/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/090220.mbx C L A S S A C T I O N R E P O R T E R Friday, February 20, 2009, Vol. 11, No. 36 Headlines BECTON DICKINSON: Consolidated N.J. Antitrust Suit Still Pending BECTON DICKINSON: Opposing Healthcare Workers' Certification BOEING CO: Bid for Leave to Appeal "Spano" Certification Pending BOEING CO: Faces Lawsuit Over Sale of Wichita Facility to Spirit BOEING CO: Summary Judgment Motions in ERISA Suit Still Pending CANO PETROLEUM: Securities Fraud Litigation Ongoing in New York D.R. HORTON: Appeal to RESPA Violations Suit Dismissal Pending D.R. HORTON: Calif. Home Buyers' Deception Suit Remains Pending FIRST ACCEPTANCE: Settlement of Ancillary Products Suits Okayed FIRST MARBLEHEAD: Seeks to Dismiss Consolidated Securities Suit MICROSOFT CORP: Wash. Court Revokes Class Status in Vista Suit OPENWAVE SYSTEMS: February 27 Final Hearing Set for Settlement OPNEXT INC: Consolidated N.J. Securities Fraud Suit Stayed PRESTIGE BRANDS: Finalizing Proposed Notice of Consolidated Suit RETROFOAM CANADA: Faces CDN$500M Lawsuit Over Banned Substance RIGEL PHARMACEUTICALS: Faces Lawsuit Over 2008 Stock Offering STANDARD OIL: Gas Stations File Suit For Return of Federal Taxes STANFORD GROUP: Faces Securities Fraud Litigation in Texas STATE FARM: Faces Tex. Suit Over Business Interruption Proceeds New Securities Fraud Cases COLONIAL BANCGROUP: Coughlin Stoia Files Securities Suit in Ala. CUSHING MLP: Brower Piven Announces Securities Fraud Suit Filing ING GROEP: Wolf Haldenstein Files Securities Fraud Suit in N.Y. INTREPID POTASH: Glancy Binkow Files Colo. Securities Fraud Suit WASHINGTON MUTUAL: Law Firms File Securities Fraud Litigation Asbestos Alerts ASBESTOS LITIGATION: Tennessee Valley Has $8M Accretion Expense ASBESTOS LITIGATION: Hartford Fin'l. Involved in Insurance Cases ASBESTOS LITIGATION: EnPro Ind. Has $380.2M Liability at Dec. 31 ASBESTOS LITIGATION: GenCorp Faces 157 Pending Claims at Nov. 30 ASBESTOS LITIGATION: BorgWarner Facing 27,000 Claims at Dec. 31 ASBESTOS LITIGATION: CNA Coverage Lawsuit Ongoing v. BorgWarner ASBESTOS LITIGATION: Illegal Dumping Found in Cooma, Australia ASBESTOS LITIGATION: 3 Reading Locals' Deaths Linked to Exposure ASBESTOS LITIGATION: U.K. Deal Reached to Aid Plaques Sufferers ASBESTOS LITIGATION: Oakes Plant Manager Death Linked to Hazard ASBESTOS LITIGATION: Hammersmith Locals Cite 4 Cases in 3 Months ASBESTOS LITIGATION: Celanese Units Facing 559 Cases as of Dec. ASBESTOS LITIGATION: Burlington Facing 1,833 Claims at Dec. 31 ASBESTOS LITIGATION: ABB Cites $25M Payment for Former Operation ASBESTOS LITIGATION: Honeywell Records $125M Charges at Dec. 31 ASBESTOS LITIGATION: Honeywell Has $1.538B Liability at Dec. 31 ASBESTOS LITIGATION: Honeywell Records $877Mil NARCO Receivable ASBESTOS LITIGATION: Honeywell Still Involved in Travelers Case ASBESTOS LITIGATION: Bendix Has 51,951 Pending Claims at Dec. 31 ASBESTOS LITIGATION: Bendix, NARCO Liability Recorded at $1.709B ASBESTOS LITIGATION: Coca-Cola Spends $3.5M for Cleanup in 2008 ASBESTOS LITIGATION: Maremont Judgment Reversed in Polanco Case ASBESTOS LITIGATION: 10 Suits Filed on Feb. 2–6 in Madison Court ASBESTOS LITIGATION: 13 Suits Filed on Jan. 26-30 in Madison ASBESTOS LITIGATION: RICO Breach Action Filed in Miss. on Feb. 9 ASBESTOS LITIGATION: Woods' Suit Filed v. Union Carbide in Texas ASBESTOS LITIGATION: 3M Faces 2,700 Respirator Claims at Dec. 31 ASBESTOS LITIGATION: 3M Cites $35Mil Aearo Liability at Dec. 31 ASBESTOS LITIGATION: 3M Reserves $105M for Liability at Dec. 31 ASBESTOS LITIGATION: 3M Awaits Judge's Assignment in Continental ASBESTOS LITIGATION: Alcoa, Units Still Facing "Premises" Cases ASBESTOS LITIGATION: James Hardie Cites $93.6M Adjustment at 3Q ASBESTOS LITIGATION: Hardie Cites Liability at $59.4M at Dec. 31 ASBESTOS LITIGATION: Hardie Cites 502 Pending Claims at Dec. 31 ASBESTOS LITIGATION: Goodrich, Units Still Have Exposure Actions ASBESTOS LITIGATION: 25T Claims Pending v. Fairmont in 6 States ASBESTOS LITIGATION: CONSOL Energy Has Cases in Pa., Ill. Courts ASBESTOS LITIGATION: Argument Heard in St. Louis Case on Feb. 17 ASBESTOS LITIGATION: Burnley Ex-Builder's Death Linked to Hazard ASBESTOS LITIGATION: Oley Valley School Gym Cleanup Costs $36T ASBESTOS LITIGATION: DENR Probes Disposal of Hazards in Benguet ASBESTOS LITIGATION: 22% of Kent Sites Cited for Safety Progress ASBESTOS LITIGATION: Report Indicates Kier Breached Safety Rules ASBESTOS LITIGATION: Former T&N Employees to Keep Gov't. Payout ASBESTOS LITIGATION: Brown Questioned on Reversing Lords' Ruling ASBESTOS LITIGATION: Dismissal Motion in Ekweani Lawsuit Granted ASBESTOS LITIGATION: Judgment Ok'd in Rahmanizad Case in Calif. ASBESTOS LITIGATION: Rogers Records $16.64M Liability at Dec. 31 ASBESTOS LITIGATION: AMSF Lawsuit v. Halliburton Company Stayed ASBESTOS LITIGATION: Halliburton Records No Liability at Dec. 31 ASBESTOS LITIGATION: Cleanup at Marion Memorial to Cost $301,000 ASBESTOS LITIGATION: Miller v. Illinois Central Filed on Feb. 13 ASBESTOS LITIGATION: Kavanagh to Pay GBP4T for Disposal Breaches ASBESTOS LITIGATION: Molloy Denies Grace Change-of-Venue Motion ASBESTOS LITIGATION: Claims v. Goodyear Drop to 99T at Dec. 31 ********* BECTON DICKINSON: Consolidated N.J. Antitrust Suit Still Pending ---------------------------------------------------------------- A consolidated antitrust class-action lawsuit filed against Becton, Dickinson and Co. remains pending in the U.S. District Court for the District of New Jersey, according to the company's Feb. 9, 2009 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Dec. 31, 2008. Direct Purchaser's Litigation Becton Dickinson is named as a defendant in five purported class-action complaints brought on behalf of direct purchasers of the company's products, such as distributors, alleging that the company violated federal antitrust laws, resulting in the charging of higher prices for the company's products to the plaintiff and other purported class members. The cases filed are: 1. "Louisiana Wholesale Drug company, Inc., et. al. vs. Becton Dickinson and company" (Civil Action No. 05- 1602, U.S. District Court, Newark, New Jersey), filed on March 25, 2005; 2. "SAJ Distributors, Inc. et. al. vs. Becton Dickinson & Co." (Case 2:05-CV-04763-JD, United States District Court, Eastern District of Pennsylvania), filed on Sept. 6, 2005; 3. "Dik Drug company, et. al. vs. Becton, Dickinson and company" (Case No. 2:05-CV-04465, U.S. District Court, Newark, New Jersey), filed on Sept. 12, 2005; 4. "American Sales company, Inc. et. al. vs. Becton, Dickinson & Co." (Case No. 2:05-CV-05212-CRM, U.S. District Court, Eastern District of Pennsylvania), filed on Oct. 3, 2005; and 5. "Park Surgical Co. Inc. et. al. vs. Becton, Dickinson and company" (Case 2:05-CV-05678-CMR, U.S. District Court, Eastern District of Pennsylvania), filed on Oct. 26, 2005. The actions brought by Louisiana Wholesale Drug company and Dik Drug company in New Jersey have been consolidated under the caption "In re Hypodermic Products Antitrust Litigation." Indirect Purchaser's Litigation Becton Dickinson is also named as a defendant in four purported class-action suits brought on behalf of indirect purchasers of Becton Dickinson's products, alleging that the company violated federal antitrust laws, resulting in the charging of higher prices for the company's products to the plaintiff and other purported class members. The cases filed are: 1. "Jabo's Pharmacy, Inc., et. al. v. Becton Dickinson & company" (Case No. 2:05-CV-00162, U.S. District Court, Greenville, Tennessee), filed on June 7, 2005; 2. "Drug Mart Tallman, Inc., et. al. v. Becton Dickinson and company" (Case No. 2:06-CV-00174, U.S. District Court, Newark, New Jersey), filed on Jan. 17, 2006; 3. "Medstar v. Becton Dickinson" (Case No. 06-CV-03258- JLL (RJH), U.S. District Court, Newark, New Jersey), filed on May 18, 2006; and 4. "The Hebrew Home for the Aged at Riverdale v. Becton Dickinson and company" (Case No. 07-CV-2544, U.S. District Court, Southern District of New York), filed on March 28, 2007. A fifth purported class-action complaint on behalf of indirect purchasers, captioned "International Multiple Sclerosis Management Practice v. Becton Dickinson & company, Case No. 2:07-v-10602," filed on April 5, 2007, in the U.S. District Court for the District of New Jersey, was voluntarily withdrawn by the plaintiff. The plaintiffs in each of the antitrust class action suits seek monetary damages. All of the antitrust class-action suits have been consolidated for pre-trial purposes in a Multi-District Litigation in U.S. District Court for the District of New Jersey. Becton, Dickinson and Co. -- http://www.bd.com/-- is a medical technology company engaged principally in the manufacture and sale of a range of medical supplies, devices, laboratory equipment and diagnostic products used by healthcare institutions, life science researchers, clinical laboratories, industry and the general public. BECTON DICKINSON: Opposing Healthcare Workers' Certification ------------------------------------------------------------ Becton, Dickinson and Co., continues to oppose class certification in the pending product liability class-action lawsuits commenced by healthcare workers, including pursuing all appropriate rights of appeal, according to the company's Feb. 9, 2009 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Dec. 31, 2008. The company and other manufacturer and several medical product distributors are named defendants in product liability class action lawsuits commenced by healthcare workers who allegedly sustained accidental needlesticks, but have not become infected with any disease. Generally, these actions allege that healthcare workers have sustained needlesticks using hollow-bore needle devices manufactured by Becton Dickinson and, as a result, require medical testing, counseling and treatment. In some cases, these actions additionally allege that the healthcare workers have sustained mental anguish. The plaintiffs seek money damages in all of these actions. Becton Dickinson had previously been named as a defendant in eight similar suits, each of which has either been dismissed with prejudice or voluntarily withdrawn. Currently, there are two pending suits in Ohio and South Carolina. The Ohio case, "Grant vs. Becton Dickinson et al., Case No. 98CVB075616," was filed in Franklin County Court on Sept. 21, 2006. The Ohio Court of Appeals has reversed the trial court's class certification order. The matter has been remanded to the trial court for a determination of whether the class can be redefined. The South Carolina case -- "Bales vs. Becton Dickinson et. al." (Case No. 98-CP-40-4343, Richland County Court of Common Pleas, South Carolina) -- was filed on Nov. 25, 1998, on behalf of an unspecified number of healthcare workers seeking class action certification under the laws of this state in state court. Becton, Dickinson and Co. -- http://www.bd.com/-- is a medical technology company engaged principally in the manufacture and sale of a range of medical supplies, devices, laboratory equipment and diagnostic products used by healthcare institutions, life science researchers, clinical laboratories, industry and the general public. BOEING CO: Bid for Leave to Appeal "Spano" Certification Pending ---------------------------------------------------------------- Boeing Co.'s petition for leave to appeal the class certification order in an excessive 401(k) fee lawsuit is pending before the Seventh Circuit Court of Appeals. On Oct. 13, 2006, Boeing was named as a defendant in the lawsuit. The plaintiffs, seeking to represent a class of similarly situated participants and beneficiaries in the Boeing Company Voluntary Investment Plan, alleged that fees and expenses incurred by the Plan were and are unreasonable and excessive, not incurred solely for the benefit of the Plan and its participants, and were undisclosed to participants. The plaintiffs further alleged that defendants breached their fiduciary duties in violation of Section 502(a)(2) of ERISA, and sought injunctive, and equitable relief pursuant to Section 502(a)(3) of ERISA. The plaintiffs have filed a motion to certify the class, which Boeing has opposed. On Sept. 10, 2007, the court issued an order staying class certification motion pending resolution by the U.S. Court of Appeals for the Seventh Circuit of a related case, "Lively v. Dynegy, Inc." On Dec. 14, 2007, the court granted the plaintiffs leave to file an amended complaint, which added the company's Employee Benefits Investment Committee as a defendant, and included new allegations regarding alleged breach of fiduciary duty. The stay of proceedings entered by the court on Sept. 10, 2007, pending resolution by the U.S. Court of Appeals for the Seventh Circuit of "Lively v. Dynegy, Inc.," was lifted on April 3, 2008, after notification that the Lively case had been settled. On April 16, 2008, the plaintiffs sought leave to file a second amended complaint that would add investment performance allegations (Class Action Reporter, July 30, 2008). Judge David R. Herndon of the U.S. District Court for the Southern District of Illinois sanctioned the excessive 401(k) fee lawsuit against Boeing Co. as a class action. He said the class action litigation would be made up of nearly 190,000 plan participants, Fred Schneyer writes for the PlanAdviser. Judge Herndon turned aside Boeing's claim that the case should not be granted class action status because the allegations the company paid excessive plan fees would require participant-by- participant consideration—making it too difficult to judge the merits of the case collectively. In addition, Judge Herndon said class certification was appropriate because the lawsuit involved the common issue of whether the defendants selected imprudent and improper investment options for the plan. The court also noted that the lawsuit raised the common issue of whether the administrative fees paid by the plan were reasonable. The court rejected the defendants' contention that the class should not include future or past participants. "[T]he Court finds that the inclusion of future class members is appropriate here because Plaintiffs request an injunction prohibiting the continuation of current practices; and this injunctive relief, if granted, would affect not just present participants, but future participants as well," Judge Herndon wrote. On Sept. 9, 2008, the company filed a motion for summary judgment to dismiss claims arising prior to Sept. 27, 2000 based on the ERISA statute of limitations. The plaintiffs opposed this motion and the motion is currently pending before the court. On Oct. 14, 2008, the company filed a petition for leave to appeal the class certification order to the Seventh Circuit Court of Appeals. The plaintiffs opposed this motion and it is currently pending before the court of appeals, according to the company's Feb. 9, 2009 Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended Dec. 31, 2008. The suit is "Spano et al. v. Boeing Company, The et al., Case No. 3:06-cv-00743-DRH-DGW," filed in the U. S. District Court for the Southern District of Illinois, Judge David R. Herndon presiding. Representing the plaintiffs is: Daniel V. Conlisk, Esq. (DConlisk@uselaws.com) Schlichter, Bogard et al. Generally Admitted 100 South Fourth Street, Suite 900 St. Louis, MO 63102 Phone: 314-621-6115 Representing the defendants are: Lars C. Golumbic, Esq. (lgolumbic@groom.com) Groom Law Group, Chartered 1701 Pennsylvania Ave. NW, Suite 1200 Washington, DC 20006 Phone: 202-861-6615 Fax: 202-659-4503 - and - Lisa Demet Martin, Esq. (lmartin@bryancave.com) Bryan Cave 211 North Broadway One Metropolitan Square, Suite 3600 St. Louis, MO 63102 Phone: 314-259-2000 Fax: 314-259-2020 BOEING CO: Faces Lawsuit Over Sale of Wichita Facility to Spirit ---------------------------------------------------------------- The Boeing Co. continues to face an alleged class-action lawsuit involving the company's sale of the Wichita facility to Spirit Aerospace, Inc. in the U.S. District Court for the District of Kansas. The case, filed on Feb. 21, 2007, is brought under the Employee Retirement Income Security Act (ERISA), and, in general, claims that the company has not properly provided benefits to certain categories of former employees affected by the sale. On May 22, 2008, plaintiffs filed a third amended complaint and on June 3, 2008, filed a motion to certify a class. On July 14, 2008, the court granted class certification for the purpose of adjudicating liability for the class of employees who went to work for Spirit, and deferred class certification motions for the class of employees who did not go to work for Spirit. No further updates regaring the case were disclosed by the company in its Feb. 9, 2009 Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended Dec. 31, 2008. The Boeing Co. -- http://www.boeing.com/-- is involved in the design, development, manufacture, sale and support of commercial jetliners, military aircraft, satellites, missile defense, human space flight, and launch systems and services. The Company operates in five principal segments: Commercial Airplanes, Precision Engagement and Mobility Systems, Network and Space Systems, Support Systems and Boeing Capital Corporation. PE&MS, N&SS and Support Systems comprise the Company's Integrated Defense Systems business. The Other segment classification principally includes the activities of Engineering, Operations and Technology, an advanced research and development organization focused on technologies, processes and the creation of new products. BOEING CO: Summary Judgment Motions in ERISA Suit Still Pending --------------------------------------------------------------- The cross-motions for summary judgment in a consolidated class- action lawsuit against The Boeing Co., which alleges violations of the Employee Retirement Income Security Act, are still pending. On Sept. 13, 2006, two UAW (United Auto Workers) Local 1069 retirees filed a class action lawsuit in the U.S. District Court for the Middle District of Tennessee alleging that recently announced changes to medical plans for retirees of UAW Local 1069 constituted a breach of collective bargaining agreements under Section 301 of the Labor-Management Relations Act and Section 502(a)(1)(B) of ERISA. On Sept. 15, 2006, the company filed a lawsuit in the U.S. District Court for the Northern District of Illinois against the International UAW and two retiree medical plan participants seeking a declaratory judgment confirming that the company has the legal right to make changes to these medical benefits. On June 4, 2007, the Middle District of Tennessee ordered that the company's case be transferred to the Northern District of Illinois. The two cases were consolidated on Sept. 24, 2007. The UAW, Oct. 26, 2007, filed a motion to file a second amended complaint in which it sought to drop the retirees' claim for vested lifetime benefits based on successive collective bargaining agreements and instead allege that the current collective bargaining agreement is the sole alleged source of rights to retiree medical benefits. The company opposed the motion. On Jan. 17, 2008, the court granted the motion to amend the complaint on the condition that the lifetime retiree benefits claims are to be dismissed with prejudice. In addition, both parties filed motions for class certification on Nov. 16, 2007, and filed briefs on class certification on Feb. 28, 2008. The parties filed cross-motions for summary judgment on May 27, 2008 (Class Action Reporter, July 30, 2008) On Sept. 30, 2008, the court certified a class of retirees for the vested lifetime benefits claims and the claims pertaining to the current collective bargaining agreement. The summary judgment motions pending before the court, according to the company's Feb. 9, 2009 Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended Dec. 31, 2008. The Boeing Co. -- http://www.boeing.com/-- is involved in the design, development, manufacture, sale and support of commercial jetliners, military aircraft, satellites, missile defense, human space flight, and launch systems and services. The Company operates in five principal segments: Commercial Airplanes, Precision Engagement and Mobility Systems, Network and Space Systems, Support Systems and Boeing Capital Corporation. PE&MS, N&SS and Support Systems comprise the Company's Integrated Defense Systems business. The Other segment classification principally includes the activities of Engineering, Operations and Technology, an advanced research and development organization focused on technologies, processes and the creation of new products. CANO PETROLEUM: Securities Fraud Litigation Ongoing in New York --------------------------------------------------------------- The outside directors and underwriters of Cano Petroleum, Inc. continue to face a purported securities fraud class-action lawsuit in New York. On Oct. 2, 2008, the following lawsuit (08 CV 8462) was filed in the U.S. District Court for the Southern District of New York against David W. Wehlmann; Gerald W. Haddock; Randall Boyd; Donald W. Niemiec; Robert L. Gaudin; William O. Powell, III, and the underwriters alleging violations of the federal securities laws. The plaintiff seeks to certify the suit as a class-action. The lawsuit alleges that the prospectus for the June 26, 2008 public offering of Cano common stock contained statements regarding Cano's proved reserve amounts and standards that were materially false and overstated Cano's proved reserves. Messrs. Wehlmann, Haddock, Boyd, Niemiec, Gaudin and Powell were Cano outside directors on June 26, 2008. The lawsuit seeks an unspecified amount of damages for the class if the lawsuit is certified as a class action. No further developments were reported in the company's Feb. 9, 2009 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Dec. 31, 2008. Cano Petroleum, Inc. -- http://www.canopetro.com/-- is an independent oil and natural gas company that is primarily utilizing waterflooding and enhanced oil recovery (EOR) techniques to increase production and reserves at its existing properties. The Company's assets are located onshore United States in Texas, New Mexico and Oklahoma. Cano's proved oil and natural gas reserves as of June 30, 2008, were prepared by Miller and Lents, Ltd., international oil and gas consultants. As of September 10, 2008, it had 17 wells containing multiple completions. On September 10, 2008, the Company had total acreage of 74,200 gross acres and 70,805 net acres, all of which was considered developed acres. Cano sells its crude oil and natural gas production to several independent purchasers. D.R. HORTON: Appeal to RESPA Violations Suit Dismissal Pending -------------------------------------------------------------- The appeal filed by the plaintiff in a dismissed purported class-action suit, entitled "Yeatman et al. v. D.R. Horton, Inc., et al., Case No. 4:07-cv-00081-BAE-GRS," remains pending. The suit was filed against D.R. Horton, Inc., in the U.S. District Court for the Southern District of Georgia, alleging violations of the Real Estate Settlement Procedures