/raid1/www/Hosts/bankrupt/CAR_Public/081017.mbx
C L A S S A C T I O N R E P O R T E R
Friday, October 17, 2008, Vol. 10, No. 207
Headlines
AUDIOVOX CORP: Still Faces Lawsuit Over Cell Phone Radiation
CARMAX INC: Faces Securities Fraud Litigation in E.D. Virginia
CARMAX INC: Settles Md. Litigation Over Vehicle's Rental History
CARNIVAL CORP: Still Faces Copyright Violations Lawsuit in N.Y.
COPART INC: La. Court Junks Remaining Claims in Antitrust Suit
DHL EXPRESS: Faces Lawsuit in N.Y. Over Jet Fuel Surcharges
DIEDRICH COFFEE: Settles Labor-Related Litigation in California
DIEDRICH COFFEE: Settles "Willems" Labor Litigation in Calif.
EVERGREEN ROYALLE: 28 Day Shuffle is Illegal, Calif. Suit Says
HIENERGY TECHNOLOGIES: Securities Settlement Hearing Set Dec. 15
IPEX INC: Faces Colo. Lawsuit Over "Kitec" Plumbing Systems
LEVI STRAUSS: Oct. 17 Hearing Set for California Suit Settlement
MENU FOODS INCOME FUND: N.J. Court Certifies Settlement Class
NATURE'S SUNSHINE: 2010 Trial Set for Utah Securities Fraud Suit
NEVIS MOBILE: "Duffy" Unauthorized Charges Lawsuit Certified
OLIVIER CHENG: Workers Sue Catering Company for Labor Law Breach
PACIFIC LIFE: Bundles Hidden Charges, Calif. Lawsuit Alleges
PALL CORP: Seeks Dismissal of Amended Complaint in N.Y. Lawsuit
RIVERSIDE CEMENT: Faces Suits Over Hexavalent Chromium Emissions
SASOL NORTH: Faces Suit Over EDC Pipeline Rupture at U.S. Dock
SYNCHRONOS TECHNOLOGIES: Lead Plaintiff Filing Deadline Set Nov.
THOR INDUSTRIES: Faces Suits Over Formaldehyde in Housing Units
TIBCO SOFTWARE: Plaintiffs Abandon Appeal in Securities Lawsuit
New Securities Fraud Cases
AUTHENTEC INC: Brower Piven Announces Securities Suit Filing
BIOVAIL CORP: Brower Piven Announces N.Y. Securities Suit Filing
CANO PETROLEUM: Brower Piven Announces Securities Suit Filing
ELAN CORP: Brower Piven Announces N.Y. Securities Suit Filing
OSKOSH CORP: Glancy Binkow Files Securities Fraud Suit in Wis.
Asbestos Alerts
ASBESTOS LITIGATION: MetLife Reports Expected Results for 3Q2008
ASBESTOS LITIGATION: Breaux's Case v. A.O. Smith Filed in Texas
ASBESTOS LITIGATION: RPM Liabilities Remain at $65Mil at Aug. 31
ASBESTOS LITIGATION: Young Suit Filed v. 80 Firms in Tex. Court
ASBESTOS LITIGATION: Poninski Lawsuit v. BNSF Filed on Sept. 30
ASBESTOS LITIGATION: Cleanup at Pueblo County Site to Cost $3.8M
ASBESTOS LITIGATION: RPM Units Facing 11,399 Actions at Aug. 31
ASBESTOS LITIGATION: RPM Units Still Involved in Insurance Cases
ASBESTOS LITIGATION: Schmidt Signs ASARCO Confidentiality Deal
ASBESTOS LITIGATION: ASARCO Confirmation to Commence on Nov. 17
ASBESTOS LITIGATION: ASARCO Claimants Seek to Retain Charter Oak
ASBESTOS LITIGATION: Claimants Seek to Retain LAS as Consultant
ASBESTOS LITIGATION: Claimants Move to Keep Anderson as Advisor
ASBESTOS LITIGATION: Gov't. Objects to Asarco's Estimation Plea
ASBESTOS LITIGATION: McKinley, Everest's Late Claims Plea Denied
ASBESTOS LITIGATION: Nov. 23 Set As Last Day for Filing Claims
ASBESTOS LITIGATION: La. Court Grants Chiasson's Bid to Remand
ASBESTOS LITIGATION: Fenech's Family Awarded EUR103T in Payout
ASBESTOS LITIGATION: Del. Court Favors Defendants in Marmon Suit
ASBESTOS LITIGATION: Court Issues Split Rulings in Winrow Action
ASBESTOS LITIGATION: Appeals Court Denies Grand Trunk's Request
ASBESTOS LITIGATION: ACMAT Corp.'s Motion Denied in Madden Case
ASBESTOS LITIGATION: Pantalone's Suit v. Buffalo Pumps Remanded
ASBESTOS LITIGATION: Brumby Apologizes to Victims in Parliament
ASBESTOS LITIGATION: Compensation Awarded to Dickerson's Family
ASBESTOS LITIGATION: Maytag, Whirpool Seek Dismissal of Korando
ASBESTOS LITIGATION: Hardie Claims Enough Funds to Pay Liability
ASBESTOS LITIGATION: Philips Records EUR241Mil Charge for Claims
ASBESTOS LITIGATION: ONCONASE Being Evaluated as Cancer Medicine
ASBESTOS LITIGATION: Travelers Reports $46M Increase to Reserves
ASBESTOS LITIGATION: Libby Claimants Reconsideration Bid Denied
ASBESTOS LITIGATION: Bernick Awaits Resolution to Pacific Claim
ASBESTOS LITIGATION: Bernick Awaits Resolution to Bayshore Claim
ASBESTOS LITIGATION: Jones Awaits Resolution on CSU Settlement
ASBESTOS LITIGATION: Grace Prevails in General Services Lawsuit
ASBESTOS LITIGATION: Court Favors Grace in Macerich Fresno Case
ASBESTOS LITIGATION: Organizations Decry CDN6.5M ZAI Settlement
ASBESTOS LITIGATION: MMIC & Everest Seek Changes in Neutrality
ASBESTOS LITIGATION: Oral Argument in ASARCO Presented on Oct. 7
ASBESTOS LITIGATION: Sterlite May Withdraw $2.6B ASARCO LLC Deal
ASBESTOS LITIGATION: Supreme Court Rules on Claims on October 15
ASBESTOS LITIGATION: Gilliver Death Linked to Exposure to Hazard
ASBESTOS LITIGATION: Wallington Death Linked to Hazard Exposure
ASBESTOS LITIGATION: Taylor's Death Linked to Exposure to Hazard
ASBESTOS LITIGATION: Tonbridge Police Warns of Missing Asbestos
*********
AUDIOVOX CORP: Still Faces Lawsuit Over Cell Phone Radiation
------------------------------------------------------------
Audiovox Corp. and other suppliers, manufacturers and
distributors of hand-held wireless telephones continue to face
certain consolidated class actions that were transferred by the
Multi-District Litigation Panel to the U.S. District Court of
the District of Maryland.
The suits are generally alleging damages relating to exposure to
radio frequency radiation from hand-held wireless telephones.
The company reported no development in the matter in its Oct. 9,
2008, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended Aug. 31, 2008.
Audiovox Corp. -- http://www.audiovox.com/-- is an
international distributor and value added service provider in
the accessory, mobile and consumer electronics industries.
CARMAX INC: Faces Securities Fraud Litigation in E.D. Virginia
--------------------------------------------------------------
CarMax, Inc., is facing a purported securities fraud class
action in the U.S. District Court for the Eastern District of
Virginia, according to the company's Oct. 9, 2008 Form 10-Q
Filing with the U.S. Securities and Exchange Commission for the
quarter ended Aug. 31, 2008.
On Aug. 6, 2008, Peter Rangos filed a putative a class action
against CarMax, Inc., certain CarMax officers and a CarMax
director.
The plaintiff primarily alleges that the defendants violated
federal securities laws through the dissemination or approval of
false and misleading statements. The plaintiff seeks
compensatory damages and the recovery of attorneys' fees.
The suit is "Rangos v. Carmax, Inc. et al., Case No. 1:08-cv-
00821-LO-TCB," filed in the U.S. District Court for the Eastern
District of Virginia, Judge Liam O'Grady, presiding.
Representing the plaintiffs is:
Craig Crandall Reilly, Esq.
Law Office of Craig C. Reilly
111 Oronoco Street
Alexandria, VA 22314
Phone: 703-549-5354
Fax: 703-549-2604
e-mail: craig.reilly@ccreillylaw.com
CARMAX INC: Settles Md. Litigation Over Vehicle's Rental History
----------------------------------------------------------------
CarMax, Inc., settled a purported class action pending before
the Baltimore County Circuit Court in Maryland over allegations
that the company has not properly disclosed its vehicles' rental
history.
Regina Hankins filed the suit on June 12, 2007. The plaintiff
seeks compensatory damages, punitive damages, injunctive relief,
and the recovery of attorneys' fees.
The company settled this matter, pending judicial approval,
according to the company's Oct. 9, 2008 Form 10-Q Filing with
the U.S. Securities and Exchange Commission for the quarter
ended Aug. 31, 2008.
CarMax, Inc. -- http://www.carmax.com/-- is a holding company
and its operations are conducted through its subsidiaries. The
company is a retailer of used cars.
CARNIVAL CORP: Still Faces Copyright Violations Lawsuit in N.Y.
---------------------------------------------------------------
Carnival Corp. and its subsidiaries and affiliates, and other
unaffiliated cruise lines is still facing a purported class
action in New York alleging copyright violations.
In January 2006, a lawsuit was filed against Carnival Corp. on
behalf of a purported class of owners of intellectual property
rights to musical plays and other works performed in the U.S.
The plaintiffs claim infringement of copyrights to Broadway, off
Broadway and other plays.
The suit seeks payment of damages, disgorgement of alleged
profits, and an injunction against future infringement.
The company reported no development in the matter in its Sept.
26, 2008 Form 10-Q Filing with the U.S. Securities and Exchange
Commission for the quarter ended Aug. 31, 2008.
Carnival Corp. -- http://www.carnivalcorp.com/-- is a cruise
company having a portfolio of cruise brands and is a provider of
cruises to all vacation destinations. The cruise brands of the
Company includes Carnival Cruise Lines, Princess Cruises, Costa
Cruises, Holland America Line, P&O Cruises, Cunard Line, AIDA
Cruises, P&O Cruises Australia, Ocean Village, Ibero Cruises and
The Yachts of Seabourn. In addition to the cruise operations,
the company owns Holland America Tours and Princess Tours.
COPART INC: La. Court Junks Remaining Claims in Antitrust Suit
--------------------------------------------------------------
The U.S. District Court for the Middle District of Louisiana
dismissed the federal antitrust claims in a purported antitrust
class action filed against Copart, Inc.
On July 28, 2006, Foreign Car Sales and Service LLC filed the
suit against Copart with the U.S. District Court for the Middle
District of Louisiana, originally alleging antitrust violations
and unfair trade practices.
Relief sought originally included class certification based on
both unfair trade practices and Sherman Act violations, damages,
fees, costs and expenses.
On Jan. 5, 2007, the Magistrate required FCS to amend its
complaint.
A First Amended Complaint was rejected, and a Second Amended
Complaint was submitted Feb. 16, 2007, in which FCS abandoned
its unfair trade practices claims, and now relies simply on
breach of contract claims.
On Aug. 23, 2007, Copart filed:
-- a motion to dismiss claims for improper venue;
-- a motion to dismiss for failure to join persons needed
for just adjudication;
-- a motion to dismiss for lack of diversity jurisdiction;
-- a motion to dismiss load out fee class action for
failure to state claim; and
-- a motion to dismiss load out fee class action for lack
of diversity jurisdiction.
On Feb. 22, 2008, the court granted the motions to dismiss with
regard to all claims, leaving only the anti-trust claim pending.
On July 15, 2008, the federal antitrust claims were dismissed
with prejudice. No material claims remain, according to the
company's Sept. 29, 2008 Form 10-K Filing with the U.S.
Securities and Exchange Commission for the fiscal year ended
July 31, 2008.
The suit is "F.C.S. L.L.C. v. Copart Inc., Case No.
3:06-cv- 00535-FJP-SCR," filed in the U.S. District Court for
the Middle District of Louisiana, Judge Frank J. Polozola
presiding.
Representing the plaintiffs is:
Kimuel Wayne Lee, Esq.
16137 Berryhill Drive
Baton Rouge, LA 70817
Phone: 225-751-3775
Representing the defendants is:
Charles A. Schutte, Jr., Esq. (cschutte@gmstl.com)
Guglielmo, Marks, Schutte, Terhoeve & Love
320 Somerulos Street
Baton Rouge, LA 70802
Phone: 225-387-6966
Fax: 225-387-8230
DHL EXPRESS: Faces Lawsuit in N.Y. Over Jet Fuel Surcharges
-----------------------------------------------------------
DHL Express (USA), Inc. is facing a class-action complaint filed
in the U.S. District Court for the Western District of New York
alleging it charges jet fuel surcharges on packages it carries
by ground, the CourtHouse News Service reports.
This breach of contract case is brought as a nationwide class
action to recover damages from DHL, a package delivery company
that has been improperly charging the plaintiff and the members
of the class jet fuel surcharges for package deliveries that DHL
transports solely by ground transportation.
This class action seeks to hold DHL to the terms of its own
bargain with plaintiff and the members of the class.
This action is properly maintainable as a class action pursuant
to Federal Rule of Civil Procedure 23 on behalf of all
individuals and entities who have, at any time from 2003 to the
date of any class certification order, paid DHL a jet fuel
surcharge for package deliveries within the United States that
DHL transported solely by ground transportation.
Plaintiffs demand judgment against DHL as follows:
a) For damages, in an amount to be determined at trial,
plus interest;
b) For attorneys fees and costs of suit; and
c) For award of such other and further relief as this Court
deems just and proper.
The suit is "Jim Ball Pontiac-Buick-GMC, Inc., et al. v. DHL
Express (USA), Inc., et al., Case Number: 1:2008cv00761," filed
in the U.S. District Court for the Western District of New York,
Hon. John T. Curtin, presiding.
Representing plaintiffs are:
Joseph V. Sedita, Esq.
Kevin M. Kearney, Esq.
John L. Sinatra, Jr., Esq.
140 Pearl Street, Suite 100
Buffalo, New York 14202
Telephone: (716) 856-4000
DIEDRICH COFFEE: Settles Labor-Related Litigation in California
---------------------------------------------------------------
Diedrich Coffee, Inc., reached a tentative settlement in a
purported class action over allegations that it violated labor
laws.
On Sept. 21, 2006, a purported class-action complaint entitled,
"Jason Reid; Kimberly Cornia, et al. v. Diedrich Coffee, et
al.," was filed in the U.S. District Court for the Central
District of California by two former employees, who worked in
the positions of team member and shift manager.
The case involves the issue of whether employees and former
employees who worked in California stores during specified time
periods were deprived of overtime pay, missed meal and rest
breaks.
In addition to unpaid overtime, this case seeks to recover
waiting time penalties, interest, attorneys' fees and other
types of relief on behalf of the current and former employees in
the purported class.
The parties have now agreed to a tentative settlement wherein
the company will pay up to a maximum of $900,000 to resolve all
the outstanding matters in this law suit.
This settlement is subject to court approval. As of June 25,
2008, the company estimates that the required amount to settle
this claim is $693,000, according to the company's Oct. 8, 2008
Form 10-K Filing with the U.S. Securities and Exchange
Commission for the fiscal year ended June 25, 2008.
Diedrich Coffee, Inc. -- http://www.diedrich.com/-- is a
specialty coffee roaster, wholesaler and retailer. The company
sells brewed, espresso-based and various blended beverages
primarily made from its own fresh roasted premium coffee beans,
as well as light food items, whole bean coffee and accessories,
through company operated and franchised retail locations.
DIEDRICH COFFEE: Settles "Willems" Labor Litigation in Calif.
-------------------------------------------------------------
Diedrich Coffee, Inc., settled a purported class action over
allegations that it violated California labor laws, according to
the company's Oct. 8, 2008 Form 10-K Filing with the U.S.
Securities and Exchange Commission for the fiscal year ended
June 25, 2008.
The purported class-action complaint is entitled, "Deborah
Willems, et al. v. Diedrich Coffee., et al." It was filed in
Orange County, California Superior Court on Feb. 2, 2007, on
behalf of another former employee who worked in the position of
general manager.
The case involves the issue of whether employees and former
employees who worked in California stores during specified time
periods were deprived of overtime pay, missed meal and rest
breaks.
In addition to unpaid overtime, the case seeks to recover
waiting time penalties, interest, attorneys' fees and other
types of relief on behalf of the current and former employees in
the purported class.
The company have entered into a settlement with the plaintiffs
in the "Willems v. Diedrich." The settlement is subject to
court approval. As of June 25, 2008, the company estimates that
the required amount to settle this claim is $251,000.
Diedrich Coffee, Inc. -- http://www.diedrich.com/-- is a
specialty coffee roaster, wholesaler and retailer. The company
sells brewed, espresso-based and various blended beverages
primarily made from its own fresh roasted premium coffee beans,
as well as light food items, whole bean coffee and accessories,
through company operated and franchised retail locations.
