issue No. 86; Bankruptcy Creditors' Service, Inc. 215-945-7000 FAX 215-945-7001) ASBESTOS LITIGATION: Dist. Court Affirms Approval of Dana Pacts --------------------------------------------------------------- The Ad Hoc Committee of Asbestos Personal Injury previously appealed from the U.S. Bankruptcy Court for the Southern District of New York's order, dated Nov. 15, 2007, approving the settlement agreements Dana Holding Corporation entered into with certain asbestos personal injury attorneys on behalf of 7,500 asbestos personal injury claimants. Dana has been named a defendant in roughly 133,000 asbestos- related personal injury lawsuits, which stem from Dana's prior sale of certain automotive gaskets which, because of their encapsulated form, sealed in asbestos. Under the settlement, Dana is expected to pay about US$2 million to the asbestos claimants, resulting to an average of US$267 per claim, and would resolve five percent of all pending claims against Dana. The Plan provides that those asbestos personal injury claims that have not been resolved through the settlement agreements will pass through the bankruptcy and are reinstated against Dana. In support of its Appeal, the Committee argued that: -- The Bankruptcy Court erred in approving the settlement agreements because they were not filed as part of the public record of the jointly administered bankruptcy cases; -- The Bankruptcy Court erred in applying the factors summarized by the Court of Appeals for the Second Circuit in In re Iridium Operating LLC, 478 F.3d 452, 462 n.13 (2d Cir. 2007), which factors were to be considered in approving the settlement agreements; -- The Bankruptcy Court erred in approving the settlement agreements because the agreements give differential treatment to claims in the same class in violation of Section 1123(a)(4) of the Bankruptcy Code; -- The Bankruptcy Court erred in approving the settlement agreements because the agreements provide for the treatment of future asbestos claims without meeting the requirements of Section 524(g); and -- The Bankruptcy Court erred in approving the settlement agreements because they may be interpreted to restrict a lawyer's right to practice, and thus violate ethic rules. After considering all of the arguments raised by parties-in- interest, Judge Koeltl of the U.S. District Court for the Southern District of New York affirms the Bankruptcy Court's order approving the Asbestos Settlement Agreements. Judge Koeltl finds that the Committee wrongly attempts to argue the merits of whether the settlement agreements were properly sealed under Section 107(b)(1). He notes that the total amount of the settlement and the per claim average settlement for 7,500 claims was in fact publicly disclosed. He holds that there were sufficient facts in the public record for the Bankruptcy Court to approve the settlement agreements even though the full settlement agreements were filed under seal. Judge Koeltl finds that the Committee's argument that the Bankruptcy Court ignored the Iridium factors is without merit. The Motion to approve the settlement and the Committee's response both specifically referred to the Iridium factors, and the Committee failed to make any reasonable argument that the Iridium factors were not satisfied in this case, he points out. In fact, he adds, at the argument of the appeal, the Committee's counsel could not explain how the settlements could be found deficient under the Iridium factors. The District Court also rules that the Committee's Section 1123(a)(4) claim would fail on the merits. The Plan, Judge Koeltl notes, provides that the Committee's claims will pass through the bankruptcy and be reinstated against Dana. It can hardly be said that this treatment prejudices the Committee because the claimants represented by the Committee have the full amount of their claims that they are asserting against Dana, Judge Koeltl holds. The fact that some claimants have settled while others have not does not, by itself, indicate unequal treatment, Judge Koeltl rules. The key inquiry under Section 1123(a)(4) is not whether all of the claimants in a class obtain the same thing, but whether they have the same opportunity, he adds. With respect to the Committee's Section 524(g) claim, Judge Koeltl holds that the claim is more properly addressed in the appeal of the Confirmation Order. He also finds that the Committee's Section 524(g) claim fails on the merits. He notes that Section 524(g) simply does not bear on the settlement agreements. Neither an injunction nor a trust was established or even discussed by the bankruptcy court. The settlement agreements do establish an administrative procedure for future claims against Dana, whereby the attorneys representing the settling claimants agree to bring those claims informally first, with an eye toward resolving them without litigation, and to file new lawsuits against Dana for claims that arise after the date of the settlement agreements no sooner than two years after that date, he points out. To the extent this provision compromises any future claimant's right to litigate, it falls far short of an injunction, Judge Koeltl holds. "Nothing more serious than this modest limitation appears anywhere on the record or in the settlement agreements. Therefore, Section 524(g) has nothing to do with the Bankruptcy Court's approval of the settlement agreements," Judge Koeltl rules. Judge Koeltl also finds that there was in fact no restriction on the ability of the lawyers to represent their clients or take on new clients. At most, he notes that the agreements provide for tolling agreements to allow the administrative resolution of claims. (Dana Corporation Bankruptcy News, Issue No. 82; Bankruptcy Creditors' Service, Inc. 215-945-7000 FAX 215-945-7001) ASBESTOS LITIGATION: Klamath to Pay $8,299 for Cleanup Breaches --------------------------------------------------------------- The Oregon Department of Environmental Quality has penalized Klamath County US$8,229 for allowing an unlicensed person to perform asbestos abatement on a county road project at the corner of Crosby and Broadmore streets in Klamath Falls, Ore., News 10 reports. Central Point, Ore.