Act. The suit, commenced by John R. Yeatman on June 15, 2007, also names as defendant D.R. Horton's mortgage company -- DHI Mortgage Co. Mr. Yeatman, who claims that he was forced to use the company's affiliated mortgage service to buy his home so that the company could get discounts and incentives, is seeking class-action status for his suit. The complaint specifically seeks certification of a class alleged to include persons who, within the year preceding the filing of the suit, purchased a home from the company and obtained a mortgage for such purchase from the affiliated mortgage company subsidiary. The suit alleges that the company violated Section 8 of the Real Estate Settlement Procedures Act by effectively requiring its homebuyers to use its affiliated mortgage company to finance their home purchases by offering certain discounts and incentives. The action seeks damages in an unspecified amount and injunctive relief. On April 23, 2008, the Court granted the company's request and dismissed the complaint with prejudice. The plaintiff filed a notice of appeal (Class Action Reporter, Aug. 28, 2008). The appeal is currently pending, according to the company's Feb. 6, 2009 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Dec. 31, 2008. The suit is "Yeatman, et al. v. D.R. Horton, Inc., et al., Case No. 4:07-cv-00081-BAE-GRS," filed in the U.S. District Court, Southern District of Georgia, Judge B. Avant Edenfield, presiding. Representing the plaintiff is: Thomas A. Withers, Esq. (TWithers@gcpwlaw.com) Gillen, Cromwell, Parker & Withers, LLC P.O. Box 10164 Savannah, GA 31412 Phone: 912-447-8400 Fax: 912-233-6584 Representing the defendants is: David M. Souders, Esq. Weiner, Brodsky, Sidman & Kider, PC 1300 19th Street, NW, Fifth Floor Washington, DC 20036 Phone: 202-628-2000 Fax: 202-628-2011 D.R. HORTON: Calif. Home Buyers' Deception Suit Remains Pending --------------------------------------------------------------- A purported class-action suit in California that accuses D.R. Horton, Inc. and Western Pacific Housing of illegally forcing or deceiving homebuyers into financing their houses through DHI Mortgage Co., at uncompetitive prices, is at the early stages of litigation, according to D.R. Horton's Feb. 6, 2009 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Dec. 31, 2008. On March 24, 2008, a putative class-action suit, entitled "James Wilson, et al. v. D.R. Horton, Inc., et al.," was filed by five customers of Western Pacific Housing, Inc. -- one of the company's wholly owned subsidiaries -- against the company, Western Pacific Housing and the company's affiliated mortgage company subsidiary, in the U.S. District Court for the Southern District of California. The complaint seeks certification of a class alleged to include persons who, within the four years preceding the filing of the suit, purchased a home from the company, or any of its subsidiaries, and obtained a mortgage for such purchase from the company's affiliated mortgage company subsidiary. The suit alleges that the company violated Section 1 of the Sherman Antitrust Act and Sections 16720, 17200 and 17500 of the California Business and Professions Code by effectively requiring its homebuyers to apply for a loan through its affiliated mortgage company. It also alleges that the homebuyers were either deceived about loan costs charged by the company's affiliated mortgage company or coerced into using its affiliated mortgage company, or both, and that discounts and incentives offered by the company or its subsidiaries to buyers who obtained financing from its affiliated mortgage company were illusory. The action seeks treble damages in an unspecified amount and injunctive relief. According to the April 2, 2008 edition of The Class Action Reporter, the plaintiffs request: -- disgorgement and restitution to plaintiffs and all class members; -- actual damages and treble damages to plaintiffs and all class members; -- attorneys' fees and the costs of suit incurred; -- prejudgment interest as allowed by law; and -- equitable and injunctive relief (Class Action Reporter, Aug. 28, 2008). The suit, "James Wilson, et al. v. D.R. Horton, Inc., et al., Case No: 08 CV 592 BEN RBB," is filed in the U.S. District Court for the Southern District of California. Representing the plaintiffs is: Norman B. Blumenthal, Esq. (norm@bamlawlj.com) Blumenthal & Nordrehaug 2255 Calle Clara La Jolla, CA 92037 Phone: 858-551-1223 Fax: 858-551-1232 Representing the defendants is: John T. Brooks, Esq. (jtbrooks@luce.com) Luce Forward Hamilton and Scripps 600 West Broadway, Suite 2600 San Diego, CA 92101-3372 Phone: 619-236-1414 Fax: 619-232-8311 FIRST ACCEPTANCE: Settlement of Ancillary Products Suits Okayed --------------------------------------------------------------- First Acceptance Corp.'s settlement agreements resolving several lawsuits in Alabama and Georgia concerning the company's sales practices related to ancillary products currently or formerly sold by the company in those states have been approved, according to the company's Feb. 9, 2009 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarter ended Dec. 31, 2008. The company is a party to litigation in Alabama and Georgia in which allegations are made with respect to the company' sales practices, primarily the sale of motor club memberships currently or formerly sold in those states. "Annette Rush v. Village Auto Insurance Company, Inc. (now known as First Acceptance Insurance Company of Georgia, Inc.)" was filed on October 26, 2005, as a putative class action in the Superior Court of Fulton County, Georgia. "Margaret Franklin v. Vesta Insurance Corp., et al.," was filed on July 14, 2006, as a putative class action in the Circuit Court of Bullock County, Alabama. "Keisha Milbry Monday, et al. v. First Acceptance Corp., et al.," was filed on February 13, 2007, in the Circuit Court of Bullock County, Alabama. "Solomon and Catherine Warren, et al. v. First Acceptance Corp., et al.," was filed on November 9, 2007, in the Circuit Court of Barbour County, Alabama. The suits generally allege that the company implemented a program to convince its consumers who purchased automobile insurance policies to also purchase motor club memberships or that it charged its consumers billing fees associated with the company's products that were not properly disclosed, and seek unspecified damages and attorneys' fees. Notwithstanding the foregoing, to avoid the uncertainty, risks and costs of further litigation, the company has entered into a settlement agreement effective Sept. 10, 2008 with the plaintiffs in the Georgia litigation. Pursuant to the terms of the settlement agreement, the plaintiffs in the Georgia litigation were divided into two classes: -- persons insured by the Company on Sept. 1, 2008 who purchased an automobile club membership with their automobile insurance; and -- persons insured by the Company prior to Sept. 1, 2008 who purchased an automobile club membership with their automobile insurance. Pursuant to the terms of the settlement, each class member who was insured by the Company on Sept. 1, 2008 will receive a premium credit equal to 100% of the amounts he or she paid for automobile club memberships and deferred billing fees against the premium for a new or renewal automobile insurance policy (as applicable) for up to twelve months of liability or uninsured motorist coverage issued by the Company prior to Dec. 31, 2009, unless he or she elects, prior to Dec. 31, 2008, to receive instead of the premium credit a reimbursement certificate that provides for cash reimbursement of up to a maximum total payment of $50 for any rental or towing expenses incurred by the class member on or before Dec. 31, 2009 as a result of the disablement of his or her vehicle because of an accident. Each class member who was insured by the Company prior to Sept. 1, 2008 will receive a reimbursement certificate that provides for cash reimbursement of up to a maximum total payment of $50 for any rental or towing expenses incurred by the class member on or before Dec. 31, 2009 as a result of the disablement of his or her vehicle because of an accident, unless he or she elects, prior to Dec. 31, 2008, to receive instead of the reimbursement certificate, a premium credit equal to 100% of the amounts he or she paid for automobile club memberships and deferred billing fees against the premium for a new automobile insurance policy for up to twelve months of liability or uninsured motorist coverage issued by the Company prior to June 30, 2010. Any premium credits issued to class members will be prorated over a twelve-month term not to extend beyond June 30, 2011, and the class member will be entitled to the prorated premium credit only so long as he or she keeps their insurance premiums current during the twelve-month term. No benefits will be available to class members until Jan. 1, 2009. The company has also agreed to strengthen its disclosures to customers of all relevant fees, charges and coverages. In addition, the company has agreed to pay $3.8 million in fees and expenses for the attorneys for the Georgia plaintiffs and pay all costs associated with the administration of the settlement. The settlement agreement is subject to approval by the court, and the Company expects the court to hold a hearing to consider the settlement in November 2008. The company has also agreed upon preliminary settlement terms with the plaintiffs in the Alabama litigation. The preliminary settlement terms provide for benefits to the Alabama plaintiffs substantially similar to the benefits to be paid to the Georgia plaintiffs, and a payment of $2.5 million in fees and expenses for the attorneys for the Alabama plaintiffs. The settlement of the Alabama litigation is subject to the negotiation of a definitive settlement agreement and approval of the settlement agreement by the applicable courts. On Nov. 21, 2008, the Superior Court for Fulton County, Georgia approved the settlement of the case styled, "Annette Rush v. Village Auto Insurance Company, Inc. (now known as First Acceptance Insurance Company of Georgia, Inc.)" that was pending in the Superior Court of Fulton County, Georgia. On Dec. 5, 2008, the company entered into a Stipulation and Agreement of Settlement with the plaintiffs in the class action litigation pending against the Company in Alabama. The Circuit Court of Bullock County, Alabama approved the terms of the Alabama settlement. As of Dec. 31, 2008, the plaintiff class in the Georgia litigation included approximately 176,500 members who were insured by the company on or prior to Sept. 1, 2008 that received a reimbursement certificate, approximately 10,000 members who were insured by the company that received the premium credits and approximately 3,900 members who were not actively insured by the company that received the premium credits. Based on the company's analysis of the premium credits available to these members, it has accrued approximately $4.7 million as of Dec. 31, 2008 associated with the estimated utilization of available premium credits for Georgia plaintiffs who were insured by the company on Dec. 31, 2008 and received the premium credits. As of Dec. 31, 2008, the company estimates that the plaintiff class in the Alabama litigation will include approximately 2,300 members who will be insured by the company on March 6, 2009 that will be eligible to receive the premium credits. Based on its analysis of the premium credits available to these members, the company has accrued approximately $0.5 million as of Dec. 31, 2008, associated with the estimated utilization of available premium credits the company believes will be issued to those plaintiffs in the Alabama litigation who will receive the premium credits. The company is in discussions with its insurance carriers regarding coverage for the costs and expenses incurred relating to the litigation settlements. First Acceptance Corp. -- http://www.firstacceptancecorp.com/-- is a retailer, servicer and underwriter of non-standard personal automobile insurance. The Company writes non-standard personal automobile insurance in 12 states and is licensed as an insurer in 13 additional states. Non-standard personal automobile insurance is made available to individuals who are categorized as non-standard because of their inability or unwillingness to obtain standard insurance coverage. The Company owns three insurance company subsidiaries: First Acceptance Insurance Company, Inc. (FAIC), First Acceptance Insurance Company of Georgia, Inc. (FAIC-GA) and First Acceptance Insurance Company of Tennessee, Inc. (FAIC-TN). FIRST MARBLEHEAD: Seeks to Dismiss Consolidated Securities Suit --------------------------------------------------------------- The First Marblehead Corp.'s motion to dismiss a consolidated amended securities fraud class-action lawsuit in the U.S. District Court for the District of Massachusetts is pending. In April 2008, six purported class-action complaints were filed against the company, certain of its current and former officers, and certain of its directors. The plaintiffs allege, among other things, that the defendants made false and misleading statements and failed to disclose material information in various U.S. Securities and Exchange Commission filings, press releases and other public statements. The complaints allege various claims under the U.S. Exchange Act and Rule 10b-5 promulgated thereunder. They seek, among other relief, class certification, unspecified damages, fees and such other relief as the court may deem just and proper. In August 2008, the court consolidated these cases and appointed lead plaintiffs and a lead counsel. On Nov. 28, 2008, a consolidated amended complaint was filed by the lead plaintiffs and contained similar allegations as the earlier complaints. On Feb. 9, 2009, the company filed a motion to dismiss the amended complaint. Plaintiffs opposition to the company's motion to dismiss is due to be filed in April 2009. A class has not been certified in the actions, according to the company's Feb. 9, 2009 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Dec. 31, 2008. The First Marblehead Corp. -- http://www.firstmarblehead.com/-- provides outsourcing services for private education lending in the U.S. It meets the demand for private education loans by providing national and regional financial institutions and educational institutions, as well as businesses, education loan marketers and other enterprises, with an integrated suite of design, implementation and securitization services for student loan programs. The Company is engaged on loan programs for undergraduate, graduate and professional education, and on the primary and secondary school market. The Company is engaged in program design and marketing coordination, borrower inquiry and application, loan origination and disbursement, loan securitization and loan servicing. MICROSOFT CORP: Wash. Court Revokes Class Status in Vista Suit -------------------------------------------------------------- The U.S. District Court for the Western District of Washington decertified a class-action lawsuit filed against Microsoft Corp. for the alleged deceptive promotion of its flagship software, Windows Vista, John Letzing of MarketWatch reports. In an order filed on Feb. 17, 2009, Judge Marsha Pechman wrote that, "At this juncture, the Court believes the most appropriate remedy for Plaintiffs' failure to present evidence suggesting class-wide causation is decertification." Judge Pechman specifically cited a lack of evidence for a "class-wide price inflation theory" put forward by the plaintiffs, according to the MarketWatch report. Judge Pechman allowed the lawsuit to proceed, because Microsoft has not "demonstrated that no material issue of fact exists for Plaintiffs' individual claims." In essence, the ruling forces plaintiffs to pursue their cases individually, reports MarketWatch. Case Background Previously, Joseph Tartakoff of seattlepi.com reported that Microsoft Corp. sought for the dismissal of plaintiffs' claims in a class-action lawsuit, which revolves around the company's marketing before the debut of its Windows Vista operating system in early 2007 (Class Action Reporter, Nov. 24, 2008). The suit, captioned, "Kelley v. Microsoft Corp., Case No. 2:07- cv-00475-MJP," was filed in the U.S. District Court for the Western District of Washington (Class Action Reporter, Oct. 8, 2008). In early 2006, Microsoft executives approved a plan allowing PC makers to designate computers as "Vista Capable" even if they would only be able to run the most basic version of Vista, called "Vista Home Basic," according to seattlepi.com. The plaintiffs in the case claim that through the "Vista Capable" program Microsoft violated the Washington Consumer Protection Act and unjustly enriched itself because the false designation drove up demand for personal computers and, therefore, prices, reports seattlepi.com. As reported in the Class Action Reporter on Feb. 25, 2008, Judge Marsha Pechman granted class-action status to the lawsuit filed against Microsoft over allegations that the company unjustly enriched itself by promoting PCs as "Windows Vista Capable" even if they are not. The slogan was emblazoned on PCs during the 2006 holiday shopping season as part of a campaign by Microsoft to maintain sales of Windows XP computers after the launch of Windows Vista was delayed, according to the CAR report. However, according to seattlepi.com, Judge Pechman did dismissed plaintiffs' claim that Microsoft had deceived consumers into buying PCs they would not otherwise have bought. She instead allowed them to argue that Microsoft had illegally driven up prices. A subsequent CAR report on March 13, 2008, stated that Microsoft appealed against the court's decision affording class action status to the Vista lawsuit. However, in a brief order dated April 21, 2008, the the U.S. Court of Appeals for the Ninth Circuit rejected Microsoft's request to overturn Judge Pechman's decision. In motions that the company filed with court on Nov. 20, 2008, the company rebuts the claims and asks the judge to decertify the class. "Because it is clear that Plaintiffs cannot prove any element of their 'price inflation' theory, Microsoft moves for summary judgment," the company's filing reads. In the filing, which was obtained by seattlepi.com, Microsoft dismissed the plaintiffs' underlying argument that the most basic version of Vista was not Vista because it lacked certain features, including the Aero interface. Microsoft's attorneys wrote, "The fact that Windows Vista Home Basic lacks some features available in premium editions of Windows Vista (as Microsoft always disclosed) shows only that Microsoft properly markets Windows Vista Home Basic as a distinct budget edition." They re-iterated, "Windows Vista Home Basic falls well within the Windows Vista family as a technical matter." In addition, Microsoft lawyers said that plaintiffs -- who have calculated how much money Microsoft generated from the sales of its operating systems on Vista Capable PCs -- had not shown that that revenue was attributable to increased sales of the PCs because of the program, reports seattlepi.com. The suit is "Kelley v. Microsoft Corp., Case No. 2:07-cv-00475- MJP," filed in the U.S. District Court for the Western District of Washington, Judge Marsha J. Pechman, presiding. Representing the plaintiff is: Gordon Tilden Thomas & Cordell, LLP 1001 4th Ave., Ste. 4000, Seattle, WA 98154 Phone: 206-467-6477 Fax: 206-467-6292 Web site: http://www.gordontilden.com/ e-mail: office@gordontilden.com OPENWAVE SYSTEMS: February 27 Final Hearing Set for Settlement -------------------------------------------------------------- The final hearing for the proposed settlement in the matter, "In re: Openwave Systems Securities Litigation (Master File 07-1309 (DLC))," is scheduled for Feb. 27, 2009, according to Openwave Systems, Inc.'s Feb. 9, 2009 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Dec. 31, 2008. The U.S. District Court for the Southern District of New York will hold the hearing on Feb. 27, 2009 at 2:30 p.m. before the Honorable Denise Cote, at the U.S. District Court for the Southern District of New York, 500 Pearl Street, Courtroom 11B, New York, NY 10007 (Class Action Reporter, Dec. 17, 2008). Case Background Initially, between Feb. 21 and March 27, 2007, four substantially similar securities class-action complaints were filed in the U.S. District Court for the Southern District of New York against Openwave and four current and former officers of the company. The complaints purport to be filed on behalf of all persons or entities who purchased Openwave stock from Sept. 30, 2002, through Oct. 26, 2006, and allege that during the class period, the defendants engaged in improper stock options backdating and issued materially false and misleading statements in the company's public filings and press releases regarding the manner in which Openwave granted and accounted for the options. Based on these allegations, the complaints assert two causes of action -- one against all defendants for violation of Section 10(b) of the Exchange Act and Rule 10b-5 promulgated thereunder, and a second against the individual defendants for violation of Section 20(a) of the Exchange Act. On April 25, 2007, the company and the individual defendants filed a joint motion to transfer the actions to the Northern District of California where the related shareholder derivative class actions are pending. On May 18, 2007, the court entered an order consolidating the four securities class action suits into a single action captioned "In re: Openwave Systems Securities Litigation (Master File 07-1309 (DLC))," and appointing a lead plaintiff and lead counsel. On June 29, 2007, the plaintiffs filed a consolidated and amended class action complaint. The consolidated and amended complaint adds 17 additional defendants, including: * several current and former Openwave officers and directors, * KPMG LLP, * Merrill Lynch, * Pierce, Fenner & Smith, Inc., * Lehman Brothers Inc., * J.P. Morgan Securities, Inc., and * Thomas Weisel Partners LLC The consolidated and amended complaint alleges claims for violation of Sections 10(b), 20(a) and 20(A) of the Exchange Act and Rule 10b-5, as well as claims for violation of Sections 11, 12(a)(2) and 15 of the U.S. Securities Act of 1933 arising out of the company's 2005 public offering. It seeks money damages, equitable relief, and attorneys' fees and costs. The company is required under contracts with the individual defendants to indemnify them under certain circumstances for attorneys' fees and expenses. The Arkansas Teacher Retirement System was appointed as lead plaintiff and Bernstein Litowitz Berger & Grossmann LLP as lead counsel for all plaintiffs in the consolidated actions and the class. On Aug. 10, 2007, the defendants filed motions to dismiss the consolidated and amended class action complaint. On Oct. 31, 2007, the court granted the motions to dismiss claims asserted under the Securities Act of 1933 as to all defendants against whom those claims were asserted, and granted the motion to dismiss the U.S. Securities Exchange Act of 1934 claims against certain