EVERGREEN ROYALLE: 28 Day Shuffle is Illegal, Calif. Suit Says
--------------------------------------------------------------
The Evergreen Royalle, a residency hotel in Anaheim, Calif., is
facing a class-action complaint filed in Orange County Superior
Court, Civil Complex Center in the State of California that
alleges it forces tenants to check out for one day a month, to
duck its legal obligations to them, the CourtHouse News Service
reports.
Named plaintiff Joleen LaVergne brings this action pursuant to
the Code of Civil Procedure Section 382 on behalf of all persons
who resided at defendant's residential hotels and within three
years of the date of filing of the original complaint were
required to move out or to check out and register before the
expiration of 30 consecutive days of occupancy.
California's Civil Code Section 1940 excludes from its consumer
protections people with "transient occupancy." To curb just such
an abuse, the Legislature enacted Civil Code Section 1940.1,
which prohibits the 28 Day Shuffle. Violations are punishable by
a fine of $500.
The named plaintiff says she was evicted for a day nine times in
9 months.
Plaintiff requests for judgment as follows:
-- for an order certifying this matter as a class action;
-- for a civil penalty for each violation suffered by
plaintiff and the class;
-- for compensatory damages;
-- for interest on the sum of money awarded as damages or
as civil penalties;
-- for reasonable attorney's fees pursuant to Civil Code
Section 1940.1, pursuant to Civil Code Section 52(b)(3),
Civil Code Section 52.1(h), pursuant to the Private
Attorney General doctrine in Code of Civil Procedure
Section 1021.5, pursuant to the "common fund" doctrine,
and pursuant to the "substandard benefit" doctrine;
-- for costs of suit incurred; and
-- for such other and further relief as the court may deem
proper.
The suit is "Joleen LaVergne et al. v. Evergreen Royalle, Ltd.,
Case No. 30-2008-00212468," filed in Orange County Superior
Court, Civil Complex Center in the State of California.
Representing plaintiffs is:
Jeffrey Wilens, Esq.
Lakeshore Law Center
17476 Yorba Linda Blvd., Suite 221
Yorba Linda, CA 92886
Phone: (714) 854-7205
Fax: (714) 854-7206
e-mail: jeff@lakeshorelaw.org
HIENERGY TECHNOLOGIES: Securities Settlement Hearing Set Dec. 15
----------------------------------------------------------------
The U.S. District Court for the Central District of California
will hold a hearing on December 15, 2008 at 2:00 p.m. to a
settlement with the chapter 7 bankruptcy trustee in connection
with a class action pending against HiEnergy Technologies, Inc.
(Pink Sheets:HIET).
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 (Class Action
Reporter, Oct. 3, 2008).
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.
Deadline to file for objection is on November 14, 2008 (Class
Action Reporter, Oct. 10, 2008).
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
IPEX INC: Faces Colo. Lawsuit Over "Kitec" Plumbing Systems
-----------------------------------------------------------
Ipex Inc. is facing a class-action complaint filed in the U.S.
District Court for the District of Colorado alleging it makes
defective and dangerous "Kitec" plumbing systems, the CourtHouse
News Service reports.
This class action seeks damages, punitive damages, injunctive
relief, costs, attorneys' fees, and other relief as a result of
defendants' willful, wanton, reckless, and/or grossly negligent
conduct in causing consumes' homes to be in a dangerous,
defective, unsafe, and unfit condition for habitation.
Plaintiff seeks to bring this case as a class action, under
Federal Rule of Civil Procedure 23, on behalf of all persons,
trusts, corporations, partnerships, associations, and/or
entities in the United States that own real property in which
the Kitec plumbing system has been installed as well as any
individual or entity that paid for damage caused by the Kitec
plumbing system or repairs of such a system.
Plaintiff wants the court to rule on:
(a) whether defendants have sold a defective product in the
stream of commerce in violation of Colorado Products
Liability Act, Colo. Rev. Stat. Section 13-21-401 to
13-21-406 (2004);
(b) whether defendants have failed to prevent the damages
due to the defective product they designed,
manufactured and sold into the stream of commerce;
(c) whether defendants have failed to warn consumers about
the reasonably foreseeable dangers of using the Kitec
plumbing system;
(d) whether defendants have breached an implied warranty;
(e) whether defendants have breached express warranty;
(f) whether defendants have breached the warranty of
merchantability;
(g) whether defendants have acted negligently;
(h) whether defendant were unjustly enriched by the sale of
the defective product;
(i) whether defendants' conduct should be enjoined; and
(j) whether the members of the class have sustained damages
and, if so, the proper measure of such damages.
Plaintiff demands that the court:
-- declare, adjudge and decree that defendants have
committed the violations of state law alleged;
-- determine that under Federal Rule of Civil Procedure 23,
this civil action may be maintained as a class action,
and certify it as such;
-- order that judgment is entered for plaintiff and the
class on their claims against the defendants on the
claims for relief;
-- enjoining the defendants from committing the violations
of law alleged;
-- award plaintiff and the class damages, as determined at
trial;
-- award plaintiff and the class restitution as determined
at trial;
-- order defendants to disgorge their ill-gotten gains and
otherwise preclude the defendants from retaining their
unjust enrichment;
-- award plaintiff and the class punitive damages, as
determined at trial;
-- award plaintiff and the class their costs, including
counsel and experts' fees, pre- and post-judgment
interest; and
-- order such other and further relief as the court may
deem just and proper.
The suit is "Thomas Olsen et al. v. IPEX, Inc. et al., Case No.
08-CV-02220," filed in the U.S. District Court for the District
of Colorado.
Representing plaintiffs is:
Michael Plachy, Esq.
Rothgerber, Johnson & Lyons LLP
One Tabor Center
1200 Seventeenth Street, Suite 3000
Denver, CO 80202-5855
Phone: (303) 623-9000
Fax: (303) 623-9222
e-mail: mplachy@rothberger.com
LEVI STRAUSS: Oct. 17 Hearing Set for California Suit Settlement
----------------------------------------------------------------
An Oct. 17, 2008 fairness hearing is scheduled for the proposed
settlement in a consolidated securities fraud class action
against Levi Strauss & Co., which is pending in the U.S.
District Court for the Northern District of California.
The suit, "In re Levi Strauss & Co., Securities Litigation, Case
No. C-03-05605 RMW," is in connection with the company's April
6, 2001 and June 16, 2003 registered bond offerings.
Aside from Levi Strauss, the suit also names as defendants:
-- the company's chief executive officer,
-- its former chief financial officer,
-- its corporate controller,
-- its directors, and
-- its underwriters.
The court appointed a lead plaintiff and approved the selection
of lead counsel in the matter. The action purports to be
brought on behalf of purchasers of the company's bonds who made
purchases pursuant or traceable to the company's prospectuses
dated March 8, 2001, or April 28, 2003, or who purchased the
company's bonds in the open market from Jan. 10, 2001, to Oct.
9, 2003.
The action makes claims under the federal securities laws,
including Sections 11 and 15 of the U.S. Securities Act of 1933,
and Sections 10(b) and 20(a) of the U.S. Securities Exchange Act
of 1934, relating to the company's U.S. Securities and Exchange
Commission filings and other public statements.
Specifically, the action alleges that certain of the company's
financial statements and other public statements during this
period materially overstated its net income and other financial
results and were otherwise false and misleading, and that the
company's public disclosures omitted to state that it made
reserve adjustments that plaintiffs allege were improper.
The plaintiffs contend that these statements and omissions
caused the trading price of the company's bonds to be
artificially inflated. They seek compensatory damages as well
as other relief.
On July 15, 2004, the company filed a motion to dismiss the
case. The matter came before the court on Oct. 15, 2004, and,
after oral arguments had concluded, the court took the matter
under submission.
On Sept. 11, 2007, the court dismissed the Section 10(b) and
20(a) claims in the case and dismissed the tax fraud aspects of
the Section 11 and 15 claims.
The court also limited the plaintiff class on the Section 11 and
15 claims by eliminating from the class those bondholders who
purchased the bonds in private offerings and then exchanged them
for registered bonds in the subsequent exchange offer.
The plaintiffs filed an amended complaint with respect to the
tax-fraud claims Jan. 14, 2008, and the company stipulated with
the plaintiffs that its response will be due on or before March
21, 2008, subject to court approval.
On Feb. 22, 2008, the parties agreed to settle the matter. The
parties finalized their settlement agreement, and the court
granted preliminary approval of the settlement of this matter on
July 21, 2008. A hearing for final approval of the settlement
has been scheduled for Oct. 17, 2008, according to the company's
Oct. 2, 2008 Form 10-Q Filing with the U.S. Securities and
Exchange Commission for the quarter ended Aug. 24, 2008.
The suit is "In re Levi Strauss & Co., Securities Litigation,
Case No. 5:03-cv-05605-RMW," filed in the U.S. District Court
for the Northern District of California, Judge Ronald M. Whyte,
presiding.
Representing the plaintiffs are:
Robert A. Jigarjian, Esq.
Green Welling, LLP
235 Pine Street, 15th Floor
San Francisco, CA 94104
Phone: 415-477-6700
Fax: 415-477-6710
e-mail: cand.uscourts@classcounsel.com
Robert Gans, Esq. (robert@blbglaw.com)
Bernstein Litowitz Berger & Grossman, LLP
12481 High Bluff Drive, Suite 300
San Diego, CA 92130
Phone: 858-793-0070
- and -
Jill Manning, Esq. (jmanning@kmslaw.com)
Kirby McInerney & Squire, LLP
7665 Redwood Blvd., Suite 200
Novato, CA 94945
Phone: 415-898-8160
Representing the defendants are:
Erin E. Schneider, Esq. (eschneider@gibsondunn.com)
Austin Van, Esq. (aschwing@gibsondunn.com)
Schwing of Gibson, Dunn & Crutcher LLP
One Montgomery St., 31st Floor
San Francisco, CA 94104
Phone: 415-393-8276
415-393-8210
Fax: 415-374-8458
MENU FOODS INCOME FUND: N.J. Court Certifies Settlement Class
-------------------------------------------------------------
Menu Foods Income Fund (TSX: MEW.UN) announced that the United
States District Court for the District of New Jersey has
certified the Settlement Class and given final approval of the
comprehensive Settlement Agreement in the Pet Food Multi-
District Litigation.
The Settlement Agreement must also be approved by the Canadian
courts. The motion for final approval in the Canadian courts is
scheduled for November 3, 2008 and, if final Canadian court
approval is obtained and no appeals are made, the settlement
procedures would be implemented shortly thereafter.
The Settlement Agreement would resolve more than 100 class
action lawsuits filed in U.S. and Canadian courts relating to
the recall of pet food and would be binding on all members of
the Settlement Class, except for those individuals who have
validly opted out of the settlement.
As previously disclosed, the Settlement Agreement creates a
Settlement Fund of US$24 million that will allow a potential
recovery of up to 100% of all economic damages incurred by pet
owners, subject to certain limitations. The Settlement Fund,
administered by a neutral claims administrator, will be
available to persons in the United States and Canada who
purchased or obtained, or whose pets used or consumed, recalled
pet food.
Pursuant to the Settlement Agreement, the Settlement Fund will
be funded by the defendants, including Menu Foods and its
product liability insurer. Menu Foods' corporate contribution to
the settlement is within Menu Foods' previously published
estimate for recall costs of C$55 million.
Paul Henderson, CEO of Menu Foods, commented: "The U.S. court
approval is a significant milestone. If the Canadian courts
approve the settlement, pet owners affected by the 2007 pet food
recalls will receive compensation for their losses. Menu Foods
looks forward to final resolution of this matter, which will
enable us to focus on continuing the significant progress that
has been made in rebuilding our business, namely delivering
quality products to existing and new customers across North
America."
Persons with potential claims should not contact Menu Foods, but
can contact the claims administrator:
In re Pet Food Products Liability Litigation
Claims Administrator
c/o Heffler, Radetich & Saitta LLP
P.O. Box 890
Philadelphia, PA 19105-0890
Phone: 1-800-392-7785
Web site: http://www.petfoodsettlement.com
NATURE'S SUNSHINE: 2010 Trial Set for Utah Securities Fraud Suit
----------------------------------------------------------------
A tentative April 19, 2010 trial is slated for the consolidated
securities fraud class action pending against Nature's Sunshine
Products, Inc. in the U.S. District Court for the District of
Utah.
Between April 3, 2006 and June 2, 2006, five separate
shareholder class actions were filed against the company and
certain of our present and former officers and directors in the
U.S. District Court for the District of Utah.
These matters were consolidated and on Nov. 3, 2006, the
plaintiffs filed a Consolidated Complaint against the company,
its Chief Executive Officer and former director, Douglas
Faggioli, its former Chief Financial Officer, Craig D. Huff, and
a former director and former Chair of its Audit Committee, Franz
L. Cristiani.
The consolidated complaint asserts three separate claims on
behalf of purchasers of the company's common stock:
-- a claim against Mr. Faggioli and the company for
violation of Section 10(b) of the Exchange Act and
Rule 10b-5 promulgated thereunder, alleging that Mr.
Faggioli made a series of alleged material
misrepresentations to the investing public;
-- a claim against Mr. Faggioli and the company for
violation of Section 10(b) and Rule 10b-5, alleging
that Mr. Faggioli made a series of misrepresentations
to the company's then independent auditor, KPMG, LLP,
for the purpose of obtaining unqualified or "clean"
audit opinions and review opinions from KPMG
concerning certain of our annual and quarterly
financial statements; and
-- a claim against Messrs. Faggioli, Huff and Cristiani
for violation of Section 20(a) of the Exchange Act,
alleging that the individual defendants have "control
person" liability for the previously-alleged
violations by the company.
The Consolidated Complaint seeks an unspecified amount of
compensatory damages, together with interest thereon, litigation
costs and expenses, including attorneys' fees and expert fees,
and any such other and further relief as may be allowed by law.
On Jan. 5, 2007, the company and Messrs. Faggioli, Huff and
Cristiani moved to dismiss the Consolidated Complaint in its
entirety.
On May 21, 2007, the court issued its decision denying the
motion in large part, but shortening the proposed class period
on one of the plaintiffs' claims.
On June 6, 2007, the company and the other defendants answered
the Consolidated Complaint, wherein they denied all allegations
of wrongdoing and raised a number of affirmative defenses.
On Nov. 1, 2007, the plaintiffs filed their motion for class
certification, which the company opposed.
On Sept. 25, 2008, the court granted the plaintiffs' motion for
class certification in part, establishing the class as all
persons who purchased or otherwise acquired the company's common
stock, and were damaged thereby, from March 16, 2005 to March
20, 2006.
On May 9, 2008, at the invitation of the court based upon recent
case law developments, the company filed a motion to dismiss the
plaintiffs' second cause of action (a 10b-5 claim based on non-
public representations to KPMG). The plaintiffs opposed this
motion. On Sept. 23, 2008, the court granted the company's
motion and dismissed the plaintiffs' second cause of action.
The case is currently in the early stages of discovery. The
trial is not scheduled to commence until April 19, 2010,
according to the company's Oct. 7, 2008 Form 10-K Filing with
the U.S. Securities and Exchange Commission for the fiscal year
ended Dec. 31, 2007.
The suit is "Hyman v. Nature's Sunshine Products et al., Case
No. 2:06-cv-00267-TS-SA," filed in the U.S. District Court for
the District of Utah, Judge Ted Stewart, presiding.
Representing the plaintiffs is:
John R. Climaco, Esq.
Climaco Lefkowtiz Peca Wilcox & Garofoli
55 Public Sq., Ste 1950
Cleveland, OH 44113-1972
Phone: (216) 621-8484
- and -
Gary A. Dodge, Esq.
Hatch James & Dodge
10 W Broadway, Ste. 400
Salt Lake City, UT 84101
Phone: (801) 363-6363
e-mail: gdodge@hjdlaw.com
Representing the defendants are:
Karen Pieslak Pohlmann, Esq.
(kpohlmann@morganlewis.com)
Morgan Lewis & Bockius, P.A.
1701 Market St.
Philadelphia, PA 19103-2921
Phone: (215) 963-5000
- and -
Erik A. Christiansen, Esq. (ecf@parsonsbehle.com)
Parsons Behle & Latimer
201 S. Main St., Ste. 1800
P.O. Box 45898
Salt Lake City, UT 84145-0898
Phone: (801) 532-1234
NEVIS MOBILE: "Duffy" Unauthorized Charges Lawsuit Certified
------------------------------------------------------------
On October 7, 2008, an order was entered in the Circuit Court of
Cook County certifying a nationwide class of cell phone
customers against Nevis Mobile, LLC, a leading mobile content
provider.
The lawsuit, "Duffy v. Nevis Mobile (Cook County, 08 CH 21376),"
alleges that Nevis Mobile wrongfully charged thousands of people
for mobile content they never authorized.
Attorneys representing the class from the law firm of
KamberEdelson LLC call the decision an important one for
consumers. Allegedly, often times cell phone users may review
their bills and not even realize what the charges are for. In
many cases, customers are provided only with cryptic line-item
descriptions of the charges under headings such as "premium
services" and are often enrolled against their will in
subscription plans ranging from $6.99 to $9.99 monthly.
Additionally, customers reportedly experienced difficulty when
trying to contact Nevis Mobile about canceling the services and
obtaining refunds.
The Court has now ordered that notice of the class action be
sent to class members in some instances by direct email notice,
through the creation and the maintenance of a website and
through this press release.
Deadline to file for exclusion is on November 26, 2008.