-based contractor Pilot Rock Excavation was also issued a US$4,200 fine for conducting an asbestos abatement without being licensed as an asbestos abatement contractor. On May 1, 2008, DEQ staff visited a site at a storm drain installation project on Crosby Street performed by Pilot Rock under contract with the Klamath County Department of Public Works. The county owns the project site and supervised or controlled the storm drain project. DEQ staff saw Pilot Rock had excavated about 825 linear feet of buried asbestos-containing pipe from the area of the planned storm drain trench in a manner that broke or shattered about 40 linear feet of the pipe. DEQ laboratory analysis of a sample of the broken pipe revealed that the pipe contained 52 percent asbestos. Removing the asbestos-containing pipe caused about 40 linear feet of the pipe to be friable, or capable of releasing asbestos fibers into the air and exposing the public to asbestos. A licensed asbestos abatement contractor would have wet the material during removal, placed it in leak-tight containers, clearly labeled the containers as asbestos-containing and disposed of it in a timely manner at an authorized disposal site to prevent emissions of asbestos fibers into the air. Appeal procedures allow Klamath County and Pilot Rock 20 days to appeal the penalty. ASBESTOS LITIGATION: N. Ireland Suffers to Get GBP10T in Payout --------------------------------------------------------------- Margaret Ritchie, Northern Ireland's Minister for Social Development, has confirmed that an average of GBP10,000 will be available to mesothelioma sufferers from Oct. 1, 2008, BBC News reports. Ms. Ritchie said the money will be given "within weeks" of mesothelioma being diagnosed. A Department of Social Development spokesman said the money would be made available shortly after diagnosis, as patients may not live to see a civil compensation case being resolved. The money will be funded by recovery from successful civil compensation pay-outs. ASBESTOS LITIGATION: Court Junks Cooper Ind. Asbestos Settlement ---------------------------------------------------------------- Cooper Industries, Ltd., on Oct. 1, 2008, announced that the U.S. Bankruptcy Court for the District of Delaware has not approved the Plan A settlement whereby the Pneumo-Abex asbestos claims would be settled through the Federal Mogul Corp. Asbestos Trust, according to a Company press release dated Oct. 1, 2008. The Court had previously approved Plan B whereby Cooper will receive US$138 million from the Federal Mogul bankruptcy estate and will continue to resolve through the tort system the asbestos-related claims arising from the Abex Friction Products business that it had sold to FMC in 1998. Additionally, under Plan B, Cooper has access to Abex insurance policies with substantial remaining limits on policies with solvent insurers. Chairman and CEO Kirk S. Hachigian said: "The total cost of Plan A increased over time and Cooper would have paid a significant premium under Plan A. We have also gained experience in dealing with the claims since this issue first emerged in 2001 and we are well positioned to manage these claims similar to many other companies. We are pleased that the decision has been made and can now move forward." Further details regarding the financial impact of this decision will be reflected in Cooper's Third Quarterly report on form 10- Q filed with the Securities and Exchange Commission. Headquartered in Houston, Cooper Industries, Ltd. is a global manufacturer with 2007 revenues of US$5.9 billion, about 87 percent of which are from electrical products. The Company has eight operating divisions with products and brands including: Bussmann electrical and electronic fuses; Crouse-Hinds and CEAG explosion-proof electrical equipment; Halo and Metalux lighting fixtures; and Kyle and McGraw-Edison power systems products. ASBESTOS LITIGATION: Hogg to Pay GBP6,500 for Disposal Breaches --------------------------------------------------------------- William Osbourne Hogg, a builder, is to pay a total of GBP6,500 (GBP5,000 in fines and GBP1,500 in Environment Agency costs) for asbestos-related disposal breaches, The Whitehaven News reports. Magistrates decided that Mr. Hogg put asbestos sheeting into the foundations of a house extension in Seascale, Cumbria, England. He admitted putting bits of rubbish in the foundation of the extension on Wasdale Park � but not asbestos. The 49-year-old Mr. Hogg pleaded guilty to disposing of controlled waste without a license. The extension was being built at the home of Gillan and Rebecca Pooley at Wasdale Park. Barrister Richard Bradley, prosecuting for the Environment Agency, said that although Mr. Hogg pleaded guilty to the general charge he maintained he was not to blame for disposing of the asbestos. The court heard that Kevin Temple, a scaffolder, lived next door to the Pooleys and some time previously had removed asbestos from his porch roof. However, Mr. Temple vehemently denied he got rid of this by burying it in the foundations Mr. Hogg was digging. He told the court he was trained in asbestos awareness, adding that he had bagged up the material himself, made it safe and took it to the tip where he declared it. Mr. and Mrs. Pooley dismissed Mr. Hogg from the job after being told by a building control inspector that the extension did not conform to regulations. Mr. Hogg concreted the floor despite being told not to do so by building inspector Leslie Finlay who was not happy