of the officer and director defendants. However, the motion to dismiss the Exchange claims asserted against Openwave and certain of the other director and officer defendants was denied. As a result of the court's decision, KPMG LLP, Merrill Lynch, Pierce, Fenner & Smith, Lehman Brothers Inc., J.P. Morgan Securities, and Thomas Weisel Partners have all been dismissed as defendants from the consolidated lawsuit. The remaining defendants are the company, certain former officers of the company, and certain former and current directors of the company. The parties commenced discovery with respect to class certification and the merits. On June 23, 2008, the lead plaintiff filed a motion for class certification. On July 18, 2008, the company filed its opposition to the lead plaintiff's motion, and all of the individual defendants joined in that opposition. On Oct. 24, 2008, while the motion for class certification was pending and discovery was ongoing, the lead plaintiff and defendants reached an agreement to settle the action. On Nov. 5, 2008, the court entered a preliminary order approving the settlement. The settlement will be funded in part by insurance and in part by the company. The settlement is subject to court approval (Class Action Reporter, Jan. 16, 2009). Pursuant to the terms of the settlement agreement, on Dec. 5, 2008, the company contributed $5.0 million and the insurance carriers contributed $15.0 million to the settlement fund. This $20.0 million estimated liability was recorded in the fiscal quarter ending June 30, 2008, with a corresponding $15.0 million recorded in Insurance receivable for legal settlement on the consolidated balance sheet, and $5.0 million recorded in Legal settlement costs on the consolidate statement of operations. The suit, "In re: Openwave Systems Securities Litigation (Master File 07-1309 (DLC))," is filed in the U.S. District Court for the Southern District of New York, Judge Denise L. Cote, presiding. Representing the plaintiffs are: Laura Helen Gundersheim, Esq. (Laurag@blbglaw.com) Bernstein Litowitz Berger & Grossmann LLP 1285 Avenue of the Americas New York, NY 10019 Phone: 212-554-1463 Fax: 212-554-1444 - and - Jeffrey Simon Abraham, Esq. (jabraham@aftlaw.com) Abraham Fruchter & Twersky LLP One Penn Plaza, Suite 1910 New York, NY 10119 Phone: 212-279-5050 Fax: 212-279-3655 Representing the defendants are: Marshall Ross King, Esq. (mking@gibsondunn.com) Gibson, Dunn & Crutcher LLP 200 Park Avenue, 48th Floor New York, NY 10166 Phone: 212-351-3905 Fax: 212-351-5243 - and - Andrew W. Stern, Esq. (astern@sidley.com) Sidley Austin LLP 787 Seventh Avenue New York, NY 10019 Phone: 212-839-5300 Fax: 212-839-5599 OPNEXT INC: Consolidated N.J. Securities Fraud Suit Stayed ---------------------------------------------------------- A consolidated securities fraud class-action lawsuit against Opnext, Inc. in the U.S. District Court for the District of New Jersey remains stayed pending the submission of a joint status report on April 30, 2009. On Feb. 20, 2008, a putative class action captioned, "Bixler v. Opnext, Inc., et al. Case No. 3:08-cv-00920," was filed against the company and certain of its directors and officers, alleging, inter alia, that the registration statement and prospectus issued in connection with the company's initial public offering contained material misrepresentations in violation of federal securities laws. On March 7 and 20, 2008, two additional putative class action complaints were filed in the U.S. District Court for the the District of New Jersey, similarly alleging, inter alia, that federal securities laws had been violated by virtue of alleged material misrepresentations in the company's registration statement and prospectus. These two additional complaints, captioned, "Coleman v. Opnext, Inc., et al., Case No. 3:08-cv-01222," and "Johnson v. Opnext, Inc., et al., Case No. 3:08-cv-01451," respectively, named as defendants the company, certain individual defendants, the company's auditor, and the underwriters of the IPO. Motions were filed by several of the company's present and former shareholders seeking: -- to consolidate the "Bixler," "Coleman," and "Johnson" cases; -- to be appointed lead plaintiff; and -- to have their counsel appointed by the Court as lead counsel for the putative class. On May 22, 2008, the court issued an order consolidating the three cases under Civil Action No. 08-920 (JAP). On July 30, 2008, the lead plaintiff filed a consolidated class action complaint with the U.S. District Court for the District of New Jersey. The underwriter defendants filed an answer to the consolidated complaint on Oct. 21, 2008. On Nov. 6, 2008, Opnext's auditor was voluntarily dismissed from the action by plaintiff without prejudice. Hitachi, which was added as a defendant in the Consolidated Complaint, filed a motion to dismiss on Dec. 22, 2008. As of Feb. 9, 2009, the date of this Form 10-Q filing, the Court had not ruled on Hitachi's motion. The parties, save for Hitachi, have agreed to early mediation. In light of that, the court has stayed all proceedings in this matter, including discovery, pending the parties' submitting a joint status report to the court on April 30, 2009, according to the company's Feb. 9, 2009 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarter ended Dec. 31, 2008. The consolidated suit is "Bixler v. Opnext, Inc., et al. Case No. 3:08-cv-00920," filed in the U.S. District Court for the District of New Jersey, Judge Joel A. Pisano, presiding. Representing the plaintiffs are: Laurence M. Rosen, Esq. (lrosen@rosenlegal.com) The Rosen Law Firm, PA 236 Tillou Road South Orange, NJ 07079 Phone: 973-313-1887 - and - Jennifer Sarnelli, Esq. (jsarnelli@ldgrlaw.com) Lite, DePalma, Greenberg & Rivas, LLC Two Gateway Center, 12th Floor Newark, NJ 07102 Phone: 973-632-3000 Fax: 973-923-0858 Representing the defendants are: John M. Falzone, III, Esq. (john.falzone@lw.com) Latham & Watkins, LLP One Newark Center, 16th Floor Newark, NJ 07102 Phone: 973-639-7099 - and - Gary S. Graifman, Esq. (ggraifman@kgglaw.com) Kantrowitz, Goldhamer & Graifman, Esqs. 210 Summit Avenue Montvale, NJ 07645 Phone: 201-391-7000 PRESTIGE BRANDS: Finalizing Proposed Notice of Consolidated Suit ---------------------------------------------------------------- The parties in a consolidated shareholder lawsuit filed against Prestige Brands Holdings, Inc., are in the process of finalizing the proposed notice of the pending class action lawsuit. The first of the six cases that were later consolidated was filed against the company and certain of its officers and directors on Aug. 3, 2005. The cases were filed in the U.S. District Court for the Southern District of New York. The plaintiffs purport to represent a class of stockholders of the company that purchased shares between Feb. 9, 2005, and Nov. 15, 2005. The plaintiffs also named as defendants the underwriters in the company's initial public offering and a private equity fund that was a selling stockholder in the offering. The district court has appointed a lead plaintiff, who, on Dec. 23, 2005, filed a consolidated class action complaint asserting claims under Sections 11, 12(a)(2) and 15 of the U.S. Securities Act of 1933 and Sections 10(b), 20(a), and 20A of the U.S. Securities Exchange Act of 1934. The lead plaintiff generally alleged that the company issued a series of materially false and misleading statements in connection with its initial public offering and thereafter with regard to: -- the accounting issues described in the company's press release issued on or about Nov. 15, 2005; and -- the alleged failure to disclose that demand for certain of the company's products was declining and that the company was planning to withdraw several products from the market. The plaintiffs seek an unspecified amount of damages. Pursuant to the company's request, the court, in a pretrial ruling on July 10, 2006, dismissed claims that the management acted fraudulently. The court also dismissed all claims against the company and the individual defendants arising under the U.S. Securities Exchange Act of 1934. On Sept. 4, 2007, the U.S. District Court for the Southern District of New York certified a class consisting of all persons who purchased the common stock of the company pursuant to, or traceable to, the company's initial public offering on or about Feb. 9, 2005, through Nov. 15, 2005. On Jan. 8, 2008, the parties to the action engaged in mediation to explore the terms of a potential settlement of the pending litigation. However, no settlement agreement was reached during mediation (Class Action Reporter, Sept. 25, 2008). On Jan. 16, 2009, after unsuccessful mediation, the Court ordered that notice of the pending class action lawsuit be sent to all persons who purchased the company's common stock between Feb. 9, 2005 and Nov. 15, 2005 pursuant or traceable to the Company's initial public offering. The parties are in the process of finalizing the proposed notice, according to the company's Feb. 9, 2009 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Dec. 31, 2008. The suit is "In re Prestige Brands Holdings, Inc. Securities Litigation, Case No. 7:05-cv-06924-CLB," filed in the U.S. District Court for the Southern District of New York, Judge Charles L. Brieant presiding. Representing the plaintiffs are: William J. Ban, Esq. (wban@barrack.com) Barrack, Rodos & Bacine Two Commerce Square 2001 Market Street, Suite 3300 Philadelphia, PA 19103 Phone: 215-963-0600 Fax: 215-963-0838 - and - Russell James Gunyan, Esq. (rgunyan@csgrr.com) Coughlin, Stoia, Geller, Rudman & Robbins, LLP 58 South Service Road, Suite 200 Melville, NY 11747 Phone: 631-367-7267 Fax: 631-367-1173 Representing the defendants are: Todd R. David, Esq. (todd.david@alston.com) Alston & Bird, L.L.P. One Atlantic Center, 1201 West Peachtree Street Atlanta, GA 30309-3424 Phone: 404-881-7357 Fax: 404-527-8717 - and - John Gueli, Esq. (jgueli@shearman.com) Shearman & Sterling LLP 599 Lexington Avenue New York, NY 10022 Phone: 212-848-4744 Fax: 212-848-7179 RETROFOAM CANADA: Faces CDN$500M Lawsuit Over Banned Substance -------------------------------------------------------------- RetroFoam Canada has been named in a CDN$500-million class- action lawsuit for distributing insulation containing a banned substance, Tyler Kula of The London Free Press reports. The London Free Press reported that RetroFoam is said to contain urea formaldehyde, a banned substance in Canada for nearly 30 years. Sutts, Strosberg LLP is organizing the lawsuit on behalf of anyone who owned, had an interest in, or occupied a property in which RetroFoam was installed, according to The London Free Press report. Approximately 700 homes in Ontario, including 170 in Lambton and Chatham-Kent, were insulated with RetroFoam within the past 18 months, reports The London Free Press. For more details, visit http://www.retrofoamclassaction.com/. RIGEL PHARMACEUTICALS: Faces Lawsuit Over 2008 Stock Offering ------------------------------------------------------------- Rigel Pharmaceuticals, Inc. faces a purported securities class- action lawsuit in the U.S. District Court for the Northern District of California, according to the company's Current Report on Form 8-K filed with the U.S. Securities and Exchange Commission on Feb. 9, 2009. On Feb. 6, 2009, a purported securities class-action lawsuit was commenced in the U.S. District Court for the Northern District of California, naming as defendants Rigel, Inc., certain of its officers, its directors and the underwriters for the company's February 2008 stock offering. The lawsuit alleges violations of the U.S. Securities Act of 1933 and the U.S. Securities Exchange Act of 1934 in connection with allegedly false and misleading statements made by the defendants related to the results of a Phase II clinical trial of the company's product candidate R788. The plaintiff seeks damages, including rescission or rescissory damages for purchasers in the Stock Offering, an award of its costs and injunctive and/or equitable relief for purchasers of the company's common stock during the period between Dec. 13, 2007 and Oct. 27, 2008, including purchasers in the Stock Offering. Rigel Pharmaceuticals, Inc. -- http://www.rigel.com-- is a clinical-stage drug development company that discovers and develops small molecule drugs for the treatment of inflammatory/ autoimmune diseases, cancer and viral diseases. The company's research focuses on intracellular signalling pathways and related targets that are critical to disease mechanisms. Rigel has collaborations with pharmaceutical partners to develop and market its product candidates. The company has internal product development programs in inflammatory/autoimmune diseases, such as rheumatoid arthritis and thrombocytopenia, and cancer, as well as partnered product development programs relating to asthma and cancer. STANDARD OIL: Gas Stations File Suit For Return of Federal Taxes ---------------------------------------------------------------- Standard Oil of Connecticut faces a purported class-action suit in U.S. District Court for the District of Connecticut that is seeking for the return of federal taxes, Martin B. Cassidy of Greenwich Time reports. The suit was filed by two gas station owners from Stamford and Shelton who alleged that Standard Oil wrongfully included the taxes in the price of gasoline it charged them. In the suit, Michael Faugno, owner of Woodway Texaco in Stamford and Monty Blakeman, owner of Monts Mart in Shelton, claim that, since January 2005, the supplier imposed an 18.4 cent per gallon tax on about 5 million gallons of ethanol-blended gas bought by the two stations, even though a federal tax break reduced the tax to 13.3 cents a gallon for gasoline containing the corn- based additive. According to the suit, "The defendant had actual knowledge that the federal gasoline tax was less than 18.4 cents a gallon, and if it did not have actual knowledge, it should have known the actual amount of taxes due in the exercise of reasonable diligence." The suit seeks damages to reimburse the gas stations the tax they paid, injunctive relief barring Standard from overcharging for fuel, and blocking Standard from operating competing gas stations. The gas station owners are represented by Stamford attorney John Morgan, Esq. of Barr & LaCava. Mr. Morgan told Greenwich Time that the plaintiffs will pursue class-action status, and request a list of other customers from Standard to try to determine whether other station owners also overpaid Standard. They will also request records to determine whether Standard regularly sold gas to its own franchise stations at a lower price and with the appropriate tax credit, Mr. Morgan adds. "The first step is to find out what happened and how many people or stations are involved and who the other parties might be," Mr. Morgan said. For more details, contact: Barr & LaCava Phone: 877-293-6717 Fax: 203-357-8397 Web site: http://www.infolaw.com/ STANFORD GROUP: Faces Securities Fraud Litigation in Texas ---------------------------------------------------------- Stanford Group Co., along with several others, are facing a purported class-action lawsuit in Texas alleging securities fraud, Bill Lodge of 2TheAdvocate reports. Three investors in Texas and a fourth in Oklahoma are seeking class-action status for a multibillion-dollar civil suit in Houston against Baton Rouge promoter Jason Green and others associated with financier R. Allen Stanford. The U.S. Securities and Exchange Commission sued Stanford, two of his associates and three of his companies on Feb. 16, 2009 in Dallas for alleged fraud in the sale of $8 billion in certificates of deposit at a bank on the Caribbean island of Antigua. Other frauds allegedly were tied to the sale of $1 billion in mutual funds, according to 2TheAdvocate report. 2TheAdvocate reported that on Feb. 17, 2009, the investor suit appeared in the U.S. District Court for the Southern District of Texas. It was filed by Jerry Adams, of Stillwell, Okla., who alleged he was misled by Mr. Stanford, Mr. Green and others as to the security of his $600,000 investment. Other plaintiffs in the suit are, Michael Hicks, of Wimberley, Texas, who made similar allegations about his $500,000 nest egg; and Houston residents Milton Jerald Edrington ($400,000) and Ben Gomez ($250,000). The plaintiffs are asking Judge Vanessa D. Gilmore to declare their suit a class-action case, reports 2TheAdvocate. The suit named several entities as defendants: -- Stanford Group Co., -- Stanford Financial Group, -- Stanford International Bank, LTD, -- Stanford Holding, Inc., -- Stanford Capital Management, LLC, -- R. Allen Stanford, -- James Davis, -- Laura Pendergest-Holt, -- Jay Comeaux, -- Jason Green, and -- Ben Gomez. The suit alleges Stanford used "impressive, but fictitious, performance results" to entice investors to place their money with his programs, 2TheAdvocate reported. The suit is "Adams et al. v. Stanford Group Company et al., Case No. 4:09-cv-00474," filed in the U.S. District Court for the Southern District of Texas, Judge Vanessa D. Gilmore, presiding. Representing the plaintiffs is: George M. Fleming, Esq. (george_fleming@fleming-law.com) Fleming & Associates 1330 Post Oak Blvd Ste. 3030 Houston, TX 77056 Phone: 713-621-7944 Fax: 713-621-9638 STATE FARM: Faces Tex. Suit Over Business Interruption Proceeds --------------------------------------------------------------- State Farm Lloyds faces a purported class-action suit by Orange County business owners who are claiming that the insurance company stiffed them on business interruption proceeds in the weeks following Hurricane Ike, David Yates of the Southeast Texas Record reports. The suit was filed by Marcia Delarue filed on Feb. 10, 2009 in Orange County District Court, under case no. A090075. Court document obtained by the Southeast Texas Record show that Ms. Delarue's business was covered by a State Farm insurance policy, which offered loss of income proceeds if her business was interrupted. According to the suit, "On Sept. 13, 2008, Hurricane Ike roared ashore inflicting severe damage along the Texas Gulf Coast. In the process, Ike damages the property where Delarue's law office is located," reports the Southeast Texas Record. Ms. Delarue states in her suit that due to the amount of damage and lack of basic services in Orange County, it took 68 days to restore her business. The suit states, "Delarue's office was not repaired, (and) her computer systems … including an internet connection … were not fully operational until Nov. 28, 2008, 68 days after the Orange County mandatory evacuation order was issued." When she submitted her claim for 68 days of lost business, State Farm paid Ms. Delarue "only for the period of time the Orange County mandatory evacuation order was in effect," giving her a total of eight days of payable coverage, according to the suit. The Southeast Texas Record reported that Ms. Delarue alleges State farm's policies "wrongfully shortchange the business interruption insurance payments owed to the thousands of Texas citizens business owners" who have suffered loss of income as a result of Hurricanes Rita, Gustav and/or Ike. She is suing for the 60 remaining days she claims State Farm owes her, injunctive relief, and all court costs. The class is represented by Mitchell Toups, Esq. and other attorneys from the Weller, Green, Toups & Terrell law firm in Beaumont and by the Coffman Law Firm, according to the Southeast Texas Record report. New Securities Fraud Cases COLONIAL BANCGROUP: Coughlin Stoia Files Securities Suit in Ala. ---------------------------------------------------------------- Wed, 18 Feb 2009 23:54:33 GMT -- SAN DIEGO -- (Business Wire) Coughlin Stoia Geller Rudman & Robbins LLP ("Coughlin Stoia") (http://www.csgrr.com/cases/colonial/)today announced that a class action has been commenced in the United States District Court for the Middle District of Alabama on behalf of purchasers of The Colonial BancGroup, Inc. ("Colonial") (NYSE:CNB) common stock during the period between January 23, 2008 and January 27, 2009 (the "Class Period"). The complaint charges Colonial and certain of its officers and directors with violations of the Securities Exchange Act of 1934. Colonial operates as the holding company for Colonial Bank, National Association, which provides commercial banking, wealth management services, mortgage banking, and insurance services in Florida, Alabama, Georgia, Nevada and Texas. The complaint alleges that during the Class Period, defendants issued materially false and misleading statements regarding the Company's business and financial results, and concealed the Company's failure to properly account for its troubled loan portfolio and goodwill. As a result of defendants' false statements, Colonial's stock traded at artificially inflated prices during the Class Period, reaching a high of $16.06 per share in February 2008. On January 27, 2009, after the market closed, the Company announced its fourth quarter and full year 2008 financial results, including a net loss of $825 million for the quarter due, in substantial part, to a $575 million goodwill impairment charge, a $415 million charge to write off troubled assets and an increase to its loan loss reserve. Colonial further disclosed that its receipt of funds from the U.S. Treasury's Capital Purchase Program was conditioned upon the Company raising an additional $300 million in equity. On this news, Colonial's stock dropped from $1.58 per share on January 27, 2009 to $0.85 per share on January 28, 2009, a one-day decline of over 46% on unusually large volume. According to the complaint, the true facts, which were known by the defendants but concealed from the investing public during the Class Period, were as follows: -- the Company was failing to adequately reserve for mortgage-related exposure, causing its balance sheet and financial results to be artificially inflated; -- the Company was failing to write down impaired goodwill, causing its balance sheet and financial results to be artificially inflated; -- the Company's internal controls were inadequate to prevent the Company from improperly reporting its loan reserves and goodwill; -- the Company's exposure to troubled assets was not isolated to its residential construction portfolio, but extended to its other loan portfolios, including its commercial construction portfolio; -- the Company's exposure to the problems in the real estate market had not been limited by the actions the Company had taken in 2006; -- the Company's capital base was not adequate enough to withstand the significant deterioration in the real estate market and, as a result, Colonial would be forced to suspend its dividend and raise additional capital, including seeking assistance from the U.S. Government; -- given the increased volatility in the real estate market, the Company had no reasonable basis to make projections about its non-performing assets, its net charge-offs and its ability to liquidate its troubled loan portfolio, and, as a result, the Company's projections issued during the Class Period about its results for 2008 were at a minimum reckless; and -- the U.S. Government's approval