For more information, contact:
Jay Edelson
KamberEdelson LLC
53 West Jackson, Suite 550
Chicago, IL 60604
Phone: 312-589-6370
OLIVIER CHENG: Workers Sue Catering Company for Labor Law Breach
----------------------------------------------------------------
Two workers allege that Olivier Cheng Catering and Events, LLC
and its owners, Olivier Cheng and Franck Cursat, misappropriated
tips and did not pay workers proper overtime wages in violation
of the federal Fair Labor Standards Act and the New York Labor
Law.
According to the Complaint, Cheng Catering -- one of New York's
most popular catering firms with clients that include
celebrities and luxury fashion houses -- has enjoyed great
success "at the expense of its hourly food service workers to
whom it has failed to pay proper overtime compensation and from
whom it has misappropriated 'service charges' paid by Cheng
Catering's clients."
The two workers who brought the suit allege that the defendants
broke federal and New York labor laws by failing to pay "a
proper overtime premium for the hours that they worked over 40
in a workweek." They also allege that they "misappropriated
'service charges'" and "led their clients entering into
contracts to reasonably believe that such 'service charges'
and/or mandatory gratuities were for the workers."
Linda A. Neilan, an attorney at Outten & Golden LLP, stated,
"Keeping workers' tips and failing to pay them proper overtime
compensation may reduce overhead, but blatant labor law
violations can generate tremendous legal liability. This lawsuit
is the latest in a series of cases that we hope will put the New
York restaurant and catering industry on notice that workplace
lawlessness is unacceptable."
Rachel M. Bien, an attorney at Outten & Golden LLP, added, "As
one of New York's most exclusive catering companies, with
clients such as Louis Vuitton, Hermes, and Bulgari, Olivier
Cheng should fairly and lawfully treat the dedicated workers who
helped make the company so popular and lucrative for its
owners."
Justin M. Swartz, Linda A. Neilan, and Rachel M. Bien of Outten
& Golden LLP in New York, represent the plaintiffs and the
class. The case is "McMahon v. Olivier Cheng Catering and
Events, LLC," (Southern District of New York, Case No.
08 Civ. 8713).
Outten & Golden LLP will seek to have the lawsuit certified as a
class action that includes all servers, waiters, bussers,
bartenders, captains, and other hourly food service workers who
have worked for Cheng Catering since Oct. 10, 2002.
For more information, contact:
Justin M. Swartz
Linda A. Neilan
Rachel M. Bien
Outten & Golden LLP
3 Park Avenue, 29th Floor
New York, New York 10016
Phone: (212) 245-1000
Web site: http://www.outtengolden.com
PACIFIC LIFE: Bundles Hidden Charges, Calif. Lawsuit Alleges
------------------------------------------------------------
Pacific Life Insurance is facing a class-action complaint filed
in the U.S. District Court for the Central District of
California alleging it bundles hidden charges into variable life
insurance policies, the CourtHouse News Service reports.
Plaintiffs bring this case as a class action under Federal Rules
of Civil Procedures 23, on behalf of all persons who purchased a
life insurance policy from defendant during the applicable
statute of limitations which contains:
(1) a cost of insurance charge;
(2) additional but separate policy charges or expenses;
(3) an investment, interest bearing, or savings component;
and
(4) death benefit.
Plaintiffs want the court to rule on:
(a) whether defendant charged additional loads within its
cost of insurance charges;
(b) whether defendant breached the express and/or implied
terms of its policies by concealing and charging
additional loads within its cost of insurance charges;
(c) whether defendant committed an unlawful and unfair
business practice by misrepresenting and unlawfully
profiting from additional loads within its cost of
insurance charges;
(d) whether the plaintiff class sustained damages as a
result of defendant's unlawful conduct; and
(e) whether the plaintiff and class is entitled to damages,
restitution, and/or other equitable relief as a
proximate result of defendant's unlawful conduct.
Plaintiffs request for relief as follows:
-- an order certifying the case as class action under
Federal Rules of Civil Procedures 23;
-- compensatory and statutory damages, penalties and
restitution, as appropriate and available under each
cause of action, in an amount to be proven at trial
based on, inter alia, the undisclosed loads included
within the cost of insurance charge;
-- exemplary and punitive damages, as appropriate and
available under each cause of action;
-- an order enjoining defendant from pursuing the unlawful
policies, acts and practices complained of;
-- attorneys' fees;
-- costs of suit;
-- pre- and post-judgment interest; and
-- such other and further relief as the court deems just
and equitable.
The suit is "Freeman Investments LP et al. v. Pacific Life
Insurance Company, Case No. SACV 08-01134 DOC," filed in the
U.S. District Court for the Central District of California.
Representing plaintiffs are:
Lee A. Sherman
Charles S. Russell
Callahan McCune & Willis, APLC
111 Fashion Lane
Tustin, California 92780
Phone: (714) 730-5700
Fax: (714) 730-1642
PALL CORP: Seeks Dismissal of Amended Complaint in N.Y. Lawsuit
---------------------------------------------------------------
Pall Corp. is seeking for the dismissal of an amended complaint
in the consolidated securities fraud class action filed against
the company in the U.S. District Court for the Eastern District
of New York.
Initially, four putative class actions were filed against the
Company and certain members of its management team alleging
violations of the federal securities laws relating to the
Company's understatement of certain of its U.S. income tax
payments and of its provision for income taxes in certain prior
periods.
These lawsuits were filed between Aug. 14, 2007, and Oct. 11,
2007, with the U.S. District Court for the Eastern District of
New York.
The plaintiffs principally alleged that the defendants violated
the federal securities laws by issuing materially false and
misleading public statements about the company's financial
results, financial statements, income tax liability, effective
tax rate and internal controls. They seek unspecified
compensatory damages, costs and expenses.
On Oct. 15, 2007, various plaintiffs and groups of plaintiffs
filed motions seeking to consolidate the cases and to be
appointed lead plaintiff.
By Order dated May 28, 2008, the Court consolidated the cases
under the caption "In re Pall Corp. Securities Litigation, Case
No. 07-CV-3359 (E.D.N.Y.) (JS) (ARL)," appointed a lead
plaintiff and ordered that the lead plaintiff file a
consolidated amended complaint.
The lead plaintiff filed its consolidated amended complaint on
Aug. 4, 2008. The lead plaintiff seeks to act as representative
for a class consisting of purchasers of the company's stock
between April 20, 2007, and Aug. 2, 2007, inclusive.
The consolidated amended complaint names the company, Eric
Krasnoff and Lisa McDermott as defendants and alleges violations
of Section 10(b) and 20(a) of the U.S. Exchange Act, as amended,
and Rule 10b-5 promulgated by the U.S. Securities and Exchange
Commission.
It alleges that the defendants violated these provisions of the
federal securities laws by issuing materially false and
misleading public statements about the company's financial
results and financial statements, including the company's income
tax liability, effective tax rate, internal controls and
accounting practices. The plaintiffs seek unspecified
compensatory damages, costs and expenses.
The company moved to dismiss the consolidated amended complaint
on Sept. 19, 2008, according to the company's Sept. 29, 2008
Form 10-K Filing with the U.S. Securities and Exchange
Commission for the fiscal year ended July 31, 2008.
The first identified complaint is "Robert Baughman, et al. v.
Pall Corporation, et al.," filed with the U.S. District Court
for the Eastern District of New York.
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
Representing the defendants are:
Lewis J. Liman, Esq. (maofiling@cgsh.com)
Cleary, Gottlieb, Steen & Hamilton LLP
One Liberty Plaza
New York, NY 10006
Phone: 212-225-2000
Fax: 212-255-3949
RIVERSIDE CEMENT: Faces Suits Over Hexavalent Chromium Emissions
----------------------------------------------------------------
Riverside Cement Co., a subsidiary of Texas Industries, Inc., is
facing several purported class actions over hexavalent chromium
emissions from its Crestmore cement plant in Riverside,
according to Texas Industries' Sept. 26, 2008 Form 10-Q Filing
with the U.S. Securities and Exchange Commission for the quarter
ended Aug. 31, 2008.
In late April 2008, a lawsuit was filed in Riverside County
Superior Court styled, "Virginia Shellman, et al. v. Riverside
Cement Holdings Company, et al."
The lawsuit purports to be a class action complaint seeking
medical monitoring for a putative class composed of individuals
who were allegedly exposed to hexavalent chromium emissions from
the plant.
The complaint alleges an increased risk of future illness due to
the exposure to chrome 6 and other toxic chemicals.
It requests, among other things, punitive and exemplary damages
and establishment and funding of a medical testing and
monitoring program for the class until their exposure to chrome
6 is no longer a threat to their health.
In addition to the Shellman lawsuit, four additional lawsuits
have been filed in the same court, each purporting to be a
class-action complaint for medical monitoring for a putative
class defined as students who attended or presently attend a
specified school in the vicinity of our Crestmore plant and who
were allegedly exposed to chrome 6 emissions from the plant.
The putative class in each of these cases is a subset of the
putative class in the Shellman case, and the allegations and
request for relief are nearly identical to those in the Shellman
case.
Texas Industries, Inc. -- http://www.txi.com/-- is a supplier
of heavy building materials in the U.S. The company operates
through three business segments: cement, aggregates and consumer
products. The cement segment produces gray portland cement and
specialty cements. The aggregates segment produces natural
aggregates, including sand, gravel and crushed limestone, and
specialty lightweight aggregates. The consumer products segment
primarily produces ready-mix concrete, and to a lesser extent,
packaged products. As of May 31, 2007, the company operated 91
manufacturing facilities in six states in the U.S.
SASOL NORTH: Faces Suit Over EDC Pipeline Rupture at U.S. Dock
---------------------------------------------------------------
Sasol North America, Inc., which is part of South African
diversified chemical giant Sasol Ltd.'s Olefins and Surfactants
unit, is still facing a purported class action as a result of a
1994 rupture of the ConocoPhillips ethylene dichloride (EDC)
pipeline connecting their dock to Sasol's vinyl chloride monomer
plant in the U.S., according to the company's Oct. 7, 2008 Form
20-F filing with the U.S. Securities and Exchange Commission for
the period ended June 30, 2008.
The plaintiffs sought compensatory and punitive damages as a
result of alleged exposure to EDC.
As of June 30, 2008, there is a class action and 29 lawsuits
pending, brought by over 800 plaintiffs.
The plaintiffs allege various personal injuries resulting from
exposure to EDC while the plaintiffs were employed as
contractors of ConocoPhillips to clean up the EDC or to perform
other projects on the ConocoPhillips refinery where the rupture
occurred. They seek recovery of unspecified compensating and
punitive damages.
Sasol Ltd. -- http://www.sasol.com-- is an integrated oil and
gas company with substantial chemical interests. Based in South
Africa and operating worldwide, Sasol is listed on the NYSE and
JSE stock exchanges. The company is a provider of liquid fuels
in South Africa and a major international producer of chemicals.
SYNCHRONOS TECHNOLOGIES: Lead Plaintiff Filing Deadline Set Nov.
----------------------------------------------------------------
Law Offices of Howard G. Smith announces a November 7, 2008,
deadline to move to be a Lead Plaintiff in the securities class
action filed on behalf of all purchasers of the securities of
Synchronoss Technologies, Inc. (Nasdaq: SNCR) between February
4, 2008 and June 9, 2008, inclusive.
The shareholder lawsuit is pending in the United States District
Court for the District of New Jersey.
The Complaint alleges that the defendants violated federal
securities laws by issuing material misrepresentations to the
market concerning Synchronoss' business and prospects, thereby
artificially inflating the price of Synchronoss securities.
Interested parties may move the court no later than November 7,
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, Pennsylvania 19020
Phone: (215)638-4847
Toll-Free: (888)638-4847
e-mail: howardsmithlaw@hotmail.com
Web site: http://www.howardsmithlaw.com
THOR INDUSTRIES: Faces Suits Over Formaldehyde in Housing Units
---------------------------------------------------------------
Thor Industries, Inc., has been named in several complaints,
some of which are putative class actions, filed against
manufacturers of travel trailers and manufactured homes supplied
to the Federal Emergency Management Agency to be used for
emergency living accommodations in the wake of Hurricane
Katrina.
The complaints generally allege injury due to the presence of
formaldehyde in the units, according to the company's Sept. 29,
2008 Form 10-K Filing with the U.S. Securities and Exchange
Commission for the fiscal year ended July 31, 2008.
Thor Industries, Inc. -- http://www.thorindustries.com--
produces and sells a range of recreation vehicles, and small and
mid-size buses in the U.S. and Canada. The company's principal
recreation vehicle operating subsidiaries are Airstream, Inc.,
CrossRoads RV, Dutchmen Manufacturing, Inc., Four Winds
International, Inc., Keystone RV Company, Komfort Corp., Citair,
Inc., and Damon Corp. Its principal bus operating subsidiaries
are Champion Bus, Inc., General Coach America, Inc., ElDorado
National California, Inc., ElDorado National Kansas, Inc., and
Goshen Coach, Inc. The company operates through three segments:
towable recreation vehicles, motorized recreation vehicles and
buses.
TIBCO SOFTWARE: Plaintiffs Abandon Appeal in Securities Lawsuit
---------------------------------------------------------------
The plaintiff in a consolidated securities fraud class action
filed against TIBCO Software, Inc. have dismissed their appeal
in connection to the dismissal by the U.S. District Court for
the Northern District of California of their case against the
company.
In May 2005, three purported shareholder class-action complaints
were filed against the company and several of its officers:
1. "Guzzetti v. TIBCO Software Inc., et al., Case No.
4:05-cv-02373-SBA," filed on June 10, 2006;
2. "Bernheim v. TIBCO Software Inc., et al., Case No.
4:05-cv-02205-SBA," filed on May 31, 2005; and
3. "Siegall v. TIBCO Software Inc., et al., Case No.
4:05-cv-02146-SBA," filed on May 25, 2005.
The plaintiffs sought to represent a class of purchasers of the
company's common stock from Sept. 21, 2004, through March 1,
2005.
The complaints generally alleged that the company made false or
misleading statements concerning its operating results, its
business and internal controls, and the integration of Staffware
and seek unspecified monetary damages.
They charge the defendants with violations of the U.S.
Securities Exchange Act of 1934. The plaintiffs seek
unspecified monetary damages.
The actions were consolidated and in September 2006, the U.S.
District Court for the Northern District of California dismissed
the consolidated suit with prejudice. The plaintiffs appealed
the dismissal, but then dismissed their appeal in August 2008.
Accordingly, this matter has now ended, according to the
company's Oct. 9, 2008 Form 10-K Filing with the U.S. Securities
and Exchange Commission for the fiscal year ended Aug. 31, 2008.
The suit is "Lance Siegall, et al. v. Tibco Software, Inc., et
al., Case No. 05-CV-02146," filed in the U.S. District Court for
the Northern District of California, Judge Saundra Brown
Armstrong, presiding.
Representing the plaintiffs is:
Elizabeth Pei Lin, Esq. (elin@milbergweiss.com)
Milberg Weiss LLP
One California Plaza
300 S. Grand Avenue, Suite 3900
Los Angeles, CA 90071
Phone: 213-617-1200
Fax: 213-617-1975
Representing the defendants is:
Douglas John Clark, Esq. (dclark@wsgr.com)
Wilson Sonsini Goodrich & Rosati
650 Page Mill Road
Palo Alto, CA 94304-1050
Phone: 650-493-9300
Fax: 650-565-5100
New Securities Fraud Cases
AUTHENTEC INC: Brower Piven Announces Securities Suit Filing
------------------------------------------------------------
Brower Piven, A Professional Corporation announced that a class
action has been commenced in the United States District Court
for the Middle District of Florida on behalf of purchasers of
the securities of AuthenTec, Inc. during the period between
April 28, 2008 and September 5, 2008, inclusive.
The complaint charges AuthenTec and certain of the Company's
executive officers with violations under the Securities Exchange
Act of 1934.
The complaint alleges that throughout the Class Period
defendants knew or recklessly disregarded that their public
statements concerning AuthenTec's business and operations (a
mixed-signal semiconductor business that provides fingerprint
authentication sensors and solutions to the high-volume personal
computer, wireless device, and access control markets) were
materially false and/or misleading, including withholding that
the Company's sales growth was slowing; withholding that
AuthenTec was flooding its customers with inventory; and
withholding that the Company lacked effective internal controls.
The complaint further alleges that only a matter of weeks after
defendants issued favorable revenue guidance and touted the
Company's financial performance, as well as AuthenTec's
prospects for sales and revenue growth, on September 7, 2008,
the Company revised downward its previously issued financial
guidance which caused the value of AuthenTec's shares to decline
substantially.
Interested parties may move the court no later than December 8,
2008 for lead plaintiff appointment.
For more information, contact:
Charles J. Piven
Brower Piven, A Professional Corporation
The World Trade Center-Baltimore
401 East Pratt Street, Suite 2525
Baltimore, Maryland 21202
Phone: 410/332-0030
BIOVAIL CORP: Brower Piven Announces N.Y. Securities Suit Filing
----------------------------------------------------------------
Brower Piven, A Professional Corporation announces that a class
action has been commenced in the United States District Court
for the Southern District of New York on behalf of purchasers of
the securities of Biovail Corporation during the period between
December 14, 2006 and July 19, 2007, inclusive.
The complaint charges Biovail and certain of its officers and
directors with violations under the Securities Exchange Act of
1934.