with the work. Mr. Pooley dug up the concrete floor himself and found the broken pieces of asbestos. Mr. Hogg admitted to the Environment Agency that he had put rubbish like an old carpet, timber and lino (from another job) into the foundations before concreting over but denied any knowledge of asbestos. Mr. Hogg also said in an interview that "he recognized it as asbestos sheeting he had seen on the driveway of Mr. Temple and speculated that Mr. Temple may have deposited the broken sheets." Presiding magistrate Ian Killip said, "Mr. Hogg has admitted he did not comply with building and environmental regulations. He has displayed total disregard for the proper rules and standards of a responsible builder. We do not believe his version of events." ASBESTOS LITIGATION: Trial Against Ex-Hardie Directors Ongoing -------------------------------------------------------------- An asbestos-related civil trial has been ongoing in the New South Wales Supreme Court against James Hardie Industries N.V. and several of its officers and directors since Sept. 29, 2008, the International Herald Tribune reports. The Australian Securities and Investments Commission is suing 10 former Hardie officials, who each face maximum fines of AUD200,000 (US$166,000) and a disqualification from managing a corporation. In 2007, Hardie agreed to pay AUD4 billion (US$3.3 billion) to an asbestos compensation fund over the next 40 years, ending months of negotiations with unions and asbestos support groups. However, ASIC claims Hardie and its executives "failed to act with requisite care and diligence" when they told investors that the Company's asbestos compensation plan was fully funded when it was actually short more than AUD1 billion (US$830 million). ASIC's attorney, Tony Bannon, told the Court that the Company issued a statement in 2001 to the Australian Securities Exchange announcing the formation of its Medical Research and Compensation Fund, in which it claimed the foundation had "sufficient funds to meet all legitimate compensation claims." Mr. Bannon said the "unequivocal statement" came despite advice to the Company that estimating the cost of future compensation liabilities was "fraught with difficulties." Around 20 members of the Asbestos Disease Foundation of Australia were in court for the trial's opening, including Karen Banton, the widow of asbestos campaigner and former Hardie employee Bernie Banton who died in 2007 at the age of 61 after a long battle with asbestosis. Mr. Banton launched his campaign against Hardie, once Australia's largest asbestos maker, in 2001 after the Company shifted its headquarters from Sydney to the Netherlands. The Company said the move was for tax reasons; critics said it was designed to avoid a slew of asbestos-related lawsuits. The ASIC has called 58 witnesses for the trial, which is expected to last several months. ASBESTOS LITIGATION: HSE to Launch Awareness Campaign in October ---------------------------------------------------------------- The Health and Safety Executive will launch an asbestos awareness campaign in October 2008 to reduce the number of people exposed to the deadly substance at work, Personneltoday.com reports. According to Peter Bennett, partner and head of the occupational disease team at law firm Dolmans, says that public sector organizations are increasingly shouldering the blame for asbestos-related illnesses caused at private firms. Mr. Bennett said state employers were often seen as a soft touch by lawyers. He said he had seen a steady rise in the number of asbestos-related claims against the public sector in recent years. Mr. Bennett said, "It is my impression that there is a belief that the public sector is more likely to pay out in event of such claims being made. It is therefore vulnerable to such claims in circumstances where commercial bodies might not be." Mr. Bennett said that someone found to have been exposed to asbestos at an unspecified point during a 20-year career spanning 10 employers, would often claim against the only public sector employer they had. ASBESTOS ALERT: Six Lawsuits Ongoing v. Jaguar Cars, Land Rover --------------------------------------------------------------- Tata Motors Limited's subsidiaries (Jaguar Cars Limited and Land Rover and its subsidiaries) are facing six asbestos-related cases. No other asbestos-related matters were disclosed in a Company report, on Form 6-K, filed with the Securities and Exchange Commission on Sept. 29, 2008. COMPANY PROFILE: Tata Motors Limited Bombay House 24, Homi Mody Street Mumbai 400 001 Maharashtra, India Telephone # 91 22 5667 8282 Fax # 91 22 5665 7799 Description: Tata Motors Limited makes buses, commercial trucks and tractor- trailers, passenger cars (Indica, Indigo, Safari, Sumo, and the ultra-cheap Nano), light commercial vehicles, and utility vehicles. The Company sells its cars mainly in India, but about 10 percent of sales come from other Asian countries and Africa, Australia, Europe, the Middle East, and South America. ********* A list of Meetings, Conferences and Seminars appears in each Wednesday's edition of the Class Action Reporter. Submissions via e-mail to carconf@beard.com are encouraged. Each Friday's edition of the CAR includes a section featuring news on asbestos-related litigation and profiles of target asbestos defendants that, according to independent research, collectively face billions of dollars in asbestos-related liabilities. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Frederick, Maryland USA. Glenn Ruel S. Senorin, Janice M. Mendoza, Leah R. Felisilda, Stephanie Tolentino-Umacob, Freya Natasha F. Dy, and Peter A. Chapman, Editors. Copyright 2008. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $575 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Christopher Beard at 240/629-3300. * * * End of Transmission * * *