to provide Colonial with $550 million in funding as announced on December 2, 2008 was conditioned upon Colonial raising an additional $300 million in capital from outside sources. Plaintiff seeks to recover damages on behalf of all purchasers of Colonial common stock during the Class Period (the "Class"). For more details, contact: Darren Robbins, Esq. (djr@csgrr.com) Coughlin Stoia Geller Rudman & Robbins LLP Phone: 800-449-4900 or 619-231-1058 Web site: http://www.csgrr.com/cases/colonial/ CUSHING MLP: Brower Piven Announces Securities Fraud Suit Filing ---------------------------------------------------------------- Wed, 18 Feb 2009 21:29:17 GMT -- BALTIMORE, MD -- 02/18/09 -- Brower Piven, A Professional Corporation announces that a class action lawsuit has been commenced in the United States District Court for the Northern District of Texas on behalf of all persons who purchased the shares of Cushing MLP Total Return Fund (the "Fund") (NYSE: SRV) during the period between September 1, 2008 and December 19, 2008, inclusive (the "Class Period"). The complaint accuses Swank Energy Income Advisors, LP, Swank Capital LLC, Jerry V. Swank, Mark W. Fordyce, CPA, Brian R. Bruce, Ronald P. Trout and Edward N. McMillan of violations of the Securities Exchange Act of 1934 and the Investment Company Act of 1940 by virtue of the Company's failure to disclose during the Class Period that the full value of a $49.1 million deferred tax asset was included in the Fund's stated net asset value without establishing an appropriate valuation reserve against the risk that the Fund could or would never utilize or recognize the deferred tax asset. According to the complaint, on December 19, 2008, when the Fund wrote down the value of the $49.1 million deferred tax asset to zero, the value of the Fund's shares declined significantly. No class has yet been certified in the above action. For more details, contact: Charles J. Piven, Esq. (hoffman@browerpiven.com) Brower Piven The World Trade Center-Baltimore 401 East Pratt Street, Suite 2525 Baltimore, Maryland 21202 Phone: 410/332-0030 Web site: http://www.browerpiven.com ING GROEP: Wolf Haldenstein Files Securities Fraud Suit in N.Y. --------------------------------------------------------------- Wed, 18 Feb 2009 16:34:34 GMT -- NEW YORK -- (Business Wire) On February 17, 2009, Wolf Haldenstein Adler Freeman & Herz LLP filed a class action lawsuit in the United States District Court, Southern District of New York, on behalf of all persons who acquired the 7.375% ING Perpetual Hybrid Capital Securities (the "Securities") of ING Groep N.V. ("ING" or the "Company") [NYSE:IDG] pursuant to a registration statement and September 2007 Prospectus (as defined in the Complaint, collectively, as the "Offering Documents") issued in connection with the Company's September 2007 offering of the Securities (the "Offering") against ING, its senior insiders, the investment banks that underwrote the Offering and ING's auditor pursuant to §§11, 12(a)(2) and 15 of the Securities Act of 1933 [15 U.S.C. §§77k, 77l(a)(2) and 77o] (the "Class"). The case name is styled, "Harold H. Powell Trust v. ING Groep N.V., et al." As detailed in the Complaint, ING sold the Securities at $25 per share for proceeds of approximately $1.5 billion. The Offering Documents incorporated ING's financial results for 2005 and 2006 as well as quarterly reports through September 2007. The Complaint alleges that the Offering Documents, however, omitted material information, namely, that: -- Defendants' assets, including loans and mortgage- related securities, were impaired to a much larger extent than the Company had disclosed; -- Defendants failed to properly record losses for impaired assets; -- the Company's internal controls were inadequate to prevent the Company from improperly reporting the value of its assets; and -- ING was not as well capitalized as represented, and, notwithstanding the billions of dollars raised in the Offering, the Company would have to raise an additional EUR10 billion by selling equity in the Company to the Dutch government in order to prevent ING's total collapse. After the Offering, ING announced EUR2 billion in impairment charges associated with its exposure to bad loans, mortgage-related securities and other "pressurized" assets, causing the price of the Securities issued in the Offering to decline. As a result of the dissemination of the false and misleading statements set forth in the complaint, the market price of the Securities was artificially inflated during the Class Period. In ignorance of the false and misleading nature of the statements described in the complaint, plaintiff and the other members of the Class relied, to their detriment, on the integrity of the market price of the Securities. Had plaintiff and the other members of the Class known the truth, they would not have purchased said Securities, or would not have purchased them at the inflated prices that were paid. For more details, contact: Mark C. Rifkin, Esq. Wolf Haldenstein Adler Freeman & Herz LLP 270 Madison Avenue New York, New York 10016 Phone: 800-575-0735 e-mail: classmember@whafh.com Web site: http://www.whafh.com INTREPID POTASH: Glancy Binkow Files Colo. Securities Fraud Suit ---------------------------------------------------------------- LOS ANGELES, Feb 18, 2009 (GlobeNewswire via COMTEX) -- Notice is hereby given that Glancy Binkow & Goldberg LLP has filed a class action lawsuit in the United States District Court for the District of Colorado on behalf of a class consisting of all persons or entities who purchased or otherwise acquired the securities of Intrepid Potash, Inc. ("Intrepid Potash" or the "Company") pursuant and/or traceable to the Company's Initial Public Offering (the "IPO") on April 21, 2008 (the "Class"). The Complaint charges Intrepid Potash, as well as a current and a former executive officer of the Company with violations of federal securities laws. Intrepid Potash engages in the production and marketing of muriate of potash in the United States. The Complaint alleges that the Prospectus and Registration Statement (collectively the "Registration Statement") filed with the United States Securities and Exchange Commission in connection with the Company's IPO, contained false and misleading statements and failed to disclose or indicate the following: -- that the Company's President and Chief Operating Officer ("COO") had not received a B.A. degree from the University of Colorado or a M.S. degree from Loyola Marymount University, as represented in the Registration Statement; and -- that the Company's President and COO had misrepresented his academic credentials in violation of the Company's Code of Business Conduct. On February 11, 2009 investors were shocked by a report on the market issued by the Fraud Discovery Institute revealing that the Company's President and COO had affirmatively lied and misrepresented his educational qualifications in the Registration Statement issued in connection with Intrepid Potash's IPO. In response to this news, shares of the Company's stock declined $1.52 per share to close at $22.00 per share on February 11, 2009. This closing price on Intrepid Potash represented a cumulative loss of $10.00, approximately 31.25%, of the value of the Company's shares at the time of its IPO just months earlier. After the market closed on February 11, 2009, Intrepid Potash issued a press release disclosing that the Company's President and COO was resigning and confirmed that the statements contained in the Company's Registration Statement about the educational qualifications of the Company's President and COO were false and that the "misrepresentation of his academic credentials was a violation under the Company's Code of Business Conduct." For more details, contact: Michael Goldberg, Esq. Richard A. Maniskas, Esq. Glancy Binkow & Goldberg LLP Los Angeles, CA Phone: (310) 201-9150 or (888) 773-9224 e-mail: info@glancylaw.com Web site: http://www.glancylaw.com WASHINGTON MUTUAL: Law Firms File Securities Fraud Litigation -------------------------------------------------------------- NEW YORK, Feb. 18, 2009 (GLOBE NEWSWIRE) -- The following statement was issued today by the law firms of Labaton Sucharow LLP and Barroway Topaz Kessler Meltzer & Check, LLP: On August 4, 2008, Plaintiffs New Orleans Employees' Retirement System and MARTA/ATU Local 732 Employers Retirement Plan ("Plaintiffs"), institutional investors represented in the case by Labaton Sucharow and Barroway Topaz Kessler Meltzer & Check, filed a Complaint in the King County Superior Court for the State of Washington alleging violations of the federal securities laws by Washington Mutual, Inc., Washington Mutual Bank, WaMu Asset Acceptance Corp., Washington Mutual Mortgage Securities Corp., WaMu Capital Corp., and certain Individual Defendants (No. 08-2-26210-3 SEA). The Complaint was filed on behalf of all purchasers of WaMu Mortgage Pass-Through Certificates (the "Certificates") between January 26, 2006 and November 1, 2007 (the "Class Period") that were issued pursuant and/or traceable to a Registration Statement that WaMu Asset Acceptance Corp. filed with the Securities and Exchange Commission on December 30, 2005, as supplemented on January 3, 2006 (collectively: the "Registration Statement"). The Certificates at issue in the Complaint are related to the following Trusts: WaMu Mortgage Pass-Through Certificates Series 2006-AR1 through Series 2006-AR19 and WaMu Mortgage Pass- Through Certificates Series 2007-HY1 through Series 2007-HY7. On September 25, 2008, the Office of Thrift Supervision declared Washington Mutual Bank insolvent and appointed the Federal Deposit Insurance Corporation ("FDIC") as its Receiver, and on September 26, 2008, Washington Mutual Inc. filed a voluntary petition for Chapter 11 bankruptcy protection in U.S. Bankruptcy Court in Delaware. On December 16, 2008, Plaintiffs filed an Amended Complaint in King County Superior Court that excluded Washington Mutual Inc. as a defendant in the case, but retained the allegations from the initial Complaint against all other defendants. On January 29, 2009, the FDIC, as Receiver for Washington Mutual Bank, filed a Notice of Removal, removing Plaintiffs' case from the King County Superior Court to the United States District Court for the Western District of Washington. The action is now entitled New Orleans Employees' Retirement System v. Federal Deposit Insurance Corporation, as Receiver for Washington Mutual Bank, et al. (No. 2:09-cv-00134-RSM). On January 12, 2009, the Boilermakers National Annuity Trust Fund ("Boilermakers") filed a Complaint alleging violations of the federal securities laws against Washington Mutual Bank and other defendants, on behalf of all purchasers of Certificates from certain of the above identified Trusts in the United States District Court for the Western District of Washington (No. 2:09-00037-MJP). On January 14, 2009, the Boilermakers published notice of their action to investors, which provided a deadline to seek Lead Plaintiff status in that case by March 16, 2009. For more details, contact: Alan I. Ellman, Esq. Labaton Sucharow LLP 140 Broadway New York, NY 10005 Phone: (888) 753-2796 or (212) 907-0700 e-mail: info@labaton.com - and - Darren J. Check, Esq. Barroway Topaz Kessler Meltzer & Check, LLP 280 King of Prussia Road Radnor, PA 19087 Phone: (888) 299-7706 or (610) 667-7706 e-mail: info@btkmc.com Asbestos Alerts ASBESTOS LITIGATION: Tennessee Valley Has $8M Accretion Expense ---------------------------------------------------------------- Tennessee Valley Authority, during the first quarter of fiscal 2009, recorded a remaining accretion expense of US$8 million related to coal-fired and gas/oil combustion turbine plants, asbestos, and polychlorinated biphenyls (PCBs). During the first quarter of 2009, the Company's total asset retirement obligation (ARO) liability increased US$32 million due to accretion. The nuclear accretion expense of US$24 million was deferred and charged to a regulatory asset. During the first quarter of 2008, the Company's total ARO liability increased US$30 million due to accretion. The nuclear accretion expense of US$23 million was deferred and charged to a regulatory asset. The remaining accretion expense of US$7 million, related to coal-fired and gas/oil combustion turbine plants, asbestos, and PCBs, was expensed during the first quarter of 2008. Headquartered in Knoxville, Tenn., Tennessee Valley Authority is a publicly owned power producer in the United States, with more than 35,000 MW of generating capacity. Its facilities include 11 fossil-powered plants, 29 hydroelectric dams, three nuclear plants, and six combustion turbine plants. ASBESTOS LITIGATION: Hartford Fin'l. Involved in Insurance Cases ---------------------------------------------------------------- Like many other insurers, The Hartford Financial Services Group, Inc. has been joined in actions by asbestos plaintiffs, according to the Company's annual report filed with the Securities and Exchange Commission on Feb. 12, 2009. The lawsuits assert that insurers had a duty to protect the public from the dangers of asbestos and that insurers committed unfair trade practices by asserting defenses on behalf of their policyholders in the underlying asbestos cases. The Hartford Financial Services Group, Inc. offers personal and commercial insurance products, including homeowners, auto, and workers' compensation. Since 1810, the Company sells its products through about 11,000 independent agencies and more than 100,000 registered broker-dealers. The Company is headquartered in Hartford, Conn. ASBESTOS LITIGATION: EnPro Ind. Has $380.2M Liability at Dec. 31 ---------------------------------------------------------------- EnPro Industries, Inc.'s long-term asbestos liability amounted to US$380.2 million as of Dec. 31, 2008, compared with US$437.5 million as of Dec. 31, 2007, according to a Company press release dated Feb. 12, 2009. Current asbestos liability amounted to US$85.3 million as of Dec. 31, 2008, compared with US$86.9 million as of Dec. 31, 2007. The Company's long-term asbestos insurance receivable amounted to US$239.5 million as of Dec. 31, 2008, compared with US$311.5 million as of Dec. 31, 2007. Current asbestos insurance receivable amounted to US$67.9 million as of Dec. 31, 2008, compared with US$70 million as of Dec. 31, 2007. Asbestos-related expenses amounted to US$14.8 million during the quarter ended Dec. 31, 2008, compared with US$30.9 million during the quarter ended Dec. 31, 2007. Asbestos-related expenses amounted to US$52.1 million during the year ended Dec. 31, 2008, compared with US$68.4 million during the year ended Dec. 31, 2007. Headquartered in Charlotte, N.C., EnPro Industries, Inc. produces sealing products, metal polymer and filament wound bearings, compressor systems and components, diesel and dual- fuel engines and other engineered products for use in critical applications by industries worldwide. ASBESTOS LITIGATION: GenCorp Faces 157 Pending Claims at Nov. 30 ---------------------------------------------------------------- GenCorp Inc. faced 157 pending asbestos-related claims during the year ended Nov. 30, 2008, compared with 160 claims during the year ended Nov. 30, 2007, according to the Company's annual report filed with the Securities and Exchange Commission on Feb. 12, 2009. The Company has been, and continues to be, named as a defendant in lawsuits alleging personal injury or death due to exposure to asbestos in building materials, products, or in manufacturing operations. Most of the cases have been filed in Madison County, Ill., and San Francisco. Since 1998, more than 200 of these asbestos lawsuits have been resolved with the majority being dismissed. During the year ended Nov. 30, 2008, the Company recorded 33 claims filed, 31 claims dismissed, and five claims settled. Aggregate settlement costs were US$246,000 and average settlement costs were US$49,000. During the year ended Nov. 30, 2007, the Company recorded 57 claims filed, 43 claims dismissed, and eight claims settled. Aggregate settlement costs were US$72,000 and average settlement costs were US$9,000. Legal and administrative fees for the asbestos cases were US$500,000 for fiscal year 2008, US$900,000 for fiscal year 2007, and US$500,000 for fiscal year 2006. Headquartered in Rancho Cordova, Calif., GenCorp Inc. manufactures aerospace and defense systems with a real estate segment that includes activities related to the entitlement, sale, and leasing of the Company's excess real estate assets. ASBESTOS LITIGATION: BorgWarner Facing 27,000 Claims at Dec. 31 ---------------------------------------------------------------- BorgWarner Inc. faced about 27,000 pending asbestos-related product liability claims as of Dec. 31, 2008, compared with 42,000 as of Dec. 31, 2008, according to the Company's quarterly report filed with the Securities and Exchange Commission on Feb. 12, 2008. Of the 27,000 outstanding claims at Dec. 31, 2008, about 16,000 are pending in three jurisdictions, where significant tort and judicial reform activities are underway. The Company (or parties it is obligated to indemnify) continues to be named as one of many defendants in asbestos-related personal injury actions. The Company said it believes that its involvement is limited because, in general, these claims relate to a few types of automotive friction products that were manufactured many years ago and contained encapsulated asbestos. In 2008, of about 17,500 claims resolved, 210 claims (1.2 percent) resulted in any payment being made to a claimant by or on behalf of the Company. In 2007, of about 4,400 claims resolved, 194 claims (4.4 percent) resulted in any payment being made to a claimant by or on behalf of the Company. Prior to June 2004, the settlement and defense costs associated with all claims were covered by the Company's primary layer insurance coverage, and these carriers administered, defended, settled and paid all claims under a funding arrangement. In June 2004, primary layer insurance carriers notified the Company of the alleged exhaustion of their policy limits. This led the Company to access the next available layer of insurance coverage. Since June 2004, secondary layer insurers have paid asbestos- related litigation defense and settlement expenses under a funding arrangement. To date, the Company has paid US$50.1 million in defense and indemnity in advance of insurers' reimbursement and has received US$14.2 million in cash from insurers. The outstanding balance of US$35.9 million is expected to be fully recovered. Timing of the recovery is dependent on the final resolution of a declaratory judgment action. At Dec. 31, 2007, insurers owed US$20.6 million in association with these claims. At Dec. 31, 2008, the Company has an estimated liability of US$34.7 million for future claims resolutions, with a related asset of US$34.7 million to recognize the insurance proceeds receivable by the Company for estimated losses related to claims that have yet to be resolved. Insurance carrier reimbursement of 100 percent is expected based on the Company's experience, its insurance contracts and decisions received to date in the declaratory judgment action. At Dec. 31, 2007, the comparable value of the insurance receivable and accrued liability was US$39.6 million. Headquartered in Auburn Hills, Mich., BorgWarner Inc. supplies automotive systems and components, primarily for powertrain applications. Products are manufactured and sold worldwide, primarily to original equipment manufacturers (OEMs) of light- vehicles (passenger cars, sport-utility vehicles, vans and light-trucks). The Company's products are also sold to other OEMs of commercial trucks, buses and agricultural and off- highway vehicles. ASBESTOS LITIGATION: CNA Coverage Lawsuit Ongoing v. BorgWarner ---------------------------------------------------------------- BorgWarner Inc. continues to be a defendant in an asbestos- related declaratory judgment action brought by Continental Casualty Company and related companies (CNA). The suit was filed in January 2004 in the Circuit Court of Cook County, Ill., against the Company and certain of its other historical general liability insurers. CNA provided the Company with both primary and additional layer insurance, and, in conjunction with other insurers, is currently defending and indemnifying the Company in its pending asbestos- related product liability claims. The lawsuit seeks to determine the extent of insurance coverage available to the Company including whether the available limits exhaust on a "per occurrence" or an "aggregate" basis, and to determine how the applicable coverage responsibilities should be apportioned. On Aug. 15, 2005, the Court issued an interim order regarding the apportionment matter. The interim order has the effect of making insurers responsible for all defense and settlement costs pro rata to time-on-the-risk, with the pro-ration method to hold the insured harmless for periods of bankrupt or unavailable coverage. Appeals of the interim order were denied. However, the issue is reserved for appellate review at the end of the action. In addition to the primary insurance available for asbestos- related claims, the Company has substantial additional layers of insurance available for potential future asbestos-related product claims. Headquartered in Auburn Hills, Mich., BorgWarner Inc. supplies automotive systems and components, primarily for powertrain applications. Products are manufactured and sold worldwide, primarily to original equipment manufacturers (OEMs) of light- vehicles (passenger cars, sport-utility vehicles, vans and light-trucks). The Company's products are also sold to other OEMs of commercial trucks, buses and agricultural and off- highway vehicles. ASBESTOS LITIGATION: Illegal Dumping Found in Cooma, Australia ---------------------------------------------------------------- The Cooma-Monaro Shire Council says illegally dumped asbestos has been discovered in commercial rubbish bins in and around the town of Cooma, New South Wales, Australia, ABC News reports. Jeff Tate, the Council's resource and waste officer, says he believes it is coming from a house renovation in the area. He says asbestos poses a serious threat to anyone who comes near it. Mr. Tate added, "Asbestos that isn't correctly packed or handled becomes a hazard especially for the guys that are emptying the skips and removing it to the landfill." ASBESTOS LITIGATION: 3 Reading Locals' Deaths Linked to Exposure ---------------------------------------------------------------- Inquests heard that the deaths of three tradesmen from Reading, England, were linked to exposure to asbestos, the Reading Evening Post reports. On Feb. 10, 2009, Berkshire coroner Peter Bedford confirmed that Joe Flurry, Victor Smith, and Brian Pasmore all died as a result of asbestos-related cancer mesothelioma. Mr. Bedford said, "I am dealing with cases like these all too frequently, which shows how prevalent this awful disease is." Mr. Flurry, a 65-year-old plumber from Tilehurst, died at Royal Berkshire Hospital (RBH) on Nov. 10, 2008, after suffering a tumor in his right lung. The