The complaint alleges that during the Class Period, Biovail, a
specialty pharmaceutical company engaged in the formulation,
clinical testing, registration, manufacture, and
commercialization of pharmaceutical products utilizing advanced
drug-delivery technologies, and the other defendants failed to
disclose that the Company's FDA application for BVF-033 failed
to meet the requirements set forth by the FDA such that approval
was likely to be materially delayed.
The complaint further alleges that after the Company issued a
July 20, 2007 press release announcing that it had received a
non-approval letter from the FDA for its new drug application
for BVF-033, the value of Biovail shares declined substantially.
Interested parties may move the court no later than December 8,
2008 for lead plaintiff appointment.
For more information, contact:
Charles J. Piven
Brower Piven, A Professional Corporation
The World Trade Center-Baltimore
401 East Pratt Street, Suite 2525
Baltimore, Maryland 21202
Phone: 410/332-0030
CANO PETROLEUM: Brower Piven Announces Securities Suit Filing
-------------------------------------------------------------
Brower Piven, A Professional Corporation announced that a class
action has been commenced in the United States District Court
for the Southern District of New York on behalf of all
purchasers who purchased the common stock of Cano Petroleum,
Inc. issued pursuant to a registration statement and prospectus
filed with the SEC in connection with Cano's June 26, 2008
secondary public offering.
The complaint charges certain of the Company's directors and
underwriters with violations of the Securities Act of 1933
including that the registration statement and prospectus filed
with the SEC for the Cano shares issued in the Secondary
Offering contained statements concerning proved reserve amounts
and standards that were materially false and overstated Cano's
proved reserves.
Interested parties may move the court no later than December 8,
2008 for lead plaintiff appointment.
For more information, contact:
Charles J. Piven
Brower Piven, A Professional Corporation
The World Trade Center-Baltimore
401 East Pratt Street, Suite 2525
Baltimore, Maryland 21202
Phone: 410/332-0030
ELAN CORP: Brower Piven Announces N.Y. Securities Suit Filing
-------------------------------------------------------------
Brower Piven, A Professional Corporation announced that a class
action has been commenced in the United States District Court
for the Southern District of New York on behalf of purchasers of
the publicly traded stock or American Depository Receipts (ADRs)
of Elan Corporation plc during the period between June 17, 2008
and July 29, 2008, inclusive.
The complaint alleges that during the Class Period, defendants
made materially false and misleading statements about a drug
Elan was developing in association with Wyeth for the treatment
of Alzheimer's disease when defendants failed to disclose
unfavorable results from a Phase II clinical study of
bapineuzumab.
The complaint further alleges that when those results were
finally disclosed, the value of Elan ADRs declined
substantially.
Interested parties may move the court no later than December 15,
2008 for lead plaintiff appointment.
For more information, contact:
Charles J. Piven
Brower Piven, A Professional Corporation
The World Trade Center-Baltimore
401 East Pratt Street, Suite 2525
Baltimore, Maryland 21202
Phone: 410/332-0030
OSKOSH CORP: Glancy Binkow Files Securities Fraud Suit in Wis.
--------------------------------------------------------------
Glancy Binkow & Goldberg LLP filed a Class Action in the United
States District Court for the Eastern District of Wisconsin on
behalf of a class consisting of all persons or entities who
purchased or otherwise acquired the common stock of Oshkosh
Corporation between February 2, 2007 and June 25, 2008,
inclusive.
The Complaint charges Oshkosh and the Company's chief executive
officer with violations of federal securities laws. Among other
things, plaintiff claims that defendants' material omissions and
dissemination of materially false and misleading statements
concerning the Company's business, operations and financial
performance, caused Oshkosh's stock price to become artificially
inflated, inflicting damages on investors.
Oshkosh designs, manufactures and markets various specialty
vehicles and vehicle bodies, including aerial work platforms and
scissor lifts, severe-duty, and heavy- and medium-payload
tactical trucks, refuse collection vehicles for the waste
services industry, and front- and rear-discharge concrete
mixers.
The Complaint alleges that throughout the Class Period
defendants knew or recklessly disregarded that their public
statements concerning Oshkosh's business, operations and
financial performance were materially false and misleading.
Specifically, the Complaint alleges that defendants
misrepresented or failed to fully disclose:
(i) problems with the performance, restructuring and
integration of Oshkosh's European refuse business, the
Geesink Norba Group ("Geesink"), and the likelihood
that the failure to integrate Geesink would result in
impairment of the Company's goodwill;
(ii) a decrease in demand for the Company's JLG access-
equipment division;
(iii) that the Company's European refuse business was
impaired and overstated and should have been written
down; and
(iv) as a result of the foregoing, defendants' Class Period
statements concerning the Company's business,
operations and financial performance were lacking any
reasonable basis.
On June 25, 2008, Oshkosh shocked investors when it announced an
expected downward revision to the Company's third-quarter fiscal
2008 earnings of approximately $2.34 per share, as a result of a
massive $175 million charge for the impairment of goodwill to be
recorded in connection with the Geesink subsidiary.
As a result of this news, the next day, Oshkosh shares plummeted
$11.22 per share -- a one-day drop of more than 33% -- on
unusually heavy volume of more than 10 million shares traded.
Plaintiff seeks to recover damages on behalf of Class members.
Interested parties may move the court no later than November 18,
2008 for lead plaintiff appointment.
For more information, contact:
Michael Goldberg, Esq.
Glancy Binkow & Goldberg LLP
1801 Avenue of the Stars, Suite 311
Los Angeles, California 90067
Phone: (310) 201-9150
Toll Free: (888) 773-9224
e-mail: info@glancylaw.com
Web site: http://www.glancylaw.com
Asbestos Alerts
ASBESTOS LITIGATION: MetLife Reports Expected Results for 3Q2008
----------------------------------------------------------------
MetLife, Inc., on Oct. 7, 2008, pre-announced its expected
results for the third quarter of 2008, according to a Company
press release dated Oct. 7, 2008.
The Company's range of operating earnings for the third quarter
of 2008 primarily reflects:
-- The previously-announced decision to commute three
excess insurance policies for asbestos-related claims,
which amounts to a reduction in operating earnings
available to common shareholders of about US$23
million, net of income tax, or US$0.03 per diluted
common share.
-- A decline in variable investment income, which is
expected to be below plan by about US$117 million, net
of income tax, or US$0.16 per diluted common share.
This decline was mostly driven by negative hedge fund
and private equity returns;
-- The impact of poor equity markets on fee revenue in the
Company's variable annuity business and a related
adjustment to deferred acquisition costs. The almost
nine percent decline in the S&P 500 in the quarter is
expected to impact results by about US$105 million, net
of income tax, or US$0.14 per diluted common share; and
-- An accrual of about US$48 million, net of income tax,
or US$0.07 per diluted common share, related to the
first phase of the Company's previously-announced
Operational Excellence initiative.
Income from continuing operations available to common
shareholders for the third quarter of 2008 is expected to be
between US$1.005 billion and US$1.150 billion, or US$1.38 to
US$1.58 per diluted common share.
Operating earnings available to common shareholders for the
third quarter of 2008 are expected to be between US$600 and
US$675 million, or US$0.83 to US$0.93 per diluted common share.
Premiums, fees and other revenues for the third quarter of 2008
were about US$8.6 billion, up 16 percent over the third quarter
of 2007 and up 12 percent over the first nine months of 2007.
C. Robert Henrikson, chairman, president & chief executive
officer of MetLife, Inc., said, "MetLife continues to be a
strong, stable leader in the financial services industry during
a challenging environment. The long-term approach we take in
managing our investment portfolio, combined with our diverse mix
of businesses, has served us well and will continue to do so in
the years ahead."
Headquartered in New York, MetLife, Inc.'s flagship insurance
company is the Metropolitan Life Insurance Company. The Company
offers life and disability insurance, retirement products, and
prepaid legal plans. The Company has three segments: Individual,
Institutional, and International.
ASBESTOS LITIGATION: Breaux's Case v. A.O. Smith Filed in Texas
----------------------------------------------------------------
Provost Umphrey attorney Brian Blevins, Esq., on Oct. 3, 3008,
filed an asbestos lawsuit on Calvin Breaux's behalf in Jefferson
County District Court, Tex., against the A.O. Smith Corp. and a
dozen other major corporations, The Southeast Texas Record
reports.
The suit says that throughout his career, Mr. Breaux worked at
area plants. The defendants entangled in the lawsuit were
negligent, failing to adequately test their asbestos-laced
products before flooding the market with dangerous goods.
In addition, the petition faults Minnesota Mining and
Manufacturing Corp. (3M Corporation) and American Optical Corp.
for producing defective masks that failed to "provide
respiratory protection."
Mr. Breaux sues for physical pain and suffering in the past and
future, mental anguish in the past and future, lost wages, loss
of earning capacity, disfigurement in the past and future,
physical impairment in the past and future, and past and future
medical expenses.
Judge Bob Wortham of the 58th Judicial District will preside
over Case No. A182-492.
ASBESTOS LITIGATION: RPM Liabilities Remain at $65Mil at Aug. 31
----------------------------------------------------------------
RPM International Inc.'s current asbestos-related liabilities
remain at US$65 million as of Aug. 31, 2008 and May 31, 2008,
compared with US$53 million as of Aug. 31, 2007, according to a
Company press release dated Oct. 9, 2008.
The Company's long-term asbestos-related liabilities were
US$478,709,000 as of Aug. 31, 2008, compared with US$278,445,000
as of Aug. 31, 2007.
The Company's long-term asbestos-related liabilities were
US$494,745,000 as of May 31, 2008. (Class Action Reporter, July
25, 2008)
Payments made for asbestos-related claims during the three
months ended Aug. 31, 2008 were US$16,037,000, compared with
US$22,823,000 for the three months ended Aug. 31, 2007.
Year-over-year asbestos indemnity and defense costs declined
nearly 30 percent to US$16 million from US$22.8 million a year
ago, reflecting the completion of prior-year transitional
expenses.
The Company's total accrued asbestos liabilities are US$543.7
million.
Frank C. Sullivan, president and chief executive officer, said,
"Our first-quarter results are in line with our internal plan.
The impact of price increases during the first quarter, along
with rigorous cost controls, should help going forward. However,
deterioration in the broader economy, as a result of the
unprecedented turmoil in the capital markets, suggests that the
balance of the year will be more volatile and difficult than we
anticipated just a few weeks ago.
"This, coupled with the benefit of our prior fiscal year tax
benefit, which may not be repeated in fiscal 2009, weak domestic
market conditions for our consumer segment and raw material cost
pressure in both segments, has caused us to be more cautious in
our outlook. We now believe our full-year results will be more
likely in the range of US$1.75 to US$1.85 per share for the
fiscal year ending May 31, 2009. This compares to US$1.75 per
diluted share in our prior fiscal year, excluding an asbestos
charge and a resultant lower effective tax rate."
Based in Medina, Ohio, RPM International Inc. has units that
produce specialty coatings and sealants serving both industrial
and consumer markets. The Company's industrial products include
roofing systems, sealants, corrosion control coatings, flooring
coatings and specialty chemicals. Industrial brands include
Stonhard, Tremco, illbruck, Carboline, Day-Glo, Euco and Dryvit.
Consumer brands include Zinsser, Rust-Oleum, DAP, Varathane and
Testors.
ASBESTOS LITIGATION: Young Suit Filed v. 80 Firms in Tex. Court
----------------------------------------------------------------
Brent Coon & Associates attorney Lou Thompson Black, Esq., on
Oct. 6, 2008, filed an asbestos lawsuit on behalf of Lillie
Young against about 80 companies in Jefferson County District
Court, Tex., The Southeast Texas Record reports.
Ms. Young is the personal representative of the heirs and estate
of Michael James Young.
The suit claims that the corporate defendants maliciously
inflicted Mr. Young with an asbestos-related disease by
manufacturing, selling and using asbestos products.
According to Ms. Young's original petition, companies such as
Viacom Inc., General Electric Company, and Zurn Industries knew
that the asbestos products they manufactured would hit the
market without inspection for defects.
The suit says the defendants have been in possession of medical
and scientific data exposing the health risks of asbestos for
decades, but conspired among themselves to suppress the
information.
Ms. Young sues for physical pain and suffering in the past and
future, mental anguish in the past and future, lost wages, loss
of earning capacity, disfigurement in the past and future,
physical impairment in the past and future, and past and future
medical expenses, including home care costs.
Ms. Young also seeks punitive and exemplary damages.
Case No. E182-493 has been assigned to Judge Gary Sanderson of
the 60th Judicial District.
ASBESTOS LITIGATION: Poninski Lawsuit v. BNSF Filed on Sept. 30
----------------------------------------------------------------
Michael and Madonna Sue Poninski, on Sept. 30, 2008, filed an
asbestos-related lawsuit against BNSF Railway Company in Madison
County Circuit Court, Ill., Asbestos.com reports.
The suit claims Mr. Poninski was diagnosed with lung cancer and
other respiratory illnesses in 2007, while Mrs. Poninski was
diagnosed with asbestosis earlier in 2008.
Mr. Poninski worked for BNSF Railway between 1971 and 1999 as a
brakeman, switchman, and conductor. It is during this time that
he believes the asbestos exposure occurred.
According to the lawsuit, Mr. Poninski often worked around toxic
fumes and hazardous substances, including asbestos, exhaust and
diesel fumes, dust, chemicals, paints, and other industrial
chemicals. Mrs. Poninski is claiming she was exposed to asbestos
in the home while she would wash her husband's clothing after he
arrived home from work.
The Poninskis believe BNSF was negligent in allowing the
exposure to occur, failed to provide a safe place to work,
failed to provide protective equipment, and failed to warn
employees about the dangers of working around asbestos and other
toxic substances.
The two-count lawsuit, the Poninskis ask that they be awarded at
least the minimum jurisdictional amount in accordance with what
the court deems as just compensation.
ASBESTOS LITIGATION: Cleanup at Pueblo County Site to Cost $3.8M
----------------------------------------------------------------
Pueblo County, Colo., Public Works Director Greg Severance, on
Oct. 8, 2008, said that it could cost US$3.8 million to dispose
of asbestos-laden material at the former Pueblo Cold Storage
site, The Pueblo Chieftain reports.
Mr. Severance said that an initially mentioned US$7 million
cleanup cost is inflated.
During a forum between the two candidates of Pueblo County
commissioner District 2 seat on Oct. 8, 2008, Republican
challenger Debbie Rose claimed that the cost of cleaning up the
former Pueblo Cold Storage site has ballooned to nearly US$7
million.
Ms. Rose's opponent, John Cordova, responded by saying that he
believed the county was being charged double for the work and
that the county will be meeting with the contractor in charge of
the project to make sure that the county is billed fairly. Mr.
Cordova also said that the contractor doing the work was double-
billing the county.
County Attorney Dan Kogovsek, Esq., said he negotiated a deal
that the company would charge the county US$1.45 for each two
cubic inches of contaminated soil removed from the site, located
at the corner of Sixth and Elizabeth streets.
When the county got the bill, Mr. Kogovsek said the company was
charging US$1.45 for every cubic inch of soil, boosting the cost
of the clean-up by US$2.8 million.
Contractor ElRoy Klemetsen of Denver-based Qualiclean said he
could not comment much on the issue but argued that his company
is not double-billing the county. But even if the double-billing
issue is resolved, the cost for cleaning the property is US$2.8
million more than originally anticipated.
Mr. Kogovsek said the county bought the property from owner Omar
Maaliki for US$750,000. Mr. Kogovsek said Mr. Maaliki
anticipated paying an additional US$250,000, putting the total
cleanup costs at US$1 million.
While the county seeks reimbursement for the cost of the
project, the contractors, assuming the double-billing issue is
resolved, still will need to be paid for their work. Mr.
Severance said the county plans to borrow from its reserves to
do so.
If the double-billing issue is not resolved, the county will sue
the contractor and pay another company to finish the job, Mr.
Kogovsek said.
Mr. Kogovsek said the reason cleanup cost are more than three
times what was anticipated is largely the level of asbestos
contamination in the soil.
The county is working with the Colorado Department of Public
Health and Environment on how to deal with the soil.
ASBESTOS LITIGATION: RPM Units Facing 11,399 Actions at Aug. 31
----------------------------------------------------------------
RPM International Inc.'s subsidiaries had a total of 11,399
active asbestos cases as of Aug. 31, 2008, compared with a total
of 10,957 cases as of Aug. 31, 2007, according to the Company's
quarterly report filed with the Securities and Exchange
Commission on Oct. 120, 2008.
The Company's subsidiaries faced 11,202 active asbestos cases as
of May 31, 2008, compared with 10,824 cases as of May 31, 2007.
(Class Action Reporter, Aug. 8, 2008)
Certain of the Company's wholly owned subsidiaries, principally
Bondex International, Inc., face asbestos-related bodily injury
lawsuits filed in various state courts with most of the current
claims pending in six states: Ohio, Texas, Florida, Mississippi,
Maryland and Illinois.
These cases seek unspecified damages for asbestos-related
diseases based on alleged exposures to asbestos-containing
products previously manufactured by the subsidiaries or others.
For the quarter ended Aug. 31, 2008, the subsidiaries secured
dismissals and settlements of 201 cases and made total payments
of US$16 million, which included defense-related payments of
US$6.7 million.