inquest heard how Mr. Flurry had worked for various companies dating back to the 1960s and would often come home covered in the deadly dust. He had also reported sawing and drilling through asbestos guttering and pipe work for water tanks. In a statement before his death, Mr. Flurry said he had "clear recollections of asbestos dust flying everywhere as he was drilling things." Consultant pathologist Dr. Colin McCormick's post mortem examination at RBH confirmed the primary cause of death was a pulmonary embolism due to deep vein thrombosis resulting from a malignant mesothelioma. Mr. Pasmore left school in 1968 to work as a carpenter and joiner. He spent years doing maintenance and repair jobs in the Berkshire area, including building fume cabinets out of the harmful substance for a science complex. Before he died, Mr. Pasmore said he had not been given any safety equipment while working with the substance and was not made aware of the dangers. Symptoms of malignant mesothelioma did not emerge until 2003, after the 55-year-old Mr. Pasmore was treated for pneumonia. He underwent two successful spells of chemotherapy and radiotherapy but his condition deteriorated in 2007 after suffering a relapse, and he died in the Duchess of Kent House in Liebenrood Road on Nov. 1, 2008. However, toolmaker Mr. Smith's case was less clear-cut as there was no evidence he had any exposure to asbestos. Mr. Smith died at RBH on Sept. 20, 2008, three months after being diagnosed with mesothelioma. The 83-year-old worked as a toolmaker for a refrigeration company in Sussex during the war years and then moved on to making fiberglass moulds for boats. Mr. Smith went to his doctor at Tudor House surgery in Wokingham in June 2008 complaining of shortness of breath and pneumonia, and tests revealed a tumor on his right chest wall. A post mortem examination confirmed the cause of death was bronchial pneumonia caused by mesothelioma. ASBESTOS LITIGATION: U.K. Deal Reached to Aid Plaques Sufferers ---------------------------------------------------------------- A deal has been reached to allow pleural plaques victims to get compensation, the Western Mail reports. Pleural plaques, which is thickening of scar tissue on the lungs, affects thousands of former workers in workplaces from power stations to shipyards. Members of Parliament and trade unions have been pressing for the decision to be reversed ever since, and the Scottish Executive has already introduced a new compensation scheme. On Feb. 11, 2009, Prime Minister Gordon Brown said, "It's very important we get a resolution. The Secretary for Justice [Jack Straw] has been looking at this matter and talking with his colleagues right across government about the implications of what we can do and I can assure you there will be an announcement very soon." In October 2007, the House of Lords ruled that the disease should no longer qualify for compensation from the United Kingdom Government. ASBESTOS LITIGATION: Oakes Plant Manager Death Linked to Hazard ---------------------------------------------------------------- An inquest heard that the death of Wilfred Swift, a former power station manager from Oakes, Huddersfield, England, was linked to exposure to asbestos, The Huddersfield Daily Examiner reports. The 84-year-old Mr. Swift started his career as an electrical fitter, later working his way up to becoming manager of a power station. The inquest heard that throughout his career, Mr. Swift was exposed to asbestos and protective clothing had not been available. Mr. Swift began to feel unwell late in 2008 and a biopsy confirmed that he was suffering from acute mesothelioma. He was admitted into Kirkwood Hospice, Dalton, but his condition quickly deteriorated and he died there on Nov. 27, 2008. Coroner Roger Whittaker said a claim had been settled on Mr. Swift's behalf, just before he died. Mr. Whittaker recorded that Mr. Swift died as a result of an industrial disease. He said, "Having viewed Mr. Swift's work history and the fact that a claim was settled, there is a direct link to his exposure to asbestos in the workplace and his cause of death. Throughout his employment no protective clothing had been made available." ASBESTOS LITIGATION: Hammersmith Locals Cite 4 Cases in 3 Months ---------------------------------------------------------------- Four safety incidents concerning asbestos on an H&F Homes estate were recorded within three months, increasing asbestos fears in Hammersmith, England, the London Informer reports. A resident said recently that, in April 2008, an asbestos water tank from a flat was dumped in the bulk refuse area nearby. He said a caretaker was told to move it by his manager but fearing for his health, he refused. In May 2008, an asbestos tank was left in the bin room of Desborough House for at least seven weeks, despite a caretaker having informed his manager. In June 2008, there were two further incidents. A smashed asbestos tank was found in a communal dustbin outside Churchward and Fairburn House. Days later, a tank was dragged from a flat in Fairburn House leaving a clear trail across the road to Ivatt Place, where it was dumped inside the building. Fairburn House resident Charlie Treloggan said he thinks that more should be done to warn people. He said, "I think it's a disgrace. Leaseholders should tell their tenants, or they might start breaking up the water tanks and end up with asbestosis." An H&F Homes spokesman said, "We are aware there is asbestos present in Desborough House, as there is in almost every building in the country built around the same time, and it poses no danger to residents unless it is in an exposed condition or disturbed. "We have a robust asbestos management plan in place and carry out regular inspections of the communal areas." ASBESTOS LITIGATION: Celanese Units Facing 559 Cases as of Dec. ---------------------------------------------------------------- Celanese Ltd. and CNA Holdings, Inc., as of December 2008, faced 559 asbestos-related cases, according to parent company Celanese Corporation's annual report filed with the Securities and Exchange Commission on Feb. 13, 2009. Celanese Ltd. and CNA Holdings, as of June 30, 2008, faced 611 asbestos cases. (Class Action Reporter, Aug. 1, 2008) During the year ended Dec. 31, 2008, 66 new cases were filed against the Company, 137 cases were resolved, and four cases were added after further analysis by outside counsel. Because many of these cases involve numerous plaintiffs, the Company is subject to claims significantly in excess of the number of actual cases. The Company has reserves for defense costs related to claims arising from these matters. Headquartered in Dallas, Celanese Corporation produces chemicals and advanced materials. The Company produces acetyl products, which are intermediate chemicals for nearly all major industries, and produces high performance engineered polymers that are used in a variety of high-value end-use applications. ASBESTOS LITIGATION: Burlington Facing 1,833 Claims at Dec. 31 ---------------------------------------------------------------- Burlington Northern Santa Fe Corporation faced 1,833 asbestos- related claims at Dec. 31, 2008, compared with 1,781 claims at Dec. 31, 2007, according to the Company's annual report filed with the Securities and Exchange Commission on Feb. 13, 2009. The Company faced 1,860 asserted asbestos-related claims at Sept. 30, 2008, compared with 1,903 claims at Sept. 30, 2007. (Class Action Reporter, Oct. 31, 2008) At Dec. 31, 2008, the Company recorded 494 claims filed and 442 claims settled, dismissed, or otherwise resolved. At Dec. 31, 2007, the Company recorded 376 claims filed and 570 claims settled, dismissed, or otherwise resolved. The Company is party to a number of personal injury claims by employees and non-employees who may have been exposed to asbestos. The heaviest exposure for Company employees was due to work conducted in and around the use of steam locomotive engines that were phased out between the years of 1950 and 1967. However, other types of exposures, including exposure from locomotive component parts and building materials, continued after 1967 until they were substantially eliminated at the Company by 1985. The Company's accrued obligations for both asserted and unasserted asbestos matters were US$251 million at Dec. 31, 2008, compared with US$270 million at Dec. 31, 2007. Of the obligation at Dec. 31, 2008, US$208 million was related to unasserted claims while US$43 million was related to asserted claims. At both Dec. 31, 2008 and 2007, US$17 million was included in current liabilities. Because of the uncertainty surrounding the factors used in the study, it is reasonably possible that future costs to settle asbestos claims may range from about US$230 million to US$275 million. However, the Company said it believes that the US$251 million recorded at Dec. 31, 2008, is the best estimate of the Company's future obligation for the settlement of asbestos claims. Headquartered in Fort Worth, Tex., Burlington Northern Santa Fe Corporation is a holding company. Through its subsidiaries, the Company engages in the freight rail transportation business. At Dec. 31, 2008, the Company and its subsidiaries had about 40,000 employees. ASBESTOS LITIGATION: ABB Cites $25M Payment for Former Operation ---------------------------------------------------------------- ABB Ltd. says that discontinued operations results reflect the net accrual of the last two asbestos payments of US$25 million each, which are due in 2010 and 2011, according to a Company report, on Form 6-K, filed with the Securities and Exchange Commission on Feb. 13, 2009. The Company expects its EBIT (earnings before interest and taxes) margin to exceed nine percent in 2009 and 9.5 percent in 2010. Cash flow from operations in the fourth quarter amounted to US$1.4 billion, roughly the same as a year earlier. Included in fourth-quarter cash from operations is the outflow of US$25 million paid as part of the Company's asbestos agreement. For the full year, cash flow from operations increased to US$4 billion, reflecting higher earnings and improved net working capital management. Full-year cash flow from operations included asbestos-related payments of US$100 million. Headquartered in Zurich, Switzerland ABB Ltd provides power and automation technologies to utility, industrial, and commercial customers. Power products include transmission and distribution components and turnkey substation systems. Automation technologies are used to monitor and control equipment and processes in industrial plants and utilities. ASBESTOS LITIGATION: Honeywell Records $125M Charges at Dec. 31 ---------------------------------------------------------------- Honeywell International Inc. recorded US$125 million in asbestos-related charges, net of insurance, during the year ended Dec. 31, 2008, compared with US$100 million during the year ended Dec. 31, 2007. In 2009, the Company expects cash spending for asbestos claims to be about US$171 million and its cash receipts for related insurance recoveries to be about US$4 million. Headquartered in Morris Township, N.J., Honeywell International Inc. is a diversified technology and manufacturing company. The Company serves customers with aerospace products and services, control, sensing and security technologies for buildings, homes and industry, turbochargers, automotive products, specialty chemicals, electronic and advanced materials, and process technology for refining and petrochemicals and energy efficient products and solutions for homes, business and transportation. ASBESTOS LITIGATION: Honeywell Has $1.538B Liability at Dec. 31 ---------------------------------------------------------------- Honeywell International Inc.'s long-term asbestos-related liabilities were US$1.538 billion as of Dec. 31, 2008, compared with US$1.405 billion as of Dec. 31, 2007, according to the Company's annual report filed with the Securities and Exchange Commission on Feb. 13, 2009. The Company's long-term asbestos-related liabilities were US$1.455 billion as of Sept. 30, 2008. (Class Action Reporter, Oct. 24, 2008) Long-term insurance recoveries for asbestos-related liabilities were US$1.029 billion as of Dec. 31, 2008, compared with US$1.086 billion as of Dec. 31, 2007. The Company's long-term insurance recoveries for asbestos- related liabilities were US$960 million as of Sept. 30, 2008. (Class Action Reporter, Oct. 24, 2008) The Company recorded accrued asbestos-related liabilities of US$171 million as of Dec. 31, 2008, compared with US$250 million as of Dec. 31, 2007. Like many other industrial companies, the Company is a defendant in personal injury actions related to asbestos. The Company did not mine or produce asbestos, nor did it make or sell insulation products or other construction materials that have been identified as the primary cause of asbestos related disease in the vast majority of claimants. Products containing asbestos previously manufactured by the Company or by previously owned subsidiaries fall into two general categories: refractory products and friction products. Headquartered in Morris Township, N.J., Honeywell International Inc. is a diversified technology and manufacturing company. The Company serves customers with aerospace products and services, control, sensing and security technologies for buildings, homes and industry, turbochargers, automotive products, specialty chemicals, electronic and advanced materials, and process technology for refining and petrochemicals and energy efficient products and solutions for homes, business and transportation. ASBESTOS LITIGATION: Honeywell Records $877Mil NARCO Receivable ---------------------------------------------------------------- Honeywell International Inc.'s consolidated financial statements reflect an insurance receivable corresponding to the liability for settlement of pending and future NARCO-related asbestos claims of US$877 million as of Dec. 31, 2008 and US$939 million as of Dec. 31, 2007. The Company recorded an insurance receivable corresponding to the liability for settlement of pending and future asbestos claims of NARCO of US$880 million as of Sept. 30, 2008. (Class Action Reporter, Oct. 24, 2008) The Company owned North American Refractories Company (NARCO) from 1979 to 1986. NARCO produced refractory products (high temperature bricks and cement) that were sold to the steel industry in the East and Midwest. Less than two percent of NARCO'S products contained asbestos. When it sold the NARCO business in 1986, the Company agreed to indemnify NARCO with respect to personal injury claims for products that had been discontinued prior to the sale. NARCO retained all liability for all other claims. On Jan. 4, 2002, NARCO filed for reorganization under Chapter 11 of the U.S. Bankruptcy Code. As a result of the NARCO bankruptcy filing, all of the claims pending against NARCO are automatically stayed pending the reorganization of NARCO. In addition, the bankruptcy court enjoined both the filing and prosecution of NARCO-related asbestos claims against Honeywell. The stay has remained in effect continuously since Jan. 4, 2002. In connection with NARCO's bankruptcy filing, the Company paid NARCO's parent company US$40 million and agreed to provide NARCO with up to US$20 million in financing. In November 2007, the Bankruptcy Court entered an amended order confirming the NARCO Plan of Reorganization without modification and approving the 524(g) trust and channeling injunction in favor of NARCO and the Company. In December 2007, certain insurers filed an appeal of the Bankruptcy Court Order in the U.S. District Court for the Western District of Pennsylvania. The District Court affirmed the Bankruptcy Court Order in July 2008. In August 2008, insurers filed a notice of appeal to the Third Circuit Court of Appeals. The Company's consolidated financial statements reflect an estimated liability for settlement of pending and future NARCO- related asbestos claims as of Dec. 31, 2008 and Dec. 31, 2007 of US$1.1 billion. The estimated liability for pending claims is based on terms and conditions, including evidentiary requirements, in definitive agreements with about 260,000 current claimants, and an estimate of the unsettled claims pending as of the time NARCO filed for bankruptcy protection. Substantially all settlement payments with respect to current claims have been made. About US$100 million of payments due under these settlements is due only upon establishment of the NARCO trust. Headquartered in Morris Township, N.J., Honeywell International Inc. is a diversified technology and manufacturing company. The Company serves customers with aerospace products and services, control, sensing and security technologies for buildings, homes and industry, turbochargers, automotive products, specialty chemicals, electronic and advanced materials, and process technology for refining and petrochemicals and energy efficient products and solutions for homes, business and transportation. ASBESTOS LITIGATION: Honeywell Still Involved in Travelers Case ---------------------------------------------------------------- Honeywell International Inc. is still involved in litigation with Travelers Casualty and Insurance Company over insurance claims related to the Company's former subsidiary North American Refractories Company (NARCO). In the second quarter of 2006, Travelers sued the Company and other insurance carriers in the Supreme Court of New York, County of New York, disputing obligations for NARCO-related asbestos claims under high excess insurance coverage issued by Travelers and other insurance carriers. About US$340 million of coverage under these policies is included in the Company's NARCO-related insurance receivable at Dec. 31, 2008. The Company said it believes it is entitled to the coverage at issue and has filed counterclaims in the Superior Court of New Jersey seeking declaratory relief with respect to this coverage. In the third quarter of 2007, the Company prevailed in the New York action on a critical choice of law issue concerning the appropriate method of allocating NARCO-related asbestos liabilities to triggered policies. The Court's ruling is subject to appeal. Headquartered in Morris Township, N.J., Honeywell International Inc. is a diversified technology and manufacturing company. The Company serves customers with aerospace products and services, control, sensing and security technologies for buildings, homes and industry, turbochargers, automotive products, specialty chemicals, electronic and advanced materials, and process technology for refining and petrochemicals and energy efficient products and solutions for homes, business and transportation. ASBESTOS LITIGATION: Bendix Has 51,951 Pending Claims at Dec. 31 ---------------------------------------------------------------- Honeywell International Inc.'s Bendix friction materials business faced 51,951 unresolved asbestos claims during the year ended Dec. 31, 2008, compared with 51,658 claims during the year ended Dec. 31, 2007. During the year ended Dec. 31, 2008, Bendix noted 4,003 claims filed and 3,710 claims resolved. During the year ended Dec. 31, 2007, Bendix noted 2,771 claims filed and 8,221 claims resolved. Bendix faced 51,890 asbestos-related claims in the nine months ended Sept. 30, 2008. (Class Action Reporter, Oct. 24, 2008) Bendix manufactured automotive brake parts that contained chrysotile asbestos in an encapsulated form. From 1981 through Dec. 31, 2008, the Company has resolved about 117,000 Bendix related asbestos claims. The Company had 127 trials resulting in favorable verdicts and 12 trials resulting in adverse verdicts. Two of these adverse verdicts were reversed on appeal, three claims were settled and the remaining has been or will be appealed. Of the unresolved claims in the year ended Dec. 31, 2008, the Company recorded 5,575 claims related to mesothelioma and other cancers and 46,376 other claims. Of the unresolved claims in the year ended Dec. 31, 2007, the Company recorded 5,011 claims related to mesothelioma and other cancers and 46,647 other claims. About 45 percent of about 52,000 pending claims at Dec. 31, 2008 are on the inactive, deferred, or similar dockets established in some jurisdictions for claimants who allege minimal or no impairment. About 52,000 pending claims also include claims filed in jurisdictions like Texas, Virginia, and Mississippi that historically allowed for consolidated filings. The Company's consolidated financial statements reflect an estimated liability for resolution of pending and future Bendix related asbestos claims of US$578 million at Dec. 31, 2008 and US$517 million at Dec. 31, 2007. The Company has about US$1.9 billion of insurance coverage remaining with respect to pending and potential future Bendix related asbestos claims, of which US$156 million (at Dec. 31, 2008) and US$197 million (at Dec. 31, 2007) are reflected as receivables in the Company's consolidated balance sheet. Headquartered in Morris Township, N.J., Honeywell International Inc. is a diversified technology and manufacturing company. The Company serves customers with aerospace products and services, control, sensing and security technologies for buildings, homes and industry, turbochargers, automotive products, specialty chemicals, electronic and advanced materials, and process technology for refining and petrochemicals and energy efficient products and solutions for homes, business and transportation. ASBESTOS LITIGATION: Bendix, NARCO Liability Recorded at $1.709B ---------------------------------------------------------------- Honeywell International Inc.'s total asbestos-related liabilities for one former and one current business were US$1.709 billion during the year ended Dec. 31, 2008. These entities are the Company's former North American Refractories Company (NARCO) and the Company's current Bendix friction materials business. Of the US$1.709 billion during the year ended Dec. 31, 2008, US$578 million related to Bendix and US$1.131 billion related to NARCO. During the year ended Dec. 31, 2007, the Company's NARCO and Bendix liabilities totaled US$1.655 billion, of which US$517 million related to Bendix and US$1.138 billion related to NARCO. During the year ended Dec. 31, 2008, the Company's insurance recoveries for NARCO and Bendix asbestos liabilities were US$1.033 billion, of which US$156 million related to Bendix and US$877 related to NARCO. During the year ended Dec. 31, 2007, the Company's insurance recoveries for NARCO and Bendix asbestos liabilities were US$1.136 billion, of which US$197 million related to Bendix and US$939 million related to NARCO. Headquartered in Morris Township, N.J., Honeywell International Inc. is a diversified technology and manufacturing company. The Company serves customers with aerospace products and services, control, sensing and security technologies for buildings, homes and industry, turbochargers, automotive products, specialty chemicals, electronic and advanced materials, and process technology for refining and petrochemicals and energy efficient products and solutions for homes, business and transportation. ASBESTOS LITIGATION: Coca-Cola Spends $3.5M for Cleanup in 2008 ---------------------------------------------------------------- Coca-Cola Enterprises Inc. had capital expenditures of about US$3.5 million in 2008 under a cleanup plan involving asbestos, according to the Company's annual report filed with the Securities and Exchange Commission on Feb. 13, 2009. The Company estimates that its capital expenditures will be about US$2.5 million in 2009 and 2010 under this plan. The Company has adopted a plan for the testing, repair, and removal, if necessary, of underground fuel storage tanks at the Company's locations in North America. This plan includes any necessary remediation of tank sites and the abatement of any pollutants discharged. The Company's plan extends to the upgrade of wastewater handling facilities, and any necessary remediation of asbestos-containing materials found in the Company's facilities. The Company had capital expenditures of about US$3.5 million in 2007 under an environmental cleanup plan, which also provided for asbestos. (Class Action Reporter, Feb. 22, 2008) Headquartered in Atlanta, Coca-Cola Enterprises Inc. is a bottler and distributor of Coca-Cola products. The Company accounts for 18 percent of worldwide sales of Coca-Cola's beverages. The Company also bottles and distributes other beverages, including Canada Dry and Dr Pepper, Nestea, bottled waters, and juices. ASBESTOS LITIGATION: Maremont Judgment Reversed in Polanco Case ---------------------------------------------------------------- The Court of Appeals of Ohio, Third District, Paulding County, reversed the Paulding County Common Pleas Court ruling, which granted summary judgment in favor of Maremont Corporation, in an asbestos suit filed by Connie Polanco. The cause was remanded. The case is styled Connie Polanco, on her Own Behalf and as Personal Representative on Behalf of the Estate of Ynacio Polanco, Decedent, Plaintiffs-Appellants v. Asbestos Corporation, Ltd., et al., Defendants-Appellees. Judges Stephen R. Shaw, Vernon Preston, and Richard M. Rogers entered judgment in Case No. 11-07-13 on Jan. 12, 2009. Mrs. Polanco, individually and as personal representative of the estate of Ynacio Polanco, appealed the Jan. 8, 2007 ruling granting summary judgment in favor of Maremont. This matter stemmed from the employment of Mr. Polanco by Maremont. From 1966 until 1979, Mr. Polanco was employed by Maremont, a brake manufacturing plant in Paulding County, Ohio. On April 14, 2002, Mr. Polanco died due to mesothelioma. On April 14, 2003, Mrs. Polanco filed a wrongful death and survivorship complaint against Maremont and 36 other defendants. In her complaint, Mrs. Polanco alleged that Mr. Polanco died in April 2002 from mesothelioma. She argued that Mr. Polanco was exposed to asbestos as part of his employment with Maremont between 1966 and 1979. In August 2006, Maremont filed a motion for summary judgment. In October 2006, Mrs. Polanco filed a memorandum in opposition to Maremont's request for summary judgment. In December 2006, she supplemented her opposition to Maremont's motion for summary judgment with more documents. In January 2007, the trial court granted summary judgment in Maremont's favor. Thereafter, Mrs. Polanco appealed the judgment of the trial court to the Appeals Court. In October 2007, the Appeals Court dismissed the appeal for lack of jurisdiction because multiple defendants had not been dismissed and remained as parties to the litigation in the trial court. Subsequently, the trial court amended the Jan. 9, 2007 decision, making it a final appealable order. Mrs. Polanco now appealed. Accordingly, as the Appeals Court found genuine issues of material fact, Mrs. Polanco's assignment of error was sustained. Therefore, the Jan. 9, 2007 judgment of the trial court granting summary judgment in favor of Maremont was reversed and remanded for trial. Richard E. Reverman, Esq., and Kelly W. Thye, Esq., represented Appellants. Randall L. Solomon, Esq., and Edward D. Papp, Esq., represented Maremont Corporation. ASBESTOS LITIGATION: 10 Suits Filed on Feb. 2–6 in Madison Court ---------------------------------------------------------------- During the week of Feb. 2, 2009 through Feb. 6, 2009 week, 10 asbestos-related lawsuits were filed in Madison County, Circuit Court, Ill., The Madison St. Clair Record reports. These claims are: -- In Case No. 09-L-0089, Malcolm and Josephine Beasley claims Mr. Beasley developed mesothelioma after his work as a production worker, shaft roller, serviceman, curved hoses worker, yarn spinner, raw material supplier, worker in the transportation department, truck driver, jointer department worker and brake and clutch worker from 1959 until 1995. Randy L. Gori, Esq., of Gori, Julian and Associates represents the Beasleys. W. Mark Lanier, Esq., Patrick N. Haines, Esq., R. Craig Bullock, Esq., J. Kyle Beale, Esq., and Sara A. Morton, Esq., of The Lanier Law Firm in Houston will serve of counsel. -- In Case No. 09-L-0091, Helen J. Dunne-Dunajski of Michigan, a secretary, accounting clerk and part-time bookkeeper at Paragon Oil Refinery from 1950 until 1980, claims mesothelioma. The suit also alleges she was exposed to asbestos fibers from 1921 until 1941 through her father, who worked as a maintenance man for a high-rise apartment building and who performed home repair and maintenance. She was also exposed through her husband, Vincent Dunne, who worked as an industrial chemist from 1942 until 1956 and as industrial chemist and metallurgist from 1956 through the 1970s. Elizabeth V. Heller, Esq., and Robert Rowland, Esq., of Goldenbert, Heller, Antognoli and Rowland in Edwardsville, Ill., represent Mrs. Dunne- Dunajski. -- In Case No. 09-L-0079, Alton Echols of Alabama, a construction laborer and carpenter, service station attendant and mechanic and brick mason at various locations throughout Alabama from 1944 until 1987, claims mesothelioma. G. Michael Stewart, Esq., and Jill Price, Esq. of SimmonsCooper in East Alton, Ill., represent Mr. Echols. -- In Case No. 09-L-0083, Richard and Patti Gilberg of Wisconsin claim Mr. Gilberg developed mesothelioma after his work at a salvage yard doing derailment work and after his work at lumber yards. The suit says Mr. Gilberg was also exposed through his father who worked as a trackman and road master. Randy L. Gori, Esq., and Barry Julian, Esq., of Gori, Julian and Associates in Alton, Ill., represent the Gilbergs. -- In Case No. 09-L-0086, Samuel and Arolone Gurtner of Wisconsin claim Mr. Gurtner developed mesothelioma after his work from 1952 until now as a laborer, sign installer, sheet metal worker, owner of Top O' The Morning, and volunteer fireman. Randy L. Gori, Esq., and Barry Julian, Esq., of Gori, Julian and Associates in Alton, Ill., represent the Gurtners. -- In Case No. 09-L-0084, Edwin and Evelyn Johnson of Oklahoma claim Mr. Johnson developed mesothelioma after his work from 1944 until 1946 as a laborer in the U.S. Army, from 1946 until 1948 as a machine operator at Kimball's Feed Mill, from 1948 until 1958 as a laborer at a gas station and from 1948 until 1985 as an equipment operator and foreman at Woodard County Road Commission. Randy L. Gori, Esq., and Barry Julian, Esq., of Gori, Julian and Associates in Alton, Ill., represent the Johnsons. -- In Case No. 09-L-0102, Sylvia Langager of Missouri claims mesothelioma on behalf of a recently deceased man, Thelmar Sophus "Jake" Langager, who worked from 1972 until 2008 as a truck driver, painter, plumber and laborer at various locations. Michael R. Bilbrey, Esq., Timothy P. Hulla, Esq., and James R. Stever, Esq., of the Law Offices of Michael R. Bilbrey in Edwardsville, Ill., represent Ms. Langager. -- In Case No. 09-L-0085, William Oswald of Illinois, a painter, lather, sanitation worker and truck driver at various locations throughout Illinois from 1955 until 1989, claims mesothelioma. John A. Barnerd, Esq., and Myles L. Epperson, Esq., of SimmonsCooper in East Alton, Ill., represent Mr. Oswald. -- In Case No. 09-L-0085, Howard M. and Viola Simmons of California claims Mr. Simmons developed lung cancer after his work from 1943 until 1945 as a laborer in the U.S. Navy and from 1941 until 1985 as a laborer at Shell Oil. Randy L. Gori, Esq., and Barry Julian, Esq., of Gori, Julian and Associates in Alton, Ill., represent the Simmons couple. -- In Case No. 09-L-0094, Dorothy Wooten of Illinois claims lung cancer on behalf of her recently deceased husband, Jimmy Wooten. According to the suit, Mr. Wooten worked from 1954 until 1989 as a laborer and a barber at various locations throughout Illinois. Brian J. Cooke, Esq., Drew Sealey, Esq., and Karoline Castens, Esq., of SimmonsCooper in East Alton, Ill., represent Mrs. Wooten. ASBESTOS LITIGATION: 13 Suits Filed on Jan. 26-30 in Madison ---------------------------------------------------------------- During the Jan. 26, 2009 through Jan. 30, 2009 week, 13 asbestos-related lawsuits were filed in Madison County, Ill., The Madison St. Clair Record reports. The following claims were filed: -- In Case No. 09-L-0077, Lee and Betty Bowers of Kansas claim Mr. Bowers developed mesothelioma after his work from 1962 until 2002 as a mechanic and truck driver at various locations throughout Illinois. Shane F. Hampton, Esq., and Paul M. Dix, Esq., of SimmonsCooper in East Alton, Ill., represent the Bowers couple. -- In Case No. 09-L-0066, Leroy and Norma Clark of Florida claim Mr. Clark developed mesothelioma after his work from 1951 until 1992 as a laborer, carpenter, forklift operator and foreman. Shane F. Hampton, Esq., and Paul M. Dix, Esq., of SimmonsCooper in East Alton, Ill., represent the Clarks. -- In Case No. 09-L-0067, Barbara Sue Dreher claims mesothelioma on behalf of her recently deceased husband, Norbert Dreher. The suit says Mr. Dreher worked as a carpenter throughout Illinois, Missouri and Kansas from 1960 until 1996. Perry J. Browder, Esq., John A. Barnerd, Esq., and Trent B. Miracle, Esq., of SimmonsCooper in East Alton, Ill., represent Mrs. Dreher. -- In Case No. 09-L-0060, Leroy and Marjorie Ducommun of New Mexico claim Mr. Ducommun developed multiple myeloma after serving in the U.S. Navy from 1944 until 1946 and after working as a pipefitter and welder from 1948 until 1985. Randy L. Gori, Esq., and Barry Julian, Esq., of Gori, Julian and Associates in Alton, Ill., represent the Ducommuns. -- In Case No. 09-L-0062, Carl and Denise Gold of Kentucky claim Mr. Gold developed mesothelioma after working as a boilerman for the U.S. Navy from 1966 until 1972. Randy L. Gori, Esq., and Barry Julian, Esq., of Gori, Julian and Associates in Alton, Ill., represent the Golds. -- In Case No. 09-L-0063, Patricia and Albert Lazowski of Illinois claim Mrs. Lazowski developed mesothelioma after her work as a laborer from 1958 through the 1970s. The suit says she was also exposed to asbestos through her husband, who worked as a laborer for 23 years. Randy L. Gori, Esq., and Barry Julian, Esq., of Gori, Julian and Associates in Alton, Ill., represent the Lazowskis. -- In Case No. 09-L-0068, Holger Lochheed of Texas, hotel business owner, pilot, restaurant business owner and worker, assistant general manager, general manager and delivery truck driver from 1957 until 2007, claims mesothelioma. Christopher R. Guinn, Esq., Christopher J. Levy, Esq., John A. Barnerd, Esq., and Perry J. Browder, Esq., of SimmonsCooper in East Alton, Ill., represent Mr. Lochheed. -- In Case No. 09-L-0054, Walter Malisani of Colorado, a machinist apprentice, machinist and maintenance worker from 1954 until 2000 claims mesothelioma. Timothy F. Thompson Jr., Esq., and Stephanie Lyons, Esq., of SimmonsCooper in East Alton, Ill., represent Mr. Malisani. -- In Case No. 09-L-0059, Pat and Patricia Montgomery of Kentucky claim Mr. Pat developed mesothelioma after helping his father on a family farm from 1951 until 1957. At various times, Mr. Montgomery was also exposed to asbestos as a laborer, mechanic, plastic molder, pipe fitter, driller, miner, and mechanical millwright. Elizabeth V. Heller, Esq., and Robert Rowland, Esq., of Goldenberg, Heller, Antognoli and Rowland in Edwardsville, Ill., represent the Montgomerys. -- In Case No. 09-L-0056, Donald and Marlene Peters of Illinois claim Mr. Peters developed benzene related non-Hodgkins lymphoma through his work as a laborer from 1952 until 1992. Randy L. Gori, Esq., and Barry Julian, Esq., of Gori, Julian and Associates in Alton, Ill., represent the Peters couple. -- In Case No. 09-L-0061, Estill L. and Hessie Shepherd of Michigan claim Mr. Shepherd developed lung cancer after his work at various times as a molder, U.S. Army laborer, bartender, welder, and fabricator. Randy L. Gori, Esq., and Barry Julian, Esq., of Gori, Julian and Associates of Alton, Ill., represent the Shepherds. -- In Case No. 09-L-0055, Christine Warner of Tennessee claims her recently deceased mother, Irene Marsh, developed mesothelioma because of her work as a sales and seamstress at House of Fashions in Memphis, Tenn., from 1959 until 1993. Elizabeth V. Heller, Esq., and Robert Rowland, Esq., of Goldenberg, Heller, Antognoli and Rowland in Edwardsville, Ill., represent Ms. Warner. -- In Case No. 09-L-0076, Jane White of Missouri claims mesothelioma on behalf of her deceased husband, Gary White. According to the suit, Mr. White worked at various times as a boiler operator in the U.S. Navy, as a welder, as a laborer at B & H Transport, as a laborer at Import Auto Transport, and as a laborer for his asphalt repair service. Randy L. Gori, Esq., and Barry Julian, Esq. of Gori, Julian and Associates in Alton, Ill., represent Mrs. White. ASBESTOS LITIGATION: RICO Breach Action Filed in Miss. on Feb. 9 ---------------------------------------------------------------- National Service Industries (a/k/a North Brothers), on Feb. 9, 2009, filed a suit over asbestos and Racketeer Influenced and Corrupt Organizations Act (RICO) breaches in Holmes County Circuit Court, Miss., The West Virginia Record reports. The suit was filed against Ray Harron, a West Virginia radiologist, his son Andrew Harron, and other defendants. Other defendants named are N&M Inc., Charlie Heath Mason, Molly Ruth Netherland, Christopher Linn Taylor, and yet unnamed John Doe defendants 1-20. The suit says, "The primary cause of this action is a widespread unlawful enterprise engaged in a pattern of racketeering activity across state lines and a conspiracy to engage in racketeering activity involving numerous RICO predicate acts for at least the past 10 calendar years. The predicate acts include mail fraud and wire fraud ..." The suit also says that since 1995, the defendants "have schemed to generate false medical test results, false medical reports and false diagnoses to substantiate tens of thousands of personal injury cases filed against plaintiff and other similarly situated companies or bankruptcy trusts involving allegations of asbestos related disease." NSI says the defendants engaged in this "unlawful scheme for the purpose of monetary gain by creating fraudulent medical documentation to make the individuals that they recruited and 'screened' appear to suffer from asbestos-related disease to extract money from plaintiff and others through the court system and/or claims settlements." The defendants' screenings typically included the generation of exposure histories, chest x-rays, accompanying reads by physicians, physical exams, pulmonary function tests and diagnoses by Ray Harron and other defendants for personal injury law firms. The suit says the defendants spent more than US$1.5 million "aggressively marketing" their screening services to their law firm and attorney "customers" and on mass advertisements soliciting individual subjects for screening. NSI says it has paid millions of dollars to settle asbestos- related claims supported by the defendants' false medical evidence. Mason and Netherland together ran N&M Inc. (a medical test screening company) from Pascagoula, Miss., but it operated in others states. The company was dissolved in 2007. The suit says Mr. Taylor worked for N&M. He solicited law firms and recruited screening subjects. Ray Harron, whose last known address is Bridgeport, W.Va., was a certified B-reader of x-rays. Andrew Harron, is a Wisconsin physician and a certified B-reader. The complaint also provides background on how the defendants allegedly began providing these screenings and details U.S. District Judge Janis Jack's 2005 reprimand against trial lawyers during a 2005 silicosis tort case. Judge Jack's findings triggered investigations by a congressional committee, federal prosecutors in New York and the Texas attorney general. NSI seeks joint and several compensatory damages, punitive damages, pre-judgment interest, reimbursement of court costs, expenses and attorney fees. Jackson, Miss., attorneys Marcy B. Croft, Esq., Walter G. Watkins Jr., Esq., and Ashley E. Calhoun, Esq., the Denver trio of David M. Setter, Esq., John M. Seebohm, Esq., and Jeanette S. Eirich, Esq., represent NSI. ASBESTOS LITIGATION: Woods' Suit Filed v. Union Carbide in Texas ---------------------------------------------------------------- Robert Earl Woods, on Feb. 2, 2009, filed an asbestos-related lawsuit against Union Carbide Corporation and other defendants in Galveston County District Court, Tex., The Southeast Texas Record reports. Other defendants include BP NGL, Amoco Corporation, The Dow Chemical Company, Chevron Corporation, Shell, and Texaco Inc. join Union Carbide as defendants. Robert Earl Woods says his relative, Willie E. Woods, died two years ago from lung cancer, which Robert Earl Woods links to the decedent's 20-year work in the refining, petrochemical and construction industries. Court papers explain Willie E. Woods was employed as an insulator and his duties required him to be around "asbestos- containing materials and other toxic substances." The defendants are accused of numerous offenses including but not limited to negligence, misrepresentation, and civil conspiracy. The estate seeks restitution for impairment, disfigurement, pain, suffering, and mental anguish in addition to expenses arising from previous medical treatment and the subsequent funeral and interment. The Houston-based law firm of Williams, Kherkher, Hart, Boundas LLP represents the Woods estate. Galveston County 122nd District Court Judge John Ellisor is presiding over Case No. 09CV0133. ASBESTOS LITIGATION: 3M Faces 2,700 Respirator Claims at Dec. 31 ---------------------------------------------------------------- 3M Company, as of Dec. 31, 2008, faced respirator mask and asbestos lawsuits in various courts that purport to represent about 2,700 individual claimants, a decrease from about 8,750 individual claimants with actions pending at Dec. 31, 2007. The Company faced respiratory mask lawsuits (including asbestos) that purport to represent 3,960 individual claimants as of Sept. 30, 2008, a reduction from about 4,700 individual claimants with actions pending at June 30, 2008. (Class Action Reporter, Nov. 14, 2008) For more than 25 years, the Company has defended and resolved the claims of hundreds of thousands of individual claimants alleging injuries from occupational dust exposures. Most of the lawsuits and claims resolved by and currently pending against the Company allege use of some of its mask and respirator products and seek damages from the Company and other defendants for alleged personal injury from workplace exposures to asbestos, silica, coal or other occupational dusts found in products manufactured by other defendants or generally in the workplace. A minority of claimants generally allege personal injury from occupational exposure to asbestos from products previously manufactured by the Company, which are often unspecified, as well as products manufactured by other defendants, or occasionally at Company premises. In many of these lawsuits and claims, the Company is named as a defendant with multiple co-defendants where no product the Company manufactured is identified or where the Company is ultimately determined not to have manufactured the products identified by the plaintiffs. The Company's defense of this litigation has resulted in dismissals of many claims without any payment by the Company, and jury verdicts for the Company in seven of the eight cases tried to verdict (such trials occurred in 1999, 2000, 2003, 2004 and 2007), and an appellate reversal in 2005 of the one jury verdict adverse to the Company. Plaintiffs have asserted specific dollar claims for damages in 37 percent of the 1,013 lawsuits that were pending against the Company at the end of 2008 in all jurisdictions. Headquartered in St. Paul, Minn., 3M Company is a diversified technology company with the following businesses: Industrial and Transportation; Health Care; Safety, Security and Protection Services; Consumer and Office; Display and Graphics; and Electro and Communications. At Dec. 31, 2008, the Company employed 79,183 people, with 33,662 employed in the United States and 45,521 employed internationally. ASBESTOS LITIGATION: 3M Cites $35Mil Aearo Liability at Dec. 31 ---------------------------------------------------------------- 3M Company, through its Aearo Technologies unit, as of Dec. 31, 2008, has recorded US$35 million as an estimate of the probable liabilities for product liabilities and defense costs related to current and future Aearo-related asbestos and silica-related claims. On April 1, 2008, a subsidiary of the Company purchased the stock of Aearo Holding Corp., the parent of Aearo. Aearo manufactures and sells various products, including personal protection equipment, like eye, ear, head, face, fall and respiratory protection products. As of Dec. 31, 2008, Aearo and other companies that previously owned and operated Aearo's respirator business (American Optical Corporation, Warner-Lambert LLC, AO Corp. and Cabot Corporation) are named defendants, with multiple co-defendants, including the Company, in numerous lawsuits in various courts in which plaintiffs allege use of mask and respirator products and seek damages from Aearo and other defendants for alleged personal injury from workplace exposures to asbestos, silica-related, or other occupational dusts found in products manufactured by other defendants or generally in the workplace. Responsibility for legal costs, settlements, and judgments is currently shared in an informal arrangement among Aearo, Cabot, American Optical and a subsidiary of Warner Lambert and their insurers (Payor Group). Liability is allocated among the parties based on the number of years each company sold respiratory products under the "AO Safety" brand and owned the AO Safety Division of American Optical Corporation and the alleged years of exposure of the individual plaintiff. Aearo's share of the contingent liability is further limited by an agreement entered into between Aearo and Cabot on July 11, 1995. This agreement provides that, so long as Aearo pays to Cabot an annual fee of US$400,000, Cabot will retain responsibility and liability for, and indemnify Aearo against, asbestos and silica-related product liability claims for respirators manufactured prior to July 11, 1995. Because the date of manufacture for a particular respirator