For the comparable period ended Aug. 31, 2007, dismissals and
settlements covered 365 cases and total payments were US$22.8
million, which included defense-related payments of US$8.8
million.
During the prior fiscal year, the subsidiaries incurred higher
year-over-year, defense-related payments as a result of
implementing various changes to the Company's management and
defense of asbestos claims, including a transition to a new
claims intake and database service provider.
To facilitate that transition and other related changes, the
Company incurred duplicate defense-related payments of about
US$3 million during last year's first fiscal quarter. The
transition was completed during the quarter ended Feb. 29, 2008.
The Company's total asbestos liabilities (current and long-term)
were US$543,709,000 for the quarter ended Aug. 31, 2008,
compared with US$559,745,000 for the year ended May 31, 2008 and
US$354,268,000 for the year ended May 31, 2007.
Based in Medina, Ohio, RPM International Inc. has units that
produce specialty coatings and sealants serving both industrial
and consumer markets. The Company's industrial products include
roofing systems, sealants, corrosion control coatings, flooring
coatings and specialty chemicals. Industrial brands include
Stonhard, Tremco, illbruck, Carboline, Day-Glo, Euco and Dryvit.
Consumer brands include Zinsser, Rust-Oleum, DAP, Varathane and
Testors.
ASBESTOS LITIGATION: RPM Units Still Involved in Insurance Cases
----------------------------------------------------------------
Subsidiaries of RPM International Inc. continue to be involved
in asbestos-related insurance actions.
During fiscal 2004, certain of the Company's third-party
insurers claimed exhaustion of coverage. Certain of the
Company's subsidiaries have filed a complaint for declaratory
judgment, breach of contract and bad faith against these third-
party insurers, challenging their assertion that their policies
covering asbestos-related claims have been exhausted.
The coverage litigation involves insurance coverage for claims
arising out of alleged exposure to asbestos containing products
manufactured by the previous owner of the Bondex tradename
before March 1, 1966.
On March 1, 1966, Republic Powdered Metals Inc. (as it was known
then), purchased the assets and assumed the liabilities of the
previous owner of the Bondex tradename. That previous owner
subsequently dissolved and was never a subsidiary of Republic
Powdered Metals, Bondex, RPM, Inc. or the Company.
Because of the earlier assumption of liabilities, however,
Bondex has historically responded, and must continue to respond,
to lawsuits alleging exposure to these asbestos-containing
products.
The Company discovered that the defendant insurance companies in
the coverage litigation had wrongfully used cases alleging
exposure to these pre-1966 products to erode their aggregate
limits. This conduct, apparently known by the insurance industry
based on discovery conducted to date, was in breach of the
insurers' policy language.
Two of the defendant insurers have filed counterclaims seeking
to recoup certain monies should the plaintiffs prevail on their
claims.
The parties have substantially completed all fact and expert
discovery relating to the liability phase of the case. The
parties have filed dispositive motions (including motions for
summary judgment) and related briefs.
While the Company had anticipated a ruling on these motions
before the end of fiscal 2008, the court has not yet rendered
its decision. It remains difficult to predict when the motions
will be ruled upon or when a trial date will be scheduled.
During the second fiscal quarter ended Nov. 30, 2006, Bondex
reached a settlement of US$15 million, the terms of which are
confidential by agreement of the parties, with one of the
defendant insurers. The settling defendant has been dismissed
from the case.
The subsidiaries are aggressively pursuing their claims against
the remaining insurers based on the terms of their respective
policies.
Based in Medina, Ohio, RPM International Inc. has units that
produce specialty coatings and sealants serving both industrial
and consumer markets. The Company's industrial products include
roofing systems, sealants, corrosion control coatings, flooring
coatings and specialty chemicals. Industrial brands include
Stonhard, Tremco, illbruck, Carboline, Day-Glo, Euco and Dryvit.
Consumer brands include Zinsser, Rust-Oleum, DAP, Varathane and
Testors.
ASBESTOS LITIGATION: Schmidt Signs ASARCO Confidentiality Deal
----------------------------------------------------------------
Under the order establishing plan confirmation protocol, and
Rules 9014, 7026, 7033, 7034 and 7036 of the Federal Rules of
Bankruptcy Procedure, Fireman's Fund Insurance Company, and
possibly other related insurance companies, filed notices of
requests for ASARCO LLC and Asarco Incorporated to (i) respond
to 25 requests for admissions, and (ii) produce 13 requested
documents for inspection and copying by Oct. 10, 2008.
Among the requests for admissions are:
-- Admit that neither the Debtors nor Parent obtained
FFIC's consent to the assignment of all of the Debtors'
rights, title and interest in certain asbestos
insurance policies as contemplated in the plans of
reorganization submitted by the Debtors and Parent;
-- Admit that neither the Debtors nor Parent requested or
obtained FFIC's consent to the proposed Asbestos TDP in
connection with the Plans;
-- Admit that FFIC was not requested to participate in the
drafting, or consulted concerning the development, of
the Asbestos TDP in connection with the Plans;
-- Admit that under the Plans, if confirmed, the Debtors',
Reorganized Debtors', the Asbestos Trust's and the
Parent's obligation to cooperate with FFIC in the
defense of any asbestos personal injury claim and
asbestos premises liability claims would be discharged;
and
-- Admit that under the Plans, if confirmed, the Asbestos
Trust will not have any obligation to cooperate with
FFIC in the defense of any asbestos personal injury
claims and asbestos premises liability claims.
The requested documents include:
-- all documents summarizing the Asbestos Personal Injury
Claims and Asbestos Premises Liability Claims asserted
against the Debtors prior to the Petition Date;
-- all documents evidencing dispositions, by dismissal,
judgment, settlement or otherwise, of Asbestos Personal
Injury Claims and Asbestos Premises Liability Claims
asserted prepetition;
-- all documents relating to any communications between
the Debtors and Parent, and the Official Committee of
Asbestos Claimants, legal representative and any
representative of any Asbestos Personal Injury Claimant
regarding the Plans; and
-- all documents relating to the identification, selection
and role of (i) the Asbestos Trustees, (ii) the Legal
Representative, and (iii) each Asbestos TAC member.
Judge Richard S. Schmidt has signed a confidentiality agreement
and agreed protective order among ASARCO LLC, Asarco Inc., and
Americas Mining Corporation, which would protect the
confidentiality of any information, prevent irreparable harm and
preserve all applicable privileges and rights of the Parent in
relation to the documents it has produced to the Debtors.
The Confidentiality Agreement provides that information that has
been declared confidential will only be used for litigating over
the issue of whether the plans of reorganization proposed by
ASARCO LLC and Asarco Inc. should be confirmed.
A copy of the Confidentiality Agreement is available for free at
http://bankrupt.com/misc/Confidentiality_Agreement.pdf
(ASARCO Bankruptcy News, Issue No. 87; Bankruptcy Creditors'
Service, Inc. 215-945-7000 FAX 215-945-7001)
ASBESTOS LITIGATION: ASARCO Confirmation to Commence on Nov. 17
----------------------------------------------------------------
Judge Richard S. Schmidt, after having heard the arguments of
all parties-in-interest and reviewed the briefs related to the
asbestos claims, ruled that Asarco Incorporated's objections to
the asbestos claims should be abated pending outcome of the plan
confirmation process.
Plan confirmation hearings begin Nov. 17, 2008.
Confirmation, Judge Schmidt held, may result in the
establishment of a Section 524(g) trust to receive, process,
evaluate and liquidate personal injury claims post-confirmation.
If established, the trust will operate to efficiently and
effectively allow or disallow and liquidate the personal injury
tort claims assert, without the need for determination of the
issue of jurisdiction by the Court. He said no jurisprudential
reason exists for the Court to entertain the objections at this
point in the proceedings, nor to confront the difficult
jurisdictional questions present.
Before the hearing on the Asbestos Claims Objections, Asarco
Inc. objected to the notice of supplementation of the proofs of
claim filed by law firm Lipsitz & Ponterio, LLC, on behalf of
several asbestos claimants.
Luc A. Despins, Esq., at Milbank, Tweed, Hadley & McCloy, LLP,
in New York, Asarco Inc.'s counsel, related that during the July
30 and August 1 hearings on the asbestos claims, the Court
instructed Lipsitz to submit a pleading addressing its failure
to timely submit proofs of claims against Lake Asbestos of
Quebec, Ltd., and the proper documentation in support of their
claims.
Instead, Lipsitz filed a one paragraph "notice" that
perfunctorily informs the Court that the Supplement is being
filed "per Order of the Court given during the Hearings on July
30 and Aug. 1, 2008." The Supplement, Mr. Despins argued, does
not include any explanation or otherwise state why the Claimants
failed to timely file their proofs of claim or why they failed
to attach the proper documentary support.
In response, Lipsitz explained that the Notice of
Supplementation was intended to correct clerical errors made
during the filing process, which resulted in incorrect medical
records being attached to the proofs of asbestos claims. Lipsitz
pointed out that the Asbestos Claims were filed in 2006.
(ASARCO Bankruptcy News, Issue No. 87; Bankruptcy Creditors'
Service, Inc. 215-945-7000 FAX 215-945-7001)
ASBESTOS LITIGATION: ASARCO Claimants Seek to Retain Charter Oak
----------------------------------------------------------------
The Official Committee of Asbestos Claimants in the ASARCO LLC
bankruptcy case and Robert C. Pate, Future Claims
Representative, jointly seek the Court's authority to retain
Charter Oak Financial Consultants, LLC, as their financial
advisors.
The Asbestos Committee and the FCR have selected Charter Oak to
serve as their financial advisor because Charter Oak is
currently the financial advisor for the Official Committee of
Unsecured Creditors of the Asbestos Subsidiary Debtors and the
Asbestos Debtors FCR and is therefore already intimately
familiar with the intricacies of the Debtors' complex cases and
the issues surrounding the asbestos-related claims against the
Debtors.
James P. Sinclair, managing director at Charter Oak, assures the
Court that his firm is a "disinterested person" as the term is
defined in Section 101(14) of the Bankruptcy Code, and does not
represent any interest adverse to the Debtors or its estates.
Mr. Sinclair discloses that Charter Oak provided services to an
ad hoc committee of asbestos claimants before the Petition Date.
As of the Petition Date, US$466,163 remained outstanding from
the Debtors. ASARCO LLC has since paid the outstanding balance,
he says.
(ASARCO Bankruptcy News, Issue No. 87; Bankruptcy Creditors'
Service, Inc. 215-945-7000 FAX 215-945-7001)
ASBESTOS LITIGATION: Claimants Seek to Retain LAS as Consultant
----------------------------------------------------------------
The Official Committee of Asbestos Claimants in the ASARCO LLC
bankruptcy case and Robert C. Pate, as Future Claims
Representative of ASARCO LLC and certain other Debtors, jointly
seek the Court's authority to retain Legal Analysis Systems,
Inc., as their asbestos claims estimation consultant.
The Asbestos Committee and the FCR tell the Court that they
selected LAS to serve as their asbestos claims estimation
consultant because LAS is currently the asbestos claims
estimation consultant for the Official Committee of Unsecured
Creditors of the Asbestos Subsidiary Debtors and the Asbestos
Debtors' FCR and is therefore already intimately familiar with
the intricacies of the Debtors' complex cases and the issues
surrounding the asbestos-related claims against the Debtors.
Thus, the Asbestos Committee and the FCR contend, retaining LAS
as their asbestos claims estimation consultant allows them to
avoid the cost and delay that would be incurred if they were
required to retain and educate a new asbestos claims estimation
consultant in the Debtors' cases.
Mr. Peterson, president of LAS, assures the Court that his firm
does not represent any interest adverse to the Debtors or their
estates, and is a "disinterested person" as the term is defined
in Section 101(14) of the Bankruptcy Code.
Mr. Peterson discloses that LAS has filed four interim
applications for compensation and reimbursement of expenses.
LAS, he says, will continue its role as asbestos claims
estimation consultant to the Subsidiary Committee and the
Asbestos Debtors' FCR.
(ASARCO Bankruptcy News, Issue No. 87; Bankruptcy Creditors'
Service, Inc. 215-945-7000 FAX 215-945-7001)
ASBESTOS LITIGATION: Claimants Move to Keep Anderson as Advisor
----------------------------------------------------------------
The Official Committee of Asbestos Claimants in the ASARCO LLC
bankruptcy case seeks the U.S. Bankruptcy Court's authority to
retain David P. Anderson as its insurance advisor.
Mr. Anderson is a senior advisor with the consulting firm The
Claro Group. Mr. Anderson is also retained, and will continue to
serve, as insurance advisor by the Official Committee of
Unsecured Creditors for the Asbestos Subsidiary Debtors.
Mr. Anderson has agreed to represent the Asbestos Committee at a
fee commensurate with his normal hourly rate, which is US$420.
Mr. Anderson assures the Court that his firm does not represent
any interest adverse to the Debtors or its estates, and is a
"disinterested person" as the term is defined in Section 101(14)
of the Bankruptcy Code.
(ASARCO Bankruptcy News, Issue No. 87; Bankruptcy Creditors'
Service, Inc. 215-945-7000 FAX 215-945-7001)
ASBESTOS LITIGATION: Gov't. Objects to Asarco's Estimation Plea
----------------------------------------------------------------
The United States Government, on behalf of the U.S.
Environmental Protection Agency, the U.S. Department of the
Interior, and the U.S. Department of Agriculture, objected to
the request of Asarco Incorporated for the estimation of a cap
for purposes of distributions on environmental claims under the
competing Plans of Reorganization.
Ronald J. Tenpas, Esq., Assistant Attorney General at the
Environmental & Natural Resources Division, argued that
estimation of a cap of the Government's environmental claims is
improper and unnecessary under the Debtors' Plan because
virtually all of the Government's environmental claims are
settled under that Plan.
The settlements, Mr. Tenpas recalled, provide for allowed claims
or payments in set amounts, which already establish a cap on
distributions. If Parent does not like the caps that are
proposed in the settlement, its remedy is objection to the
settlement, not estimation, he told Judge Richard S. Schmidt.
Mr. Tenpas also complained that it would be fundamentally unfair
and contrary to due process and public policy for the Government
to be now forced to go through a rushed "capping" litigation on
its highly complex environmental claims for which it has just
entered into settlements. The Government, he pointed out, have
gone through a nearly two year process of estimation, court-
approved mediation, and proposed settlement of environmental
claims with Debtors.
The Official Committee of Asbestos Claimants also complained
that an estimation of aggregate asbestos liability would be
inappropriate and pointless. The Parent, the Asbestos Committee
pointed out, has made no showing of undue delay. Rather, the
Debtors have negotiated with the asbestos constituencies, as
well as other major constituencies, toward a consensual plan
that incorporates treatment of asbestos claims under Section
524(g) of the Bankruptcy Code.
The Debtors told Judge Schmidt that an estimation could unravel
the global settlement of the Debtors' asbestos and environmental
liabilities, which was reached among the Debtors and their
largest creditors and is a result of a Court-ordered mediation
and the year-long negotiation process that followed the
mediation. Estimation, the Debtors asserted, likely would result
in unnecessary delay of plan confirmation and could threaten
ASARCO LLC's ability to close on the sale of substantially all
of its operating assets.
According to the Courtroom Minutes of the September 23 Hearing,
Judge Schmidt has ruled that "estimation issues can await plan
confirmation."
(ASARCO Bankruptcy News, Issue No. 87; Bankruptcy Creditors'
Service, Inc. 215-945-7000 FAX 215-945-7001)
ASBESTOS LITIGATION: McKinley, Everest's Late Claims Plea Denied
----------------------------------------------------------------
The U.S. Bankruptcy Court, in the ASARCO LLC bankruptcy case,
denied the request of Mt. McKinley Insurance Company and Everest
Reinsurance Company to file proofs of claim out of time.
Judge Richard S. Schmidt explained that Mt. McKinley's request
would prejudice not only the Debtors, but also creditors, like
the Official Committee of Unsecured Creditors of the Asbestos
Subsidiary Debtors, who have relied on the claims register in
negotiating a settlement agreement with the Debtors.
Judge Schmidt also noted that Mt. McKinley provided no reason
for failing to timely file their proofs of claim other than mere
oversight.
(ASARCO Bankruptcy News, Issue No. 87; Bankruptcy Creditors'
Service, Inc. 215-945-7000 FAX 215-945-7001)
ASBESTOS LITIGATION: Nov. 23 Set As Last Day for Filing Claims
----------------------------------------------------------------
Debtors in the ASARCO LLC bankruptcy case (Lac d'Amiante du
Quebec Ltee., Lake Asbestos of Quebec, Ltd., LAQ Canada, Ltd.,
CAPCO Pipe Company, Inc., and Cement Asbestos Products Company)
supplement Schedule F of their Schedules of Assets and
Liabilities to include additional potential holders of asbestos-
related claims.
A list of the additional potential asbestos claimants is
available for free at
http://bankrupt.com/misc/List_Additional_Claimants.pdf
The claimants have until Nov. 23, 2008, to file proofs of claim.
(ASARCO Bankruptcy News, Issue No. 87; Bankruptcy Creditors'
Service, Inc. 215-945-7000 FAX 215-945-7001)
ASBESTOS LITIGATION: La. Court Grants Chiasson's Bid to Remand
----------------------------------------------------------------
The U.S. District Court, E.D. Louisiana granted Beatrice M.
Chiasson's motion to remand in an asbestos-related lawsuit filed
on behalf of her deceased husband, Donald J. Chiasson, Sr.