allegedly used in the past is often difficult to determine, Aearo and Cabot have applied the agreement to claims arising out of the use of respirators while exposed to asbestos or silica or products containing asbestos or silica prior to Jan. 1, 1997. With these arrangements in place, Aearo's potential liability is limited to exposures alleged to have arisen from the use of respirators while exposed to asbestos, silica or other occupational dusts on or after Jan. 1, 1997. Headquartered in St. Paul, Minn., 3M Company is a diversified technology company with the following businesses: Industrial and Transportation; Health Care; Safety, Security and Protection Services; Consumer and Office; Display and Graphics; and Electro and Communications. At Dec. 31, 2008, the Company employed 79,183 people, with 33,662 employed in the United States and 45,521 employed internationally. ASBESTOS LITIGATION: 3M Reserves $105M for Liability at Dec. 31 ---------------------------------------------------------------- 3M Company, as of Dec. 31, 2008, had reserves for respirator mask/asbestos liabilities of US$105 million (excluding Aearo Technologies reserves), according to the Company's annual report filed with the Securities and Exchange Commission on Feb. 17, 2009. As a result of the costs of defending itself and the greater cost of resolving claims of persons with malignant conditions, the Company increased its reserves for respirator mask/asbestos liabilities by US$25 million in 2008, all in the fourth quarter. As of Dec. 31, 2008, the Company's receivable for insurance recoveries related to the respirator mask/asbestos litigation was US$193 million. The Company's respirator mask or asbestos liabilities were US$126 million as of Sept. 30, 2008, compared with US$121 million as of Dec. 31, 2007. (Class Action Reporter, Nov. 14, 2008) The Company increased its receivables in the fourth quarter of 2008 for insurance recoveries related to respirator mask/asbestos litigation by US$6 million and received payments under the Company's insurance program of US$13 million in the fourth quarter of 2008 (bringing the total recoveries in 2008 to US$145 million). The Company currently has agreements in place to receive another US$18 million over the next two quarters in connection with the respirator mask/asbestos receivable. Headquartered in St. Paul, Minn., 3M Company is a diversified technology company with the following businesses: Industrial and Transportation; Health Care; Safety, Security and Protection Services; Consumer and Office; Display and Graphics; and Electro and Communications. At Dec. 31, 2008, the Company employed 79,183 people, with 33,662 employed in the United States and 45,521 employed internationally. ASBESTOS LITIGATION: 3M Awaits Judge's Assignment in Continental ---------------------------------------------------------------- 3M Company is awaiting the assignment of a judge to an asbestos- related declaratory judgment action filed on behalf of two of the Company's insurers (Continental Casualty and Continental Insurance Co. – both part of the Continental Casualty Group). On Jan. 5, 2007 the Company was served with the declaratory judgment action disclaiming coverage for respirator mask/asbestos claims. These insurers represent US$14 million of a US$193 million insurance recovery receivable. The action was filed in Hennepin County, Minn., and names the Company and over 60 of its insurers. At the Company's request, the case was transferred to Ramsey County, over the objections of the insurers. The Minnesota Supreme Court heard oral argument of the insurers' appeal of that decision in March 2008 and ruled in May 2008 that the proper venue of that case is Ramsey County. Headquartered in St. Paul, Minn., 3M Company is a diversified technology company with the following businesses: Industrial and Transportation; Health Care; Safety, Security and Protection Services; Consumer and Office; Display and Graphics; and Electro and Communications. At Dec. 31, 2008, the Company employed 79,183 people, with 33,662 employed in the United States and 45,521 employed internationally. ASBESTOS LITIGATION: Alcoa, Units Still Facing "Premises" Cases ---------------------------------------------------------------- Alcoa Inc. and its subsidiaries, as premises owners, still face active lawsuits filed on behalf of persons alleging injury as a result of occupational exposure to asbestos at various Company facilities. In addition, an Alcoa subsidiary company has been named, along with a large common group of industrial companies, in a pattern complaint where the company's involvement is not evident. Since 1999, several thousand of those complaints have been filed. To date, the subsidiary has been dismissed from almost every case that was actually placed in line for trial. The Company, its subsidiaries and acquired companies, all have had numerous insurance policies over the years that provide coverage for asbestos based claims. Many of these policies provide layers of coverage for varying periods of time and for varying locations. The Company said it believes that between its reserves and insurance it is adequately covered for its known asbestos exposure related liabilities, according to the Company's annual report filed with the Securities and Exchange Commission on Feb. 17, 2009. Headquartered in New York, Alcoa Inc. produces and manages primary aluminum, fabricated aluminum, and alumina combined, through its active and growing participation in all major aspects of the industry: technology, mining, refining, smelting, fabricating, and recycling. ASBESTOS LITIGATION: James Hardie Cites $93.6M Adjustment at 3Q ---------------------------------------------------------------- James Hardie Industries N.V.'s asbestos adjustments were US$93.6 million during the third quarter of fiscal year 2009, compared with US$1.2 million during the third quarter of fiscal year 2008, according to a Company report, on Form 6-K, filed with the Securities and Exchange Commission on Feb. 17, 2009. The asbestos adjustments are derived from an estimate of future Australian asbestos-related liabilities in accordance with an Amended Final Funding Agreement that was signed with the New South Wales Government on Nov. 21, 2006 and approved by the Company's security holders on Feb. 7, 2007. Headquartered in Amsterdam, The Netherlands, James Hardie Industries N.V. uses cellulose-reinforced fiber cement to create products for residential and commercial construction, including siding (Hardiplank), external cladding, walls, fencing, and roofing. The Company also makes fiber-reinforced concrete (FRC) pipe through its Hardie Pipe business. ASBESTOS LITIGATION: Hardie Cites Liability at $59.4M at Dec. 31 ---------------------------------------------------------------- James Hardie Industries N.V.'s current asbestos liability was US$59.4 million as of Dec. 31, 2008, according to a Company report, on Form 6-K, filed with the Securities and Exchange Commission on Feb. 17, 2009. Asbestos-related workers' compensation (under current liabilities) was US$5.2 million as of Dec. 31, 2008. As of Dec. 31, 2008, long-term asbestos liability was US$1.068 billion and long-term asbestos workers' compensation liability was US$59.3 million. Under current assets as of Dec. 31, 2008, asbestos-related restricted cash and cash equivalents were US$18.4 million, asbestos-related restricted short-term investments were US$54.7 million, and asbestos insurance receivable was US$10.6 million. Under current assets, asbestos-related workers' compensation was US$10.6 million and asbestos-related deferred income taxes were US$12.4 million. Under long-term assets as of Dec. 31, 2008, asbestos insurance receivable was US$133.1 million, asbestos-related workers' compensation was US$59.3 million, and asbestos-related deferred income taxes were US$288.5 million. Headquartered in Amsterdam, The Netherlands, James Hardie Industries N.V. uses cellulose-reinforced fiber cement to create products for residential and commercial construction, including siding (Hardiplank), external cladding, walls, fencing, and roofing. The Company also makes fiber-reinforced concrete (FRC) pipe through its Hardie Pipe business. ASBESTOS LITIGATION: Hardie Cites 502 Pending Claims at Dec. 31 ---------------------------------------------------------------- James Hardie Industries N.V. had 502 open asbestos-related claims during the nine months ended Dec. 31, 2008, according to a Company report, on Form 6-K, filed with the Securities and Exchange Commission on Feb. 17, 2009. The Asbestos Injuries Compensation Fund (AICF) provides compensation payments for Australian asbestos-related personal injury claims against Amaca Pty Ltd, Amaba Pty Ltd, and ABN 60 Pty Limited (Liable Entities). The claims data are reflective of these Australian asbestos- related personal injury claims against the Liable Entities. During the nine months ended Dec. 31, 2008, the Company recorded 462 new claims and 483 closed claims. The average settlement amount per settled claim was AUD188,858 and the average settlement amount per case closed was AUD168,525. Headquartered in Amsterdam, The Netherlands, James Hardie Industries N.V. uses cellulose-reinforced fiber cement to create products for residential and commercial construction, including siding (Hardiplank), external cladding, walls, fencing, and roofing. The Company also makes fiber-reinforced concrete (FRC) pipe through its Hardie Pipe business. ASBESTOS LITIGATION: Goodrich, Units Still Have Exposure Actions ---------------------------------------------------------------- Goodrich Corporation and certain of its subsidiaries still face various actions by plaintiffs alleging damages as a result of exposure to asbestos fibers in products or at the Company's facilities, according to the Company's annual report filed with the Securities and Exchange Commission on Feb. 17, 2009. A number of these cases involve maritime claims, which have been and are expected to continue to be administratively dismissed by the court. In May 2002, the Company completed the tax-free spin-off of its EIP segment, which at the time of the spin-off included EnPro Industries, Inc. and Coltec Industries Inc. At that time, two Coltec subsidiaries were defendants in personal injury claims relating to alleged asbestos-containing products sold by those subsidiaries prior to the Company's ownership. It is possible that asbestos-related claims might be asserted against the Company on the theory that it has some responsibility for the asbestos-related liabilities of EnPro, Coltec or its subsidiaries. A limited number of asbestos-related claims have been asserted against the Company as "successor" to Coltec or one of its subsidiaries. The Company said it believes that it has substantial legal defenses against these and other such claims. In addition, the agreement between EnPro and the Company that was used to effectuate the spin-off provides the Company with an indemnification from EnPro covering these liabilities. Headquartered in Charlotte, N.C., Goodrich Corporation supplies aerospace components, systems and services to the commercial and general aviation airplane markets. The Company also supplies systems and products to the global defense and space markets. Products and services are sold to customers in North America, Europe and Asia. ASBESTOS LITIGATION: 25T Claims Pending v. Fairmont in 6 States ---------------------------------------------------------------- An industrial supplies distributor, Fairmont Supply Company, which is a CONSOL Energy Inc. subsidiary, faced about 25,000 asbestos claims in state courts in six states, according to the Company's annual report filed with the Securities and Exchange Commission on Feb. 17, 2009. These states are: Pennsylvania, Ohio, West Virginia, Maryland, Mississippi, and New Jersey. Because a very small percentage of products made by third parties and supplied by Fairmont in the past may have contained asbestos and many of the pending claims are part of mass complaints filed by hundreds of plaintiffs against a hundred or more defendants, it has been difficult for Fairmont to determine how many of the cases actually involve valid claims or plaintiffs who were actually exposed to asbestos-containing products supplied by Fairmont. While Fairmont may be entitled to indemnity or contribution in certain jurisdictions from manufacturers of identified products, the availability of that indemnity or contribution is unclear at this time and, in recent years, some of the manufacturers named as defendants in these actions have sought protection from these claims under bankruptcy laws. Fairmont has no insurance coverage with respect to these asbestos cases. For the year ended Dec. 31, 2008, payments by Fairmont with respect to asbestos cases have not been material. Headquartered in Canonsburg, Pa., CONSOL Energy Inc. is a coal mining company, with some 4.5 billion tons of proved reserves, mainly in northern and central Appalachia and the Illinois Basin. The Company produces about 65 million tons of coal annually. ASBESTOS LITIGATION: CONSOL Energy Has Cases in Pa., Ill. Courts ---------------------------------------------------------------- CONSOL Energy Inc. is facing a limited number of asbestos cases in Pennsylvania and Illinois, according to the Company's annual report filed with the Securities and Exchange Commission on Feb. 17, 2009. All involve claims that the plaintiffs developed asbestos- related disease as a result of working with or around asbestos containing products used at mines operated by subsidiaries of Consolidation Coal Company or CONSOL of Kentucky. The Company has raised a number of defenses including lack of jurisdiction and that it is not properly named as a party since the Company did not own or operate the mines at which the alleged exposures occurred. Discovery is still in the early stages in each matter. Headquartered in Canonsburg, Pa., CONSOL Energy Inc. is a coal mining company, with some 4.5 billion tons of proved reserves, mainly in northern and central Appalachia and the Illinois Basin. The Company produces about 65 million tons of coal annually. ASBESTOS LITIGATION: Argument Heard in St. Louis Case on Feb. 17 ---------------------------------------------------------------- U.S. District Judge Carol Jackson, on Feb. 17, 2009, heard arguments in the penalty phase of an asbestos case against the City of St. Louis, STLtoday.com reports. Penalties could range from civil fines to ordering the City to identify and remediate the contamination. Judge Jackson ruled on the case in September 2008. At that time, she found that the City had violated the U.S. Clean Air Act when it used the so-called "wet method" to remove asbestos from homes it was demolishing to make way for a new runway at Lambert Airport. A group of residents in the suburb of Bridgeton sued the City over its mishandling of the demolition, which started in 2000. ASBESTOS LITIGATION: Burnley Ex-Builder's Death Linked to Hazard ---------------------------------------------------------------- An inquest heard that the death of 63-year-old Gerard Brennan, a builder from Burnley, England, was linked to exposure to asbestos, the Burnley Express reports. Mr. Brennan was admitted to Pendleside Hospice on Jan. 29, 2009 after falling ill. He died on Feb. 5, 2009. It is believed he faced many years of exposure to asbestos during his working life as a builder. The inquest was adjourned as Dr. Zuhair Twaij, consultant pathologist at Burnley General Hospital, wanted to carry out further histological tests. The inquest was adjourned by East Lancashire Coroner Mr. Richard Taylor. ASBESTOS LITIGATION: Oley Valley School Gym Cleanup Costs $36T ---------------------------------------------------------------- It costs US$36,000 to remove asbestos from Oley Valley High School's auxiliary gymnasium, the Reading Eagle reports. A contractor began removing the material on Feb. 10, 2009. The school is located near Reading, Pa. Superintendent Dr. Jeffrey F. Zackon said that workers renovating the gym discovered asbestos in glue that had bonded wood and cork in the flooring. Dr. Zackon said, "Immediately, we started air-quality tests and found no air-quality problems. The glue is not friable (airborne)." Air in the high school is being tested constantly, and the auxiliary gym has been sealed off from the rest of the building. Dr Zackon added that no illnesses have been reported because of the asbestos. Oley Valley's US$993,000 renovation project involves replacing floors in the auxiliary and main gymnasiums and adding new bleachers. The auxiliary gym was built in 1972. ASBESTOS LITIGATION: DENR Probes Disposal of Hazards in Benguet ---------------------------------------------------------------- The Philippine Department of Environment and Natural Resources is probing Lepanto Consolidated Mining Co.'s old lease sites in Benguet after the Company was found disposing of asbestos insulation panels in Mankayan, The Philippine Daily Inquirer reports. LCMC admitted to burying six truckloads of asbestos debris there, said Neoman dela Cruz, Cordillera director of the Mines and Geosciences Bureau. He said the Company's penalty would be based on the volume of buried asbestos debris that came from Metro Manila. The Mine Rehabilitation Fund Committee has been studying whether LCMC can access its trust fund so it could clean up the dump in Barangay Sapid in Mankayan, Mr. dela Cruz said. In a Feb. 9, 2009 letter to the DENR, LCMC's environment manager Rolando Reyes reported that 8.78 metric tons of asbestos debris had been "resurfaced, repackaged and hauled out" to a facility in Urdaneta City, Pangasinan, on Oct. 8, 2008. According to an MGB report sent to Environment Secretary Lito Atienza, LCMC had acknowledged that it had exported waste containing "suspected/presumed asbestos ceiling and insulation materials" to Mankayan in 2007. The report indicated that the municipality had been aware of this activity. On Feb. 10, 2009, Alex Luis, sanitary engineer of the Environmental Management Bureau, led MGB and health officials in testing Mankayan's soil and water where the asbestos was unearthed, upon the request of Mayor Manalo Galuten. A Feb. 4, 2009 letter to LCMC from the Occupational Safety and Health Center, an attached agency of the Department of Labor and Employment, had assured the firm that the soil was free of asbestos contaminants. A law banning asbestos' use or sale in the Philippines is still pending before the Senate. ASBESTOS LITIGATION: 22% of Kent Sites Cited for Safety Progress ---------------------------------------------------------------- The Health and Safety Executive issued improvement notices to 22 percent of the sites it visited in Kent, England, Contract Journal reports. HSE inspectors visited 151 Kent sites, including Thanet, Canterbury, Dartford, and Dover, and issued 33 improvement notices. It also issued two prohibition notices. The measures are part of a campaign to remind business of their responsibilities under the Control of Asbestos Regulations 2006. Regulations require that companies take a number of measures including: -- Taking reasonable steps to find asbestos on the premises and assess the condition of the materials; -- Presuming that materials do contain asbestos unless there is evidence they do not; -- Preparing a record of the location and condition of the asbestos-containing materials and assessing the risk of them; -- Preparing and implementing a plan to manage the risks; -- Giving information on the location and condition of the material to anyone who is liable to disturb it; -- Monitoring the condition of the material left in place. Mike Walters, HM principal inspector of the HSE in Kent said, "It is disappointing to note that 25 percent of the premises are failing significantly in their duty which has resulted in enforcement notices being served. "Duty holders need to check if they are taking reasonable steps to ensure that asbestos is adequately managed in their premises." ASBESTOS LITIGATION: Report Indicates Kier Breached Safety Rules ---------------------------------------------------------------- A report says that construction firm Kier Group plc violated safety rules with the improper disposal of asbestos in South Harrow, England, the Harrow Observer reports. The revelation is contained in a report into the incident that remained confidential until pressure by the opposition Labour party, which originally flagged up the problem, forced Harrow Council to make it public. Workers refurbishing a property in Brookside Close ripped out floor tiles and toilet cisterns and simply dumped them in an open skip, rather than arranging a specialist licensed waste contractor to collect it. These tossed materials were deemed "low risk," the tiles were thermoplastic and the cisterns Bakerlite, and a "neglible risk to the public." The report says, "As a result of accepted poor site management and inadequate quality control measures undertaken by Kier in Area 6 (Brookside Close), operatives did not receive appropriate asbestos related information. "This failure by the site manager of Kier was in clear contravention of the Company's and Harrow Council's health and safety policy." It was known that before the asbestos-dumping took place, Kier had sacked an area manager responsible for Brookside Close and neighboring streets "as a direct consequence of his failure to work within their health and safety policy." ASBESTOS LITIGATION: Former T&N Employees to Keep Gov't. Payout ---------------------------------------------------------------- The United Kingdom Government is allowing former Turner and Newall employees, who developed asbestos-related diseases, to keep their full Government compensation alongside that paid by the Company's administrators, Wigan Today reports. T and N is the parent company of Turner Brothers. The Government had previously recovered the lump sums paid out under the Pneumoconiosis (Workers' Compensation) Act to those suffering from the chest diseases, if they subsequently received the reduced compensation from the firm's successors. The Government compensation scheme was introduced as an interim measure because of a legal impasse which had been blocking T and N's own payments offer. Since the collapse of T and N's American parent, Federal-Mogul Corporation, some former employees who developed crippling illnesses like mesothelioma have been receiving reduced compensation from T and N Trusts set up to help victims worldwide. The former Turner Brothers asbestos firm off Leigh Road once employed more than 2,000 staff. Later, the plant produced colliery conveyor belting and closed in the mid-1980s. Tinned foods giant Heinz, and the Clarington Forge-owned spade- makers Bulldog Tools of Ince, are both also locked in asbestosis compensation battles with the families of employees who subsequently fell ill with the disease. In the North West, 272 surviving people are diagnosed with asbestos-related cancer. ASBESTOS LITIGATION: Brown Questioned on Reversing Lords' Ruling ---------------------------------------------------------------- The United Kingdom's Prime Minister, Gordon Brown, answered questions over whether or not sufferers of