The case is styled Beatrice M. Chiasson, individually and on
behalf of her deceased husband, Donald J. Chiasson, Sr., et al.
v. Honeywell International Inc., et al.
U.S. District Jude Helen G. Berrigan entered judgment in Civil
Action No. 05-5221 on Aug. 29, 2008.
>From 1958 to 1994, Mr. Chiasson worked as a mechanic at Sydney's
Texaco, Inc., an automobile repair and service station in
Marrero, La. Over the course of his almost 40 years at Sydney's,
he regularly worked on brakes and clutches that contained
asbestos.
Mrs. Chiasson alleged that Mr. Chiasson's exposure to asbestos
and asbestos-containing products during his employment at
Sydney's caused him to contract malignant mesothelioma, of which
he died on July 29, 2004.
Mrs. Chiasson claimed that Defendants manufactured, distributed,
warranted, and installed the asbestos-based products to which
Mr. Chiasson was exposed.
On May 17, 2004, Mrs. Chiasson filed suit individually and on
behalf of her deceased husband in the 24th Judicial District of
Jefferson Parish, State of Louisiana. The several Defendants to
that civil action filed a Notice of Removal to the District
Court on Nov. 1, 2005. Neither party contested that the minimum
amount in controversy of US$75,000 has been met.
Mrs. Chiasson timely filed a motion to remand and to add
defendants on Nov. 18, 2005. Pending this Court's ruling on that
motion, the Judicial Panel on Multidistrict Litigation ordered
that the matter be transferred to the U.S. District Court for
the Eastern District of Pennsylvania.
Mrs. Chiasson averred that discovery conducted under the
supervision of that court revealed that Joseph Bourgeois, Elaine
Bourgeois (owners and operators of the incorporated "Sydney's"
after 1987), and Travelers Insurance should be added as
Defendants.
On April 8, 2008, the MDL Panel, acting on the recommendation of
the transferee court, remanded the case to the District Court.
Mrs. Chiasson subsequently refiled a motion to remand these
proceedings to state court. In opposition, Defendants argued
that Sydney's is a fraudulently joined party whose citizenship
cannot be considered for diversity purposes.
Defendants argued that Mrs. Chiasson sought to fraudulently join
other non-diverse parties solely to defeat diversity.
The District Court found that Mrs. Chiasson had not improperly
joined Sydney's Texaco, Inc., as a non-diverse defendant for the
purpose of defeating diversity, and that Mrs. Chiasson's motion
to remand was granted.
Julie A. Ardoin, Esq., of Ardoin Law Firm in Kenner, La.,
Stephen B. Murray, Jr., Esq., of Murray Law Firm in New Orleans,
represented Beatrice M. Chiasson, individually and on behalf of
her deceased husband, Donald J. Chiasson, Sr., et al.
ASBESTOS LITIGATION: Fenech's Family Awarded EUR103T in Payout
----------------------------------------------------------------
The family of former dockyard worker, Joseph Fenech, on Oct. 13,
2008, was awarded EUR103,000 in asbestos-related compensation by
the Civil Court, The Malta Independent Online reports.
Mr. Fenech took early retirement and died from asbestos
poisoning later.
The case was filed in 1997 by the Fenech family. Mr Fenech, who
worked as a boilermaker, contracted malignant mesothelioma after
working with asbestos at the yard and had to leave his job in
January 1995, dying two years later at the age of 55.
In its initial response, the dockyard had argued that the case
was time-barred, that it was in no way responsible for Mr.
Fenech's ill health and that since he had asked to be boarded
out and received the relative payment, it could not be held
responsible for what happened later.
In December 2006, the court had thrown out all the dockyard's
arguments and accepted all the demands made by the Fenech family
save for the last two regarding compensation, hoping the two
sides could come to some mutual agreement.
Mr. Justice Philip Sciberras decided that the Fenechs be given
EUR103,000 as compensation for lost earnings, based on the
global earning of four of Mr. Fenech's colleagues, that also
included allowances and overtime.
Dr. Juliette Galea appeared for the Fenech family.
ASBESTOS LITIGATION: Del. Court Favors Defendants in Marmon Suit
----------------------------------------------------------------
The Superior Court of Delaware, New Castle County, granted
Mortell Company and The Dow Chemical Company's (Defendants)
motion to dismiss an asbestos-related indemnification complaint
filed by The Marmon Group, LLC, TRH Holding Corp., and Fenestra
Corp. (Plaintiffs).
The case is styled Jerry Lagrone and Rose Lagrone, his wife,
Plaintiffs v. American Mortell Corp., et al. Defendant. The
Marmon Group, LLC, et al., Plaintiffs v. Mortell Company, et
al., Defendants.
Judge Joseph R. Slights III entered judgments in C.A. Nos. 04C-
10-116-ASB and 07C-12-019-JRS on Sept. 4, 2008.
Jerry Lagrone and his wife, Rose Lagrone, filed suit in the
Superior Court alleging that Mr. Lagrone was exposed to asbestos
while working as a technician for a company that fabricated
asbestos-containing fire doors. He alleged that Marmon/Fenestra
manufactured the doors and that Mortell manufactured an
asbestos-containing sound deadening core that was placed inside
the shell of the doors.
Mr. Lagrone named dozens of other defendants in connection with
various other exposures to asbestos as identified in his
complaint. All defendants except Marmon settled with the
Lagrones before trial. Mortell settled a month prior to trial in
June 2007. The trial commenced on July 23, 2007 with Marmon as
the sole defendant.
During trial, Mr. Lagrone alleged that Marmon was responsible
for Mortell's defective product (the asbestos-containing sound
deadener) and also negligent in its own right for knowingly
including Mortell's asbestos-containing product and for
incorporating other "asbestos millboard" within its fire doors.
Marmon denied all allegations of negligence.
The Court was advised on July 26, 2007 that the parties had
settled. The Court entered an order dismissing the Lagrone
action on Oct. 17, 2007. The Court vacated that order on Oct.
31, 2007, at Marmon's request, so that Plaintiffs could proceed
with this indemnification claim.
Plaintiffs filed a separate action for indemnification rather
than simply prosecuting their cross claims in the reopened
Lagrone case.
The indemnification complaint alleges that TRH is the "successor
by merger" of Fenestra. Marmon was sued in Lagrone in its own
right and as the successor of Fenestra, the manufacturer of the
fire doors at issue in Lagrone. According to Plaintiffs, Marmon
is not, in fact, the successor of Fenestra and maintained its
separate status throughout the Lagrone litigation.
Plaintiffs sought recovery for both "contractual
indemnification" and "common law indemnification."
The Superior Court granted the Defendants' motion.
Timothy Jay Houseal, Esq., of Young Conaway Stargatt & Taylor in
Wilmington, Del.; and Stephen S. McCloskey, Esq., of Semmes
Bowen & Semmes in Baltimore, represented Marmon Group, LLC and
TRH Holding Corporation.
Donald E. Reid, Esq., and Jason A. Cincilla, Esq., of Morris
Nichols Arsht & Tunnell, LLP in Wilmington, Del., represented
Mortell Company and The Dow Chemical Company.
ASBESTOS LITIGATION: Court Issues Split Rulings in Winrow Action
----------------------------------------------------------------
The U.S. District Court, Northern District of Oklahoma, issued
split rulings in a lawsuit involving asbestos filed by inmate
Billy Joe Winrow against Walter Dinwiddie, Warden of the Dick
Conner Correctional Center (DCCC), and Dick Bartley.
The case is styled Billy Joe Winrow, Plaintiff v. Walter
Dinwiddie, Warden, DCCC; Dick Bartley, Defendants.
District Judge Terence Kern entered judgment in Case No. 07-CV-
323-TCK-PJC on Sept. 4, 2008.
The events that gave rise to Mr. Winrow's claims occurred at
DCCC, located in Hominy, Okla. He is no longer incarcerated at
that facility. In his amended complaint, he identified two
claims.
In support of his first claim, Mr. Winrow alleged that on Aug.
31, 2006, he was placed in the segregated housing unit (SHU) at
DCCC, where he remained for about 40 days, allegedly because of
his inquiries concerning the handling of his legal mail.
Mr. Winrow alleged that while in the SHU, he was exposed to
asbestos and that about three months after his release from the
SHU, that portion of the facility was closed due to asbestos
contamination.
Mr. Winrow claimed that he has been "physically injured by Mr.
Dinwiddie, when he allowed his staff to place this petitioner in
a building that contained (Asbestos) in retaliation of this
petitioner requesting help from the Defendant about the
mishandling of his legal mail...."
In support of his second claim, Mr. Winrow alleged that Mr.
Bartley mishandled incoming mail from the Pottawatomie District
Court Clerk, and that as a result, he was denied "the pleadings
he needed to forward his appeal to the Oklahoma Court of
Criminal Appeals, in Oklahoma City."
On Oct. 16, 2007, the Court dismissed Mr. Winrow's claims of
denial of access to courts and improper mail handling for
failure to state a claim upon which relief may be granted and
directed service of the complaint as to Mr. Winrow's remaining
claim concerning his exposure to asbestos while held in the SHU
at DCCC.
In response to that claim, Defendants filed a motion to
dismiss/motion for summary judgment asserting that (1) Mr.
Winrow failed to exhaust his administrative remedies, (2) Mr.
Winrow failed to allege personal participation of Defendants,
(3) Defendants are protected by immunity, and (4) Mr. Winrow had
not shown that Defendants violated his Eighth Amendment rights.
Mr. Winrow filed a response to Defendants' dispositive motion, a
"motion for medical assistance," and a supporting affidavit.
The Court granted defendants' motion for summary judgment and
the defendants' motion to dismiss was declared moot. The Court
also denied Mr. Winrow's "motion for medical assistance by court
order."
As for the asbestos claim, the Court dismissed the claim without
prejudice for failure to exhaust administrative remedies.
Billy Joe Winrow of Cushing, Okla., represented himself.
Ronald A. Anderson, Esq., Department of Corrections, Oklahoma
City, Okla., represented Defendants.
ASBESTOS LITIGATION: Appeals Court Denies Grand Trunk's Request
----------------------------------------------------------------
The Court of Appeals of Michigan denied Grand Trunk Western
Railroad, Inc.'s request for a writ of superintending control in
asbestos-related litigation. The matter was remanded to the
lower court for trial to proceed.
The case is styled Grand Trunk Western Railroad, Inc., Plaintiff
v. 37th Circuit Court Judge, Defendant.
Judges Christopher M. Murray, William C. Whitbeck, and Michael
J. Talbot entered judgment in the case on Sept. 11, 2008. Judge
Murray filed a dissenting opinion.
This matter was before the Appeals Court as a complaint for
superintending control. It arose from the Calhoun Circuit
Court's denial of the Railroad's motion for reconsideration over
the trial court's decision to hold simultaneous trials in two
cases brought by former employees of the Railroad alleging
injuries related to asbestos exposure.
Specifically, the trial court scheduled for trial Kemperman v.
Canadian Nat'l R, d/b/a Grand Trunk W R, Inc. (Lower Court No.
04-4370-NO), brought under the Federal Employers' Liability Act.
The estate representative, alleged that Gerald Kemperman,
employed by the Railroad as a brakeman from 1956 through 1988,
was negligently exposed to asbestos and other toxic substances,
which resulted in damage to his respiratory and nervous systems,
lung cancer and his ultimate demise.
Trial in the Kemperman matter was scheduled to proceed
simultaneously with O'Connell v. Canadian Nat'l R, d/b/a Grand
Trunk W R, Inc. (Lower Court No. 04-4372-NO), which involved the
alleged exposure of Albert O'Connell to asbestos through his
employment with the Railroad as a mechanic from 1973 to 1997.
Mr. O'Connell was diagnosed with lung cancer and died in 2004.
The trial court determined that it would try the two cases
simultaneously with two separate juries. The Railroad argued
that trying the cases simultaneously violated Supreme Court AO
2006-6, prohibiting the "bundling" of asbestos-related cases.
The Railroad asserted that trying the cases together constituted
a consolidation and that the dissimilar facts presented a danger
of undue prejudice and negatively impacted the Railroad's
constitutional right to due process and a fair trial.
On Oct. 2, 2006, the trial court reiterated its decision to try
the cases together using separate juries.
As an alternative, the trial court offered to conduct a summary
jury trial, which would "allow one of the cases to go to the
fullest extent, tried before a jury, and then have the remaining
untried railroad asbestos cases go to a summary jury trial
pursuant to that administrative order and have the decision of
the jury be binding."
The trial court denied the Railroad's motion for
reconsideration, but failed to enter a written order
memorializing its ruling. The Railroad initially filed a
complaint for writ of superintending control in this Court and
for a stay of proceedings, which was denied.
The Railroad filed an application for leave to appeal to the
Supreme Court, which was granted. The Supreme Court has remanded
the matter back to this Court to interpret its intent. On
remand, the Appeals Court is now charged with interpreting AO
2006-6 and must specifically ascertain the meaning of the term
"bundling" and its procedural application in the context of
simultaneous trials in asbestos litigation.
The Appeals Court denied the Railroad's request.
ASBESTOS LITIGATION: ACMAT Corp.'s Motion Denied in Madden Case
----------------------------------------------------------------
The Superior Court of Connecticut denied ACMAT Corporation's
motion for summary judgment in an asbestos-related lawsuit filed
by Michael Madden.
The case is styled Michael Madden et al. v. ACMAT Corporation et
al.
Judge David W. Skolnick entered judgment in Case No. BA065005733
on Aug. 21, 2008.
The Superior Court was presented with a motion for summary
judgment in this case, a suit over physical illness suffered by
Mr. Madden as a result of exposure to asbestos.
ACMAT moved for summary judgment on the grounds that the
applicable statute of limitations has expired thereby rendering
Mr. Madden's claims against unenforceable.
Mr. Madden and ACMAT, however, were in dispute over which
statute of limitations properly applied to this matter.
Mr. Madden argued that the correct statute of limitations was
provided by Connecticut General Statutes s 52-577c, whereas
ACMAT contended the proper statute was s 52-584.
ASBESTOS LITIGATION: Pantalone's Suit v. Buffalo Pumps Remanded
----------------------------------------------------------------
The U.S. District Court, District of Connecticut, granted
Margaret Pantalone's motion to remand, in an asbestos lawsuit,
filed on behalf of her late husband Thomas Pantalone, against
Buffalo Pumps, Inc.
The case is styled Margaret Pantalone, et al., Plaintiffs v.
Aurora Pump Co., et al., Defendants.
District Judge Janet Bond Aterton entered judgment in Civil No.
3:07cv1336 (JBA) on Sept. 18, 2008.
Mrs. Pantalone's complaint alleged that Mr. Pantalone "was
exposed to various asbestos containing products while in the
U.S. Navy, at various jobsites, at various times during the
years 1951-1956 and while working in Connecticut as a
Maintenance Mechanic at various jobsites, at various times
during the years 1956-1987."
Mrs. Pantalone further alleged that Mr. Pantalone's exposure to
asbestos during this time was the result of his contact with
products manufactured or supplied by each of the Defendants
(including Buffalo Pumps), thus giving rise to their liability
under Connecticut law.
After the case had been pending for more than four years, Mrs.
Pantalone disclosed the report of its expert, Captain R. Bruce
Woodruff, on Aug. 3, 2007. In this report, Captain Woodruff
outlined the details of Mr. Pantalone's Navy service, including
that he worked on the U.S.S. Fulton, on the U.S.S. Dortch, and
at the New London submarine base.
On Sept. 4, 2007, Buffalo Pumps removed the case. One week
later, Mrs. Pantalone moved to remand the case to state court,
arguing that Buffalo Pumps had not satisfied the requirements
for removal and that the removal was untimely.
Mrs. Pantalone argued that removal was untimely because Buffalo
Pumps filed its notice of removal more than 30 days after the
case's removability became apparent.
The Court concluded that the grounds for federal-officer removal
have been met. However, Buffalo Pumps had failed to carry its
additional burden of establishing that it could not have
intelligently ascertained the case's removability before Aug. 3,
2007.
Accordingly, Mrs. Pantalone's Motion to Remand was granted and
the Clerk was directed to remand this case to the Judicial
District of Fairfield at Bridgeport, Conn.
Mrs. Pantalone's Motion to Vacate Conditional Transfer Order to
the MDL [Doc. # 39] was denied as moot.
ASBESTOS LITIGATION: Brumby Apologizes to Victims in Parliament
----------------------------------------------------------------
John Brumby, the Premier of Victoria, Australia, apologized to
asbestos victims during a regional sitting in the Parliament of
Victoria, The Age reports.
Mr. Brumby conveyed his regret for the "intolerable suffering"
experienced by the families and workers exposed to asbestos at
the state's power stations.
Mr. Brumby apologized at the parliament's lower house at
Churchill in the electricity production heartland of Gippsland,
in eastern Victoria.
Mr. Brumby said, "On behalf of the Victorian government and the
community I want to say sorry and to express our regret for the
pain and the suffering felt by some former power industry
workers and their families when caused by asbestos exposure at
the former SECV (State Electricity Commission of Victoria)."
Members of the Gippsland Asbestos Related Diseases support group
were in the public gallery to hear the apology and Mr. Brumby
said their "heartbreaking stories" underscored the human cost of
asbestos.
Mr. Brumby said the parliament would use Oct. 15, 2008's
regional session to pass the Asbestos Diseases Compensation
bill, saying sufferers deserve damages and an apology.
ASBESTOS LITIGATION: Compensation Awarded to Dickerson's Family
----------------------------------------------------------------
The Barking and Dagenham Post reports that Cape Asbestos has
awarded an undisclosed amount of asbestos compensation to the
family of George Dickerson, who has died of lung cancer, Safety
Med!a reports.
Mr. Dickerson played with asbestos dust as a child when it would
blow out of the factory gates into a nearby school playground.
Over 50 years later, he contracted mesothelioma and died shortly
after diagnosis, the news provider reveals.
Mr. Dickerson's widow, Shirley, claims he immediately identified
the cause of his illness once he discovered he had contracted it
and knew he had been exposed as a child.
Regional secretary for Unison, which secured the compensation
for Mr. Dickerson's family, says the company has now been held
to account for its health and safety breaches.
ASBESTOS LITIGATION: Maytag, Whirpool Seek Dismissal of Korando
----------------------------------------------------------------
Maytag Corporation and Whirlpool Corporation are urging Madison
County Circuit Judge Daniel Stack to dismiss an asbestos suit
filed on Aug. 15, 2008 by the estate of Wilfred Korando, a
resident of Illinois, who died from mesothelioma, The Madison
St. Clair Record reports.
In addition to Maytag and Whirlpool, The Boeing Company,
Chrysler LLC, C.P. Hall Company, Ford Motor Company, General
Electric Company, General Motors Corporation, The Goodyear Tire
& Rubber Company, Hawker Beechcraft Corporation, Ingersoll-Rand
Company Limited, International Paper Company, John Crane Inc.,
McDonnell Douglas Corporation, MetLife, Inc., Royal Philips
Electronics N.V., Pratt & Whitney, and Rolls-Royce are named as
defendants.
Represented by Daniel Donahue, Esq., and Jacob Sawyer, Esq., of
Foley & Mansfield in St. Louis, Maytag and Whirlpool argue that
Mr. Korando's estate fails to identify the products exposed to,
the dates of the exposure, the location of the exposure, and the
time frame the products were supplied.
The two companies argue the complaint lacks sufficient facts so
it may make a defense.
Mr. Korando's estate seeks damages in excess of US$250,000.
Mr. Korando was employed from 1954 through 2004 as a mechanic,
washer and dryer maintenance man, and commercial window
installer at various locations throughout Illinois.
During the course of his employment and during home and
automotive repairs, Mr. Korando's estate claims he was exposed
to and inhaled, ingested or otherwise absorbed asbestos fibers
emanating from certain products he was working with and around.
Mr. Korando's estate states he died from his illness on Jan. 21,
2007, after a seven-month battle.
Maytag and Whirlpool also argue the case should be dismissed
because the complaint fails to plead sufficient facts in order
to apprise them of the frequency and proximity with which Mr.
Korando is alleged to have been exposed to asbestos from their
respective products.
They also argue the suit is barred because the statute of
limitations has expired and is also barred because it is barred
by the applicable workers compensations statutes.
Maytag and Whirlpool further argue the stature of repose bars
the strict liability count of the complaint since there are no
facts that would establish that the action was filed within 12
years from the date of first sale, or within ten years from the
date the product came into Mr. Korando's possession.
Maytag and Whirlpool further argue that the case should be
transferred to another venue since the complaint has failed to
show any defendant is a resident of Madison County who is joined
in good faith and with probable cause for the purpose of
obtaining a judgment against them and not solely for the purpose
of fixing venue in Madison County.
Maytag and Whirlpool argue the case should be dismissed based on
the doctrine of forum non conveniens.
Judge Stack has yet to set a hearing on the motions.
John Barnerd, Esq., and Amy Garrett, Esq., of SimmonsCooper in
East Alton, Ill., represent Mr. Korando's estate.
ASBESTOS LITIGATION: Hardie Claims Enough Funds to Pay Liability
----------------------------------------------------------------
The New South Wales Supreme Court has been told that James
Hardie Industries N.V.'s management did not have a problem with
the term "fully funded" in a statement announcing the Company's
plan to meet its asbestos compensation liabilities, The Age
reports.
Greg Baxter, Hardie's senior vice president of corporate affairs
at the time, told the NSW Supreme Court on Oct. 13, 2008 that he
was responsible for drafting the release but said it was senior
management who were ultimately responsible for its content. He
said he was not responsible for the term "fully funded" in the
release, and did not know where it originated.
The Australian Securities and Investments Commission (ASIC) is
suing 10 of Hardie's former directors and executives, alleging
they made misleading public statements about the Company's
ability to fully compensate asbestos victims in 2001.
At the center of the allegations is a Company release to ASIC
and media on Feb. 16, 2001, announcing the establishment of a
separate trust to cover Hardie's asbestos-related claims.
The document said the trust was fully funded. However, two years
later, it was found to be underfunded by over AUD1 billion.
Mr. Baxter was asked by Bret Walker, SC, barrister for former
Hardie general counsel Peter Shafron, if he approved the
release, to which he replied, "It wasn't my responsibility to
approve it."
Mr. Baxter, now the director of corporate affairs at News Ltd,
said he was told by a number of people, including Mr. Shafron
and former James Hardie chief executive Peter Macdonald, that
the trust would have a surplus of funds after it paid out all
compensation claims.
However, when pressed by Mr. Walker, Mr. Baxter was unable to
point to any documented proof of such advice. Mr. Baxter
maintained his position that senior management held more
responsibility for the release than himself.
Mr. Baxter was set to give more evidence on Oct. 14, 2008.
ASBESTOS LITIGATION: Philips Records EUR241Mil Charge for Claims
----------------------------------------------------------------
Royal Philips Electronics N.V. (Koninklijke Philips Electronics
N.V.), in the third quarter of 2008, recorded EUR241 million
charges for the final settlement of asbestos-related claims and
associated legal fees, according to a Company report, on Form 6-
K, filed with the Securities and Exchange Commission on Oct. 14,
2008.
The Company's Group Management & Services segment reported a
total negative result of EUR314 million, including the EUR241
million charges.
Earnings before interest, tax and amortization (EBITA) in the
first nine months of 2008 was EUR806 million, 33 percent lower
than in the corresponding period of 2007, mainly due to EUR241
million of charges related to the final asbestos claim
settlement, higher incidental charges at Consumer Lifestyle and
acquisition-related charges at Healthcare and Lighting, partly
offset by the gains on the sale of the Set-Top Box and Speech
Recognition activities.
Headquartered in Amsterdam, The Netherlands, Royal Philips
Electronics N.V. (Koninklijke 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: ONCONASE Being Evaluated as Cancer Medicine
----------------------------------------------------------------
ONCONASE(R) is still being evaluated as a treatment for
unresectable (inoperable) malignant mesothelioma in an
international, centrally randomized, confirmatory Phase IIIb
registration trial, according to the Company's annual report
filed with the Securities and Exchange Commission on Oct. 14,
2008.
The first Phase III trial of ONCONASE(R) in UMM was completed in
2000. The most recent confirmatory Phase IIIb registration trial
was closed to patient accrual in September 2007.
Somerset, N.J.-based Alfacell Corporation is a biopharmaceutical
company engaged in the discovery and development of a new class
of therapeutic drugs for the treatment of cancer and other
pathological conditions.
ASBESTOS LITIGATION: Travelers Reports $46M Increase to Reserves
----------------------------------------------------------------
The Travelers Companies, Inc., in the third quarter of 2008,
expects to report a US$46 million after-tax (US$70 million pre-
tax) increase to asbestos reserves, according to a Company
report, on Form 8-K, filed with the Securities and Exchange
Commission on Oct. 14, 2008.
The Company expects to report net favorable prior year reserve
development of about US$210 million after-tax (US$330 million
pre-tax) in the third quarter of 2008.
The net favorable prior year reserve development is driven by
better than expected loss experience, primarily in the
commercial multi-peril and general liability product lines.
The Company completed its annual in-depth asbestos claim review
in the third quarter of 2008.
St. Paul, Minn.-based The Travelers Companies, Inc. provides
property casualty insurance for auto, home and business.
ASBESTOS LITIGATION: Libby Claimants Reconsideration Bid Denied
----------------------------------------------------------------
Judge Judith Fitzgerald, in the W. R. Grace & Co. bankruptcy
case, has denied the Libby Claimants' requests a second time.
Several claimants injured by exposure to asbestos from the
Debtors' operations in Libby, Mont., previously asked the Court
to reconsider the scheduling order relating to the Plan
confirmation process entered Oct. 1, 2008. However, the Libby
Claimants' request was denied by the Court for failure to comply
with the Court's order establishing case management procedures
and hearing schedule and the Local Rules of Bankruptcy
Procedure.
To address, the Court's concerns, the Libby Claimants files
another request to reconsider the October 1 Order.
Adam G. Landis, Esq., at Landis Rath & Cobb LLP, in Wilmington,
Del., maintains that the Debtors' Joint Plan of Reorganization
and the accompanying Disclosure Statement were incomplete. He
contends that the Debtors' request to shorten the objection
deadline was contrary to Rule 2002(b) of the Federal Rules of
Bankruptcy Procedure and the Case Management Order.
Mr. Landis argues that the Plan and related documents do not
reflect an agreement with the Libby Claimants on how their
claims should be treated because the Libby Claimants' interests
and concerns have not been fairly addressed in the Plan. He
points out that the Plan provides for the satisfaction of other
asbestos claimants while leaving the Libby Claimants with no
assurance of a fair distribution.
In addition, Mr. Landis tells the Court that the Libby
Claimants' counsel have no time to review advance drafts of the
Plan or the Disclosure Statement and prepare appropriate
objections to approval of the Disclosure Statement if the
deadline for objections is Oct. 17, 2008. He notes that the
Disclosure Statement consists of 146 single-space pages, while
the Plan consists of 104 single-spaced pages, accompanied by an
exhibit book consisting of hundreds of pages more.
Furthermore, Mr. Landis argues that numerous exhibits are
missing, including an exhibit listing parties that will be
protected by the proposed channeling injunction.
In a separate filing, the Libby claimants ask the Court to
expedite the consideration of their request in light of the
impending Oct. 17, 2008 objection deadline for the Disclosure
Statement approval.
The Libby Claimants also ask for relief from the Court's Case
Management Order.
(W.R. Grace Bankruptcy News, Issue No. 167; Bankruptcy
Creditors' Service, Inc. 215-945-7000 FAX 215-945-7001)
ASBESTOS LITIGATION: Bernick Awaits Resolution to Pacific Claim
----------------------------------------------------------------
David M. Bernick, Esq., at Kirkland & Ellis LLP, in Chicago,
certifies that, as of Oct. 13, 2008, he has received no answer,
objection or other responsive pleading to W. R. Grace & Co. the
Debtors' request to approve the settlement of an asbestos
property damage claim filed by Pacific Freeholds.
(W.R. Grace Bankruptcy News, Issue No. 167; Bankruptcy
Creditors' Service, Inc. 215-945-7000 FAX 215-945-7001)
ASBESTOS LITIGATION: Bernick Awaits Resolution to Bayshore Claim
----------------------------------------------------------------
David M. Bernick, Esq., at Kirkland & Ellis LLP, in Chicago,
tells the U.S. Bankruptcy Court that as of Oct. 13, 2008, he has
received no answer, objection or other responsive pleading to W.
R. Grace & Co.'s request to approve the settlement of an
asbestos property damage claim filed by Bayshore Community
Hospital.
(W.R. Grace Bankruptcy News, Issue No. 167; Bankruptcy
Creditors' Service, Inc. 215-945-7000 FAX 215-945-7001)
ASBESTOS LITIGATION: Jones Awaits Resolution on CSU Settlement
----------------------------------------------------------------
Laura Davis Jones, Esq., at Pachulski Stang Ziehl & Jones LLP,
in Wilmington, Del., relates that as of Oct. 13, 2008, she has
received no answer, objection or other responsive pleading to W.
R. Grace & Co.'s request to authorize the settlements of several
asbestos property damage claims filed by the California State
University.
(W.R. Grace Bankruptcy News, Issue No. 167; Bankruptcy
Creditors' Service, Inc. 215-945-7000 FAX 215-945-7001)
ASBESTOS LITIGATION: Grace Prevails in General Services Lawsuit
----------------------------------------------------------------
Judge Judith Fitzgerald sustained W. R. Grace & Co.'s objection
to the property damage claims filed by the California Department
of General Services, and disallowed the Claims. The Court also
granted the Debtors' request for summary judgment.
The Debtors argued that the Departments' claims are barred under
California law and by the statute of limitations. The Debtors
contend that the Claims are identical to those raised with
respect to a request for leave to file a complaint filed by 29
states, including the States of California, in the U.S. Supreme
Court in 1989. The Supreme Court denied the request for leave to
file the Complaint, titled In re Alabama v. W.R. Grace & Co.,
495 U.S. 928 (1990), in 1990. California also filed claims in
the Johns-Manville bankruptcy.
The Debtors asserted that the Department knew of its claims at
least a decade before the Petition Date and therefore the claims
are barred by the statute of limitations. The Department argued
that the Claims filed in the Debtors' bankruptcy cases concern
different buildings than those involved in the Alabama
complaint, thus the Claims filed against the Debtors are not
barred by the statute of limitations.
Judge Fitzgerald, in a 15-page opinion, disagreed with the
Department. Judge Fitzgerald found that the Department's claims
are barred by the three-year statute of limitations of the
States of California and Delaware, and the fact that the claims
may concern different buildings does not change the result.
Judge Fitzgerald held that the Department waited too long to
file their Claims and that the Claims are barred by the statute
of limitations.
Judge Fitzgerald found that the Department had actual knowledge
of certain contamination and were, at the very least, on inquiry
notice of any other asbestos contamination in their buildings in
1990 at the latest. Inasmuch as the putative defendants in the
Alabama action included W. R. Grace, Judge Fitzgerald held that
it is beyond dispute that the State of California, and
therefore, the Department knew that asbestos contamination was
caused by Grace because the State sought to recover against
Grace in the Alabama action. Under California law, the statute
of limitations began to run at that time.
According to Bloomberg News, Judge Fitzgerald's ruling spared
the Debtors from having to pay US$130 million to repair damages
to 16 California buildings allegedly contaminated with asbestos.
(W.R. Grace Bankruptcy News, Issue No. 167; Bankruptcy
Creditors' Service, Inc. 215-945-7000 FAX 215-945-7001)
ASBESTOS LITIGATION: Court Favors Grace in Macerich Fresno Case
----------------------------------------------------------------
Judge Judith Fitzgerald denied Macerich Fresno Limited
Partnership's request for summary judgment with respect to Claim
No. 12758, and sustained W. R. Grace & Co.'s objection.
Macerich's Claim is effectively disallowed and expunged.
The Debtors objected to Macerich's claim on the basis that the
Claim is barred by the statute of limitations. Macerich, in 1988
and in 1996, conducted surveys to identify the presence of
asbestos-containing materials in the Fresno, Calif., mall that
it operated. Both surveys revealed that spray-applied
fireproofing on structural beams throughout the Mall contained
asbestos, that the Mall was in "adequate condition," and the
presence of asbestos fibers in the air remained below regulatory
limits.
Macerich sought summary judgment in its favor, asserting that
because the 1988 and 1996 surveys did not indicate that the
condition of the asbestos presented a problem at the time, it
did not have actual knowledge of its property damage claim.
Macerich asserted that potential dangers from asbestos is
insufficient to commence the running of the statute of
limitations, inasmuch as under California law it is knowledge of
damages that starts the statute running.
Judge Fitzgerald, in a six-page memorandum of opinion, finds
that Macerich knew it had damages as early as 1988 -- it knew
that asbestos fibers were in the air, although within regulatory
levels, that it would have to expend sums to abate the asbestos.
Judge Fitzgerald disallows Macerich's Claim as time-barred.
(W.R. Grace Bankruptcy News, Issue No. 167; Bankruptcy
Creditors' Service, Inc. 215-945-7000 FAX 215-945-7001)
ASBESTOS LITIGATION: Organizations Decry CDN6.5M ZAI Settlement
----------------------------------------------------------------
The Joint Plan of Reorganization filed by W. R. Grace & Co.,
Official Committee of Asbestos Personal Injury Claimants, the
Asbestos PI Future Claimants' Representative, and the Official
Committee of Equity Security Holders, incorporates a settlement
resolving the claims filed by the Canadian ZAI Claimants.
The settlement requires the Debtors to contribute CDN6.5
million, less any amounts the Debtors paid for the Canadian ZAI
Claimants' fees, to a Canadian ZAI PD Claims Fund.
According to a Mesotheliomaweb.org article, the Canadian ZAI
Claimants could receive as little as US$8.12 each once fees and
other costs are subtracted. The article also said that Pat
Martin, a Winnipeg member of parliament, criticized the deal as
"a farce especially when considering the cost of removing or
encapsulating existing Zonolite insulation could cost homeowners
thousands of dollars."
Blogger News Network agrees that the settlement benefits lawyers
more than it does the Canadian ZAI Claimants because half of the
CDN6.5 million is set to go to lawyers, which means that
Canadian ZAI Claimants will only end up with around US$600
apiece.
To have its reorganization plan deemed effective, and for the
asbestos trusts to be fully funded, W.R. Grace & Co. needs to
find US$1.5 billion to finance the reorganization plan, the
Baltimore Business Journal reported. However, the news agency
pointed out that the current credit market crisis makes it
complicated for Grace to find the funding.