asbestos-related pleural plaques would see an overturning of legislation, Norwich Union reports. A House of Lords ruling said that those who suffer from pleural plaques were not entitled to compensation, despite the fact that the condition develops from exposure to asbestos, which can increase the risk of mesothelioma or lung cancer. Yorkshire MP Mick Clapham told Mr. Brown that it was important that a resolution was reached over the situation. The Health and Safety Executive warned that many tradesmen are unaware of the fact that more people die each year from workplace asbestos-related diseases than from road accidents. ASBESTOS LITIGATION: Dismissal Motion in Ekweani Lawsuit Granted ---------------------------------------------------------------- The U.S. District Court, District of Maryland, granted the Howard Board of Education and Diane Mikulis' motion to dismiss a case involving asbestos filed by Ijeamaka Ekweani and her daughter Elonna Ekweani. The case is styled Ijeamaka Ekweani, et al. v. Board of Education of Howard County, et al. District Judge Catherine C. Blake entered judgment in Civil No. CCB-07-3432 on Dec. 31, 2008. Elonna Ekweani studied at Jeffers Hill Elementary School, a public school in Howard County, Md., from November 1992 until her graduation in 1998. Upon enrolling in Jeffers Hill, Elonna Ekweani began suffering from continual respiratory ailments stemming from her asthma. Subsequent to her departure from Jeffers Hill, Elonna Ekweani and Ijeamaka Ekweani learned that "hazardous, toxic conditions" existed there, including "lack of windows and lack of adequate ventilation due to defective and substandard design and construction, substandard air quality, toxic mold, asbestos and other environmental conditions." According to the plaintiffs, the defendants knew of the conditions and took no action to abate them. The plaintiffs also contended that the defendants were aware of Elonna Ekweani's condition while she was a student at Jeffers Hill and failed to take any corrective action, such as transferring her to another school. On Dec. 21, 2007, plaintiffs filed a complaint, alleging that the Board and Ms. Mikulis, Chairman of the Howard County Board of Education, violated Elonna Ekweani's civil rights and committed various state torts by failing to abate the conditions at Jeffers Hill that caused Elonna Ekweani's injuries. On May 14, 2008, the defendants moved to dismiss the majority of plaintiffs' claims. In their opposition, the plaintiffs sought leave to amend the complaint. The motion to dismiss filed by the Board and Ms. Mikulis was granted. All claims brought by Ijeamaka Ekweani on her individual behalf were dismissed with prejudice. ASBESTOS LITIGATION: Judgment Ok'd in Rahmanizad Case in Calif. ---------------------------------------------------------------- The Court of Appeal, Second District, Division 3, California, affirmed the Superior Court of Los Angeles County's judgment in an asbestos case involving Herschel Rahmanizad and the Montecito Condominium Homeowner's Association (HOA). The case is styled Montecito Condominium Homeowner's Association, Plaintiff, Cross-defendant and Appellant v. Herschel Rahmanizad, Defendant, Cross-complainant and Appellant. Presiding Justice Joan D. Klein and Associate Justices Patti S. Kitching and Richard D. Aldrich entered judgment in Case Nos. B199493, B200982 on Jan. 23, 2009. Mr. Rahmanizad lives in unit 310 of a condominium building on Beverly Glen Boulevard, which is operated by the HOA. On July 15, 2003, a water leak in the condominium directly above unit 310 resulted in water damage to Mr. Rahmanizad's unit. Mr. Rahmanizad permitted a restoration company into the unit to dry the carpet and permitted Hillman Environmental Group to inspect the unit in October 2003. In November 2003, Hillman reported that Mr. Rahmanizad's unit contained "visible microbial growth on the walls in the hallway closet and on the walls and on the ceiling in the bathroom." Hillman recommended "microbial remediation and asbestos abatement [to include removal of, at] a minimum, the visibly microbially contaminated materials and the wet and water damaged materials ..., as well as any additional areas discovered during the remediation." The HOA asked Mr. Rahmanizad to move from his unit so the remediation could be performed. Mr. Rahmanizad denied his unit had any mold and refused to vacate unless the HOA paid his relocation expenses. The HOA submitted a claim to its insurance carrier for the damage to the building caused by the water. The HOA allocated US$14,148.74 of the insurance payment to Mr. Rahmanizad's unit. Of that amount, US$8,043.74 was earmarked to install new drywall, carpet, tile and fixtures. On April 21, 2004, the HOA sued Mr. Rahmanizad for injunctive and declaratory relief. The HOA took Mr. Rahmanizad's default on the complaint. On Dec. 17, 2004, at Mr. Rahmanizad's expense, Envirocheck, Inc., inspected unit 310 and found no abnormal airborne fungal spore conditions. However, the HOA refused to place reliance on the report because it had been redacted to omit the name of the inspector. The trial court set aside the default and on Jan. 20, 2005, Mr. Rahmanizad filed a cross-complaint for conversion, claim and delivery, breach of fiduciary duty, constructive trust and money had and received with respect to US$8,043.74 of the insurance proceeds held by the HOA. On March 28, 2005, the HOA filed a motion to compel inspection of unit 310. Mr. Rahmanizad opposed the motion to compel. On April 22, 2005, Mr. Rahmanizad and the HOA agreed to have Hillman inspect the unit a second time. On April 28, 2005, Hillman reported it had found no "visible microbial growth" or "moisture damage." On Jan. 12, 2006, the HOA gave notice of motions for summary judgment on its complaint and on Mr. Rahmanizad's cross- complaint. The HOA asserted Mr. Rahmanizad had no defense to the HOA's complaint because the HOA had the right to enter the unit to perform necessary repairs at no expense to Mr. Rahmanizad. The HOA sought summary judgment on Mr. Rahmanizad's cross- complaint on the ground Mr. Rahmanizad was not entitled to the insurance proceeds. On June 1, 2006, the trial court denied the HOA's motions for summary judgment. On Nov. 22, 2006, Mr. Rahmanizad filed a motion for summary judgment on the HOA's complaint. On Feb. 22, 2007, the trial court adopted its tentative ruling which granted Mr. Rahmanizad's motion for summary judgment. On March 12, 2007, at a bench trial on Mr. Rahmanizad's cross- complaint against the HOA for the insurance proceeds allocated to unit 310, the trial court received numerous exhibits into evidence. On April 2, 2007, the trial court granted judgment in Mr. Rahmanizad's favor on the HOA's complaint and granted judgment in favor of the HOA on Mr. Rahmanizad's cross-complaint. On May 29, 2007, Mr. Rahmanizad appealed the judgment in favor of the HOA on Mr. Rahmanizad's cross-complaint, entered April 2, 2007. The HOA filed a motion seeking to be declared the prevailing party and for attorney fees and costs in the amount of US$92,335.25. Mr. Rahmanizad also filed a motion seeking to be declared the prevailing party in the litigation and for an award of attorney fees as in the amount of US$35,088.50. On July 26, 2007, Mr. Rahmanizad appealed the trial court's ruling on the post judgment order entered June 26, 2007. On Aug. 16, 2007, the HOA filed a cross appeal from the appeal filed July 26, 2007. By order dated Sept. 24, 2007, the Appeals Court granted the HOA's motion to consolidate the appeals. The judgment was affirmed. Craig M. Fields, Esq., of Glickfeld, Fields & Jacobson, represented Montecito Condominium Homeowner's Association. Jeffrey F. Sax, Esq., of the Law Offices of Jeffrey F. Sax, represented Herschel Rahmanizad. ASBESTOS LITIGATION: Rogers Records $16.64M Liability at Dec. 31 ---------------------------------------------------------------- Rogers Corporation's long-term asbestos-related liabilities were US$16,644,000 at Dec. 31, 2008, compared with US$19,341,000 at Dec. 30, 2007, according to a Company report, on Form 8-K, filed with the Securities and Exchange Commission on Feb. 18, 2009. The Company's long-term asbestos-related liabilities were US$19,341,000 at Sept. 28, 2008. (Class Action Reporter, Nov. 7, 2008) The Company's current asbestos-related liabilities were US$4,632,000 at Dec. 31, 2008, compared with US$4,303,000 at Dec. 30, 2007. The Company's long-term asbestos-related insurance receivables were US$19,416,000 at Dec. 31, 2008, compared with US$19,149,000 at Dec. 30, 2007. The Company's current asbestos-related insurance receivables were US$4,632,000 at Dec. 31, 2008, compared with US$4,303,000 at Dec. 30, 2007. Headquartered in Rogers, Conn., Rogers Corporation develops and manufactures high performance, specialty-material-based products for applications including: portable communications, communications infrastructure, computer and office equipment, consumer products, ground transportation, aerospace and defense. ASBESTOS LITIGATION: AMSF Lawsuit v. Halliburton Company Stayed ---------------------------------------------------------------- The Archdiocese of Milwaukee Supporting Fund's (AMSF) lawsuit involving asbestos filed against Halliburton Company remains stayed in federal district court pending the outcome of an appeal. In June 2002, a class action lawsuit was filed against the Company in federal court alleging violations of the federal securities laws after the Securities and Exchange Commission initiated an investigation in connection with the Company's change in accounting for revenue on long-term construction projects and related disclosures. In the weeks that followed, about 20 similar class actions were filed against the Company. Several of those lawsuits also named as defendants several of the Company's present or former officers and directors. The class action cases were later consolidated, and the amended consolidated class action complaint, styled Richard Moore, et al. v. Halliburton Company, et al., was filed and served upon the Company in April 2003. As a result of a substitution of lead plaintiffs, the case is now styled Archdiocese of Milwaukee Supporting Fund (AMSF) v. Halliburton Company, et al. The Company settled with the SEC in the second quarter of 2004. In June 2003, the lead plaintiffs filed a motion for leave to file a second amended consolidated complaint, which was granted by the court. In addition to restating the original accounting and disclosure claims, the second amended consolidated complaint included claims arising out of the 1998 acquisition of Dresser Industries, Inc. by Halliburton, including that the Company failed to timely disclose the resulting asbestos liability exposure. In April 2005, the court appointed new co-lead counsel and named AMSF the new lead plaintiff, directing that it file a third consolidated amended complaint and that the Company file its motion to dismiss. The court held oral arguments on that motion in August 2005, at which time the court took the motion under advisement. In March 2006, the court entered an order in which it granted the motion to dismiss with respect to claims arising prior to June 1999 and granted the motion with respect to certain other claims while permitting AMSF to re-plead some of those claims to correct deficiencies in its earlier complaint. In April 2006, AMSF filed its fourth amended consolidated complaint. The Company filed a motion to dismiss those portions of the complaint that had been re-pled. A hearing was held on that motion in July 2006, and in March 2007 the court ordered dismissal of the claims against all individual defendants other than the Company's Chief Executive Officer . The court ordered that the case proceed against the Company's CEO and Halliburton. In September 2007, AMSF filed a motion for class certification, and the Company's response was filed in November 2007. The court held a hearing in March 2008, and issued an order Nov. 3, 2008 denying AMSF's motion for class certification. AMSF then filed a motion with the Fifth Circuit Court of Appeals requesting permission to appeal the district court's order denying class certification. The Fifth Circuit granted AMSF's motion and the order denying class certification is currently on appeal. As of Dec. 31, 2008, the Company had not accrued any amounts related to this matter. Headquartered in Houston, Halliburton Company offers services and products to customers through its two business segments for the exploration, development, and production of oil and gas. The Company serves major, national, and independent oil and gas companies throughout the world. ASBESTOS LITIGATION: Halliburton Records No Liability at Dec. 31 ---------------------------------------------------------------- Halliburton Company, at Dec. 31, 2008, had not recorded any liability associated with asbestos-related indemnifications, according to its annual report filed with the Securities and Exchange Commission on Feb. 18, 2009. At Dec. 31, 2004, the Company resolved all open and future asbestos- and silica-related claims in the prepackaged Chapter 11 proceedings of DII Industries LLC, Kellogg Brown & Root LLC, and the Company's other affected subsidiaries that had previously been named as defendants in asbestos- and silica- related lawsuits. During 2004, the Company settled insurance disputes with substantially all the insurance companies for asbestos- and silica-related claims and all other claims under the applicable insurance policies and terminated all the applicable insurance policies. Under the insurance settlements entered into as part of the resolution of its Chapter 11 proceedings, the Company has agreed to indemnify its insurers under certain historic general liability insurance policies in certain situations. Headquartered in Houston, Halliburton Company offers services and products to customers through its two business segments for the exploration, development, and production of oil and gas. The Company serves major, national, and independent oil and gas companies throughout the world. ASBESTOS LITIGATION: Cleanup at Marion Memorial to Cost $301,000 ---------------------------------------------------------------- According to officials of Marion, Ill., asbestos removal and demolition of the Marion Memorial Hospital cost about US$301,000, the Mesothelioma & Asbestos Awareness Center reports. On Feb. 16, 2009, the City Council voted on bids for both asbestos removal and the demolition of the Marion Memorial Hospital. Council members approved bids for the work to be done by two individual companies. The Company that will be conducting the asbestos abatement work is Champion Environmental Services and is based out of Gilbert, Ill. ASBESTOS LITIGATION: Miller v. Illinois Central Filed on Feb. 13 ---------------------------------------------------------------- James A. Miller, on Feb. 13, 2009, filed an asbestos-related lawsuit against Illinois Central Railroad Company in St. Clair County Circuit Court, Ill., The Madison St. Clair Record reports. Mr. Miller alleged he had contracted an asbestos-related disease while working for Illinois Central. According to the suit, he worked for Illinois Central from 1946 until 1951 as a machinist apprentice and machinist. Throughout his work in, on and around locomotive boilers, he was exposed to asbestos dust or fibers. Because of his exposure, Mr. Miller claims he has contracted an asbestos-related disease, has suffered great pain, extreme nervousness and mental anguish and believes his illness is permanent in nature. In Case No. 09-L-0079, Mr. Miller has also incurred medical costs, has sustained a loss of earnings, has experienced a diminished ability to render services, society, affection, counseling and support to his family and has experienced a shortened life expectancy. According to the suit, Illinois Central was negligent by failing to warn Mr. Miller of the true nature and hazardous effects of asbestos-containing products. The Company also negligently failed to provide instructions or a method for the safe use of asbestos-containing products. In the three-count suit, Mr. Miller seeks a judgment in excess of US$50,000, plus costs and other relief the court deems appropriate. William P. Gavin, Esq., (Gavin Law Firm in Belleville, Ill.), H. Seward Lawlor, Esq., and Kip A. Harbison, Esq., (Glasser and Glasser in Norfolk), and Willard J. Moody Jr., Esq., (Moody, Strople, Kloeppel and Higginbotham) in Portsmouth, represent Mr. Miller. ASBESTOS LITIGATION: Kavanagh to Pay GBP4T for Disposal Breaches ---------------------------------------------------------------- Simon Edward Kavanagh, a building contractor from Ipswich, Suffolk, England, on Feb. 18, 2009, was issued a total fine of GBP1,000 and ordered to pay GBP1,500 towards court costs, the Evening Star reports. The 39-year-old Mr. Kavanagh had admitted to dumping 60 to 70 tons of asbestos in the ground. Mr. Kavanagh was employed to demolish six pig pens at the former Shepherd and Dog piggery in Nacton. The roofs were corrugated bonded asbestos. However, on Aug. 22, 2007, he was seen burying most of it on site in three trenches. South East Suffolk Magistrates' Court was told Mr. Kavanagh and his workers were witnessed smashing the roofs and creating dust, which covered caravans and cars on nearby land. None of the workers were wearing protective equipment. District Judge David Cooper heard how the area near some Bronze Age burial mounds, which is now a car park for new office buildings, will need to be monitored to make sure it is not disturbed and does not pose a risk for the future development of the site. Judge Cooper said that Mr. Kavanagh had been honest and the financial advantage from his actions was nil, but his actions had "showed a total lack of regard for the environment and safety of others." After the hearing, Environment Agency officer Darren Smith said, "Once asbestos has been smashed and is in the ground it is very difficult to remove it safely. "This is an example of really bad practice on Mr. Kavanagh's part and we hope that others will learn from his lesson." ASBESTOS LITIGATION: Molloy Denies Grace Change-of-Venue Motion ---------------------------------------------------------------- U.S. District Judge Donald Molloy, on Feb. 18, 2009, denied W. R. Grace & Co.'s request to file a motion for change of venue in a case over a vermiculite mine in Libby, Mont., the Billings Gazette reports. The case involves public exposure to asbestos that caused hundreds of deaths and illnesses in the Libby area, where the Company used to operate a vermiculite mine. Judge Molloy had earlier denied a September 2005 request to move the trial. On Feb. 17, 2009, the Grace defendants filed a motion asking Judge Molloy's permission to file another change-of-venue request. Judge Molloy denied the request, "subject to renewal in the event that a fair and impartial jury cannot be seated." The trial is scheduled to begin on Feb. 19, 2009. ASBESTOS LITIGATION: Claims v. Goodyear Drop to 99T at Dec. 31 ---------------------------------------------------------------- The Goodyear Tire & Rubber Company recorded 99,000 asbestos- related claims during the year ended Dec. 31, 2008, compared with 117,400 claims during the year ended Dec. 31, 2007, according to the Company's annual report filed with the Securities and Exchange Commission on Feb. 18, 2009. The Company faced 118,200 pending asbestos cases during the nine months ended Sept. 30, 2008. (Class Action Reporter, Nov. 7, 2008) The Company is a defendant in lawsuits alleging various asbestos-related personal injuries purported to result from alleged exposure to certain asbestos products manufactured by the Company or present in certain of its facilities. During the year ended Dec. 31, 2008, the Company noted 4,600 new claims filed and 23,000 claims settled or dismissed. Asbestos payments amounted to US$20 million. During the year ended Dec. 31, 2007, the Company noted 2,400 new claims filed and 9,000 claims settled or dismissed. Asbestos payments amounted to US$22 million. To date, the Company has disposed of about 72,100 claims by defending and obtaining the dismissal thereof or by entering into a settlement. The sum of the Company's accrued asbestos- related liability and gross payments to date, including legal costs, totaled US$325 million through Dec. 31, 2008 and US$297 million through Dec. 31, 2007. In 2008, a decision by the Ohio Supreme Court to retroactively apply an Ohio state law resulted in the dismissal of about 20,000 cases. The Company had recorded gross liabilities for both asserted and unasserted claims, inclusive of defense costs, totaling US$132 million at Dec. 31, 2008 and US$127 million at Dec. 31, 2007. The portion of the liability associated with unasserted asbestos claims and related defense costs was US$71 million at Dec. 31, 2008 and US$76 million at Dec. 31, 2007. At Dec. 31, 2008, the Company's liability with respect to asserted claims and related defense costs was US$61 million, compared to US$51 million at Dec. 31, 2007. The Company had recorded a receivable related to asbestos claims of US$65 million at Dec. 31, 2008, compared wit US$71 million at Dec. 31, 2007. Of these amounts, US$10 million at Dec. 31, 2008 and US$8 million at Dec. 31, 2007 were included in Current Assets as part of Accounts receivable. The Company said it believes that, at Dec. 31, 2008, it had about US$180 million in aggregate limits of excess level policies potentially applicable to indemnity payments for asbestos products claims, in addition to limits of available primary insurance policies. Some of these excess policies provide for payment of defense costs in addition to indemnity limits. A portion of the availability of the excess level policies is included in the US$65 million insurance receivable recorded at Dec. 31, 2008. The Company also had about US$15 million in aggregate limits for products claims, as well as coverage for premise claims on a per occurrence basis and defense costs, available with the Company's primary insurance carriers through coverage-in-place agreements at Dec. 31, 2008. Headquartered in Akron, Ohio, The Goodyear Tire & Rubber Company manufactures tires. The Company's 2008 net sales were US$19.5 billion, and it had a net loss in 2008 of US$77 million. The Company develops, manufactures, markets, and distributes tires for most applications. It also manufactures and markets rubber- related chemicals for various applications. ********* A list of Meetings, Conferences and Seminars appears in each Wednesday's edition of the Class Action Reporter. Submissions via e-mail to carconf@beard.com are encouraged. Each Friday's edition of the CAR includes a section featuring news on asbestos-related litigation and profiles of target asbestos defendants that, according to independent research, collectively face billions of dollars in asbestos-related liabilities. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Frederick, Maryland USA. Glenn Ruel S. Senorin, Stephanie T. Umacob, Gracele D. Canilao, and Peter A. Chapman, Editors. Copyright 2009. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. 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