The Journal said Grace posted the largest gains on the New York
Stock Exchange on Oct. 13, 2008, with the Company's shares
trading at US$10.58 per share up nearly 24 percent.
(W.R. Grace Bankruptcy News, Issue No. 167; Bankruptcy
Creditors' Service, Inc. 215-945-7000 FAX 215-945-7001)
ASBESTOS LITIGATION: MMIC & Everest Seek Changes in Neutrality
----------------------------------------------------------------
Mt. McKinley Insurance Company, formerly known as Gibraltar
Casualty Company, and Everest Reinsurance Company, formerly
known as Prudential Reinsurance Company, in the ASARCO LLC
bankruptcy case, ask Judge Richard S. Schmidt to modify the
Court's order dated May 29, 2008, extending the scope of
insurance neutrality addendum relating to the compromise and
settlement regarding resolution of derivative asbestos claims.
Judge Schmidt ruled in the May 2008 Order that the neutrality
clause does not apply to Mt. McKinley or Everest Reinsurance.
Based on its review of the competing plans of reorganization and
certain other recent Court rulings, the Insurance Companies have
determined that they are now acceptable to have the Neutrality
Order extended to apply to them in the Debtors' bankruptcy
cases, relates Tony L. Draper, Esq., at Walker Wilcox Matousek,
LLP, in Houston.
Extending the Neutrality Order to Mt. McKinley and Everest, Mr.
Draper avers, will significantly limit their participation at
the Plans' confirmation, and will:
-- Eliminate the need for extensive discovery;
-- Eliminate the need for expert witnesses by Mt. McKinley
and Everest and the parties seeking approval of the
Trust Agreement and Trust Distribution Procedures
contemplated in the Plans; and
-- Significantly reduce the time required for the
Confirmation Hearing.
Mr. Draper reminds the Court that the Debtors filed their
request to extend the scope of insurance neutrality well before
Mt. McKinley had seen so much as a draft of their Plan. As a
result, he says, neither the Court nor Mt. McKinley could know
how the Plan might affect Mt. McKinley's rights and interests.
"[Mt. McKinley] was required to evaluate the insurance
neutrality language in a complete vacuum, and it objected
pending review of the filed Plan," Mr. Draper tells the Court.
Mr. Draper adds that there were other reasons why the Debtors'
insurance neutrality provisions were not acceptable to Mt.
McKinley, when the Debtors filed their request, including the
fact that, back then, the Court had not yet ruled on whether Mt.
McKinley would be permitted to file a late claim. The Court
recently denied the late claim request.
Based on the Court's recent rulings and the fact that the final
versions of the Plans have now been filed, Mt. McKinley is in a
position to evaluate the terms of the Neutrality Order in a
meaningful setting, Mr. Draper explains. Having done so, Mt.
McKinley asks the Court to modify the Neutrality Order to
include Mt. McKinley, and in doing so, significantly reduce the
role that Mt. McKinley will play in the Confirmation Hearing.
If the Neutrality Order is not modified, Mt. McKinley will be
forced at confirmation to litigate the propriety of the TDP, the
Trust Agreement, and the issuance of injunctions under Section
524(g) of the Bankruptcy Code, Mr. Draper points out. He notes
that the litigation will require extensive factual discovery,
the presentation of fact and expert witnesses, and additional
briefing and exhibits.
(ASARCO Bankruptcy News, Issue No. 88; Bankruptcy Creditors'
Service, Inc. 215-945-7000 FAX 215-945-7001)
ASBESTOS LITIGATION: Oral Argument in ASARCO Presented on Oct. 7
----------------------------------------------------------------
In an Oct. 7, 2008 hearing before the U.S. District Court for
the Southern District of Texas, Brownsville Division, Americas
Mining Corporation, a subsidiary of Grupo Mexico, S.A.B. de
C.V., presented oral arguments stating that, based on the
evidence presented at trial, AMC did not cause any damage to
ASARCO LLC's creditors when it acquired 54.2 percent of Southern
Copper Corporation from ASARCO in 2003.
ASARCO continues to insist on return of the SCC stock as a
remedy arising out of this transaction because the Court had
earlier determined that AMC hindered and delayed certain ASARCO
creditors, Grupo Mexico said in a press release.
AMC argued, however, that ASARCO cannot meet its burden of proof
as to any damages caused to ASARCO or its creditors because AMC
has proposed a bankruptcy plan that would pay all creditors in
full such that ASARCO and its creditors have no standing to
pursue any remedies. AMC further argued that because reasonably
equivalent value was paid, there could be no economic damage. If
the Court agrees, there would be no material adverse economic
impact on AMC or Grupo Mexico, the company said.
AMC also argued that under the Court's equitable powers, it
should not allow the environmental and asbestos claimants to
recover anything more than the actual value of their allowed
claims in bankruptcy, Grupo Mexico related.
Under the competing bankruptcy plan supported by ASARCO, these
creditors would obtain a tremendous windfall should the court
order return of the SCC stock or the value of the stock. For
these reasons, AMC asked the Court to take these factors into
consideration in its determination of remedies for its final
judgment.
Throughout the Chapter 11 proceedings, ASARCO and these two
classes of creditors have systematically refused through an
estimation procedure in the bankruptcy court to determine the
amount of the liabilities and furthermore have denied AMC the
opportunity to have an effective voice in repeated efforts to
settle these claims. To the contrary, it appears that ASARCO has
promoted a plan with the motivation to strip AMC of its equity
interest in ASARCO, Grupo Mexico accused.
AMC also expressed during the October 7 hearing that it will
pursue all legal remedies to prevent any such windfall.
(ASARCO Bankruptcy News, Issue No. 88; Bankruptcy Creditors'
Service, Inc. 215-945-7000 FAX 215-945-7001)
ASBESTOS LITIGATION: Sterlite May Withdraw $2.6B ASARCO LLC Deal
----------------------------------------------------------------
ASARCO LLC's counsel informed Judge Schmidt during the Oct. 13,
2008 hearing that Sterlite Industries (India), Ltd., couldn't
complete its US$2.6 billion purchase of ASARCO's operating
assets due to the present credit crisis and a drop in metal
prices.
During the hearing, Judge Richard S. Schmidt, who is overseeing
ASARCO's Chapter 11 case, said the chances of ASARCO exiting
bankruptcy under control of Sterlite appeared "pretty slim,"
Joel Millman at the Wall Street Journal reported.
The Court will convene a hearing regarding the status of the
purchase deal on Nov. 4, 2008, at 2:00 p.m.
In June 2008, Sterlite outbid three other suitors for ASARCO's
assets, including ASARCO's parent, Grupo Mexico, S.A.B. de C.V.,
after offering US$2.6 billion for the assets. ASARCO hoped to
use the proceeds of the sale to fund its exit from more than
three years in Chapter 11.
In late July 2008, ASARCO filed a plan of reorganization, and
commenced solicitation of votes accepting the plan on September
25 after obtaining Judge Schmidt's approval of the disclosure
statement explaining its Plan.
Under the purchase agreement, Sterlite will purchase ASARCO's
operating assets, which include three open-pit copper mines and
a copper smelter in Arizona, a copper refinery, rod and cake
plant, and precious metal plants in Texas, for US$2.6 billion to
be financed through a mix of debt and existing cash reserves.
Sterlite will also assume ASARCO's operating liabilities but
will not assume legacy liabilities for asbestos and
environmental claims for ceased operations.
With Vedanta unable to close, ASARCO's counsel, Jack Kinzie,
Esq., at Baker Botts, L.L.P., said the mining company's plan to
exit bankruptcy "isn't feasible," Dow Jones reported. Bloomberg
News related that during the Oct. 13 hearing, Vedanta told
ASARCO to cut its price by "hundreds of millions of dollars."
Copper trades at US$2.51 per pound as of October 14, according
to charts published by the London Metal Exchange. A Reuters
report dated Oct. 14 said copper prices jumped almost 10 percent
after global efforts to recapitalize banks. Weakening demand
could push copper prices toward the marginal cost of production,
the same report said, citing David Wilson, senior economist at
Norilsk Nickel.
Vedanta disclosed that for the six months ended Sept. 30, 2008,
its aluminum production had hit record levels in the past six
months but its copper output had fallen. Vedanta's copper
division, according to the Financial Times, suffered a reduction
in output because of problems with the Tuticorin smelter in
southern India, and a drop in ore grade at the Konkola mine in
Zambia.
The inability of Sterlite to close the purchase deal would give
Grupo Mexico a chance to regain ownership of ASARCO. Grupo
Mexico filed a competing reorganization plan, valued at US$2.7
billion, for ASARCO and three of its debtor affiliates on August
26. That Plan contemplates payment to creditors 100% of what
ASARCO owes them.
Grupo Mexico vehemently opposed the sale of ASARCO's assets to
Sterlite and appealed Judge Schmidt's order approving the sale
and bidding procedures governing the transfer of the assets to
Sterlite. Grupo Mexico argued that it can top Sterlite's US$2.6
billion bid by funding a reorganization plan for ASARCO a US$2.7
billion funding.
Under the Plan, the Parent would provide up to US$2.7 billion in
cash as well as a US$440 million guarantee to assure payment of
all allowed creditor claims, including payment of asbestos and
environmental claims. The contribution, together with the US$1
billion in cash on hand at ASARCO and including the estimated
value of ASARCO, which would remain liable to creditors,
provides a total consideration of about US$6.74 billion.
Though providing full payment to creditors, Grupo Mexico's
counsel, Luc Despins, Esq., at Milbank, Tweed, Hadley & McCloy,
LLP, admitted that no creditor has backed the Parent's Plan.
The Debtors, the official committees, the Future Claims
Representative, and the U.S. Government, objected to the
approval of Grupo Mexico's Disclosure Statement.
The U.S. District Court for the Southern District of Texas
recently dismissed Grupo Mexico's appeal holding that Judge
Schmidt's Bid Procedures Order are not final. Grupo Mexico
lodged the appeal to the U.S. Court of Appeals for the Fifth
Circuit.
Grupo Mexico still wants to restructure ASARCO, the WSJ said,
citing the mining company's spokesman Juan Rebolledo Gout.
"Naturally, we are analyzing our restructuring plan under the
light of current circumstances. Now it is more important than
ever to have clear definitions on the liabilities of ASARCO," he
said.
(ASARCO Bankruptcy News, Issue No. 88; Bankruptcy Creditors'
Service, Inc. 215-945-7000 FAX 215-945-7001)
ASBESTOS LITIGATION: Supreme Court Rules on Claims on October 15
----------------------------------------------------------------
The Ohio Supreme Court, on Oct. 15, 2008, ruled that a 2004 law
making it difficult to seek damages for asbestos-related deaths
and illnesses can constitutionally be applied to cases that were
in the pipeline before the law went into effect, The Akron
Beacon Journal reports.
The 5-2 ruling means that many of the 40,000 Ohio cases that
were in the works when the law was enacted are likely to be
dismissed.
Ohio at one time had the largest backlog of asbestos cases in
the United States.
The 2004 law requires a plaintiff to show that a medical expert
who personally treated the plaintiff has found that the
patient's health has been substantially impaired by exposure to
asbestos.
Writing for the majority, Justice Robert Cupp said Ohio's law
can be applied retroactively because the changes were "remedial
and procedural," simply putting holds on the claims of thousands
of Ohioans who were not yet showing symptoms of asbestos-related
cancers.
The case heard by the high court involves multiple defendants,
including Ironton widow Linda Ackison, who filed a wrongful
death suit in May 2004 against her late husband's former
employer, Dayton Malleable. Mrs. Ackison alleged in the suit
that long-term exposure to asbestos in the workplace contributed
to the illness and death of her husband Danny Ackison.
Only Justice Paul Pfeifer sided with Mrs. Ackison in Oct. 15,
2008's ruling, saying the 2004 law could not be considered
merely procedural when state lawmakers effectively "legislated
away" her claim to her husband's damages.
Richard Schuster, Esq., an attorney for several Fortune 500
firms and other businesses sued by Mrs. Ackison, called the
ruling significant to the companies and to Ohio's ailing
economy.
Mr. Schuster said the asbestos lawsuits appeared in such volume
after workers at potentially hazardous work sites around the
country were offered mass screenings in search of related health
conditions.
Vin Green, Esq., an attorney for Mrs. Ackison, said it is
"completely and totally inaccurate" to say that those who filed
asbestos-related lawsuits aren't sick.
After the Georgia Supreme Court struck down the retroactivity of
that state's asbestos litigation law, state lawmakers passed
another law that has not been challenged in court, Mr. Schuster
said.
A challenge to a similar law in Florida is before the courts and
expected to be decided in 2009. A Kansas law has not been
legally challenged.
ASBESTOS LITIGATION: Gilliver Death Linked to Exposure to Hazard
----------------------------------------------------------------
An inquest heard that the death of 63-year-old Michael Gilliver,
of Swadlincote, Derbyshire, England, was linked to exposure to
asbestos, the Burton Mail reports.
At the time of his death, on Aug. 21, 2008, Mr. Gilliver was
trying to claim industrial compensation after doctors diagnosed
a squamous cell carcinoma in his left lung.
Derby and South Derbyshire Coroners' Court heard on Oct. 13,
2008 how Mr. Gilliver was at home with his daughter, Victoria,
when he died.
The inquest was told that Mr. Gilliver had worked at power
stations including Drakelow, Willington, Rugeley and Ratcliffe,
and Burton breweries Bass and Ind Coope, removing asbestos from
the boilers between 1967 and 1985.
Mr. Gilliver, who was described as a "heavy" smoker until 1976,
eventually became ill, developing pneumonia and breathing
problems.
Doctors at Burton's Queen's Hospital diagnosed lung cancer in
March 2007, and Mr. Gilliver began legal proceedings to claim
compensation.
Before he died, Mr. Gilliver wrote a statement of evidence which
was referred to during proceedings, in which he claimed he was
not given protective clothing until years after starting work
nor warned of the dangers of asbestos.
Mrs. Gilliver told the court she believed her husband would
still be alive today if not for asbestos exposure.
Derby Hospitals NHS Trust pathologist Dr. Ivan Robinson said he
found high levels of asbestos fiber in Mr. Gilliver's lungs and
said that although smoking was a contributory factor in his
death, asbestos exposure was the cause.
Assistant deputy coroner Loiuse Pinder said, "It is reasonable
to say that his job played a part in his death. I have no doubt
that if he had not been exposed to asbestos he would not have
got cancer, so I record a verdict of industrial disease. Smoking
did play a part, but how much is not clear."
ASBESTOS LITIGATION: Wallington Death Linked to Hazard Exposure
----------------------------------------------------------------
An inquest heard that the death of 60-year-old Cheryl
Wallington, of Monkton Heathfield, England, was linked to
exposure to asbestos, the Somerset County Gazette reports.
Mrs. Wallington was exposed to asbestos at a hospital in Watford
in the 1960s while when she worked in the X-ray department while
studying to become an accountant.
Mrs. Wallington's husband, Geoff Wallington, said she had been
required to retrieve film and other items from a "very dusty and
confined, stuffy room."
Mr. Wallington said his wife lived a fit and healthy life, and
never smoked, but in 2007 developed mesothelioma.
West Somerset Coroner Michael Rose said there was a "very real
possibility" that Mrs. Wallington had inhaled asbestos as a
young woman but he could not give that as a cause of death
because experts believe it is possible to develop the disease
without exposure.
Mr. Rose returned a verdict that Mrs. Wallington died of
pneumonia after contracting mesothelioma.
ASBESTOS LITIGATION: Taylor's Death Linked to Exposure to Hazard
----------------------------------------------------------------
An inquest heard that the death of 67-year-old Frank Taylor, a
former building and demolition worker, to mesothelioma was
linked to exposure the asbestos, the Fenland Citizen reports.
The inquest heard that Mr. Taylor, of Wisbech, England, was
diagnosed with the disease in April 2008 and died at home on
Aug. 22, 2008.
A statement from Mr. Taylor's widow, Valerie, which was read out
at the hearing, said Mr. Taylor had worked in the demolition
trade for many years, demolishing buildings without wearing
protective clothing.
Mrs. Taylor said the dangers of asbestos had not been known at
that time and his work would have brought him into contact with
asbestos.
Coroner William Morris recorded that Mr. Taylor died through an
industrial disease.
ASBESTOS LITIGATION: Tonbridge Police Warns of Missing Asbestos
----------------------------------------------------------------
Police in Tonbridge, Kent, England, have issued a warning after
more than two dozen sacks of toxic asbestos waste disappeared
from a car park, the Kent and Sussex Courier reports.
The 30 bags of insulation waste were in the back of a Ford
Tipper lorry stolen from the Southern Asbestos car park in
Cannon Lane.
Neighborhood officer PC Claire Taylor said, "Naturally we are
very keen to trace the lorry and would ask anyone with
information to contact us. The insulation waste was safely
bagged when it was put in the truck but is very toxic and is a
high risk substance."
Pc Taylor added anyone tampering with the bags would be putting
themselves at risk and she urged "extreme caution."
The asbestos had been double-bagged in the back of the white
lorry when it was taken.
*********
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
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USA. Glenn Ruel S. Senorin, Janice M. Mendoza, Freya Natasha F.
Dy, and Peter A. Chapman, Editors.
Copyright 2008. All rights reserved. ISSN